Supreme Court of California Justia
Citation 43 Cal.4th 959 original opinion 44 Cal. 4th 385a modification
People v. Richardson



Filed 5/22/08




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S029588

v.

CHARLES KEITH RICHARDSON,

Tulare

County

Defendant and Appellant. )

Super.

Ct.

No.

27383



Defendant Charles Keith Richardson was convicted by a jury of the murder

of April Holley (Pen. Code, § 187, subd. (a)), as to which the jury found true

felony-murder special circumstances for burglary, rape, sodomy and lewd and

lascivious acts on a child under the age of 14. (Pen. Code, § 190.2, subd. (a)(17).)

The jury also convicted defendant of residential burglary (Pen. Code, § 459),

forcible rape (Pen. Code, § 261, subd. (a)), lewd and lascivious acts on a child

under 14 (Pen. Code, § 288, subd. (b)), and sodomy (Pen. Code, § 286, subd. (c)),

all of these counts also involving the murder victim, April Holley.1 In a bifurcated

proceeding, the trial court found true additional allegations that defendant had

suffered prior convictions for a serious felony and a sex offense. (Pen. Code,

§§ 667, 667.6, subd. (b).) The jury returned a death verdict for the murder. The

trial court declined to modify the verdict (Pen. Code, § 190.4, subd. (e)), and

1 This was defendant’s second trial on these charges. His first trial ended in a
mistrial after the jury was unable to reach a verdict.

1




sentenced defendant to death.2 This appeal is automatic. (Cal. Const., art. VI,

§ 11, subd. (a); § 1239, subd. (b).)

We affirm the judgment but, for the reasons given below, remand the case

on the issue of restitution. (See People v. Vieira (2005) 35 Cal.4th 264, 305-306.)

I. FACTS

A. Guilt Phase

1. Overview of Prosecution Guilt Phase Evidence

The prosecution’s theory in this case was that defendant and another man,

Steven Brown, raped and sodomized 11-year-old April Holley and then drowned

her in the bathtub of the trailer where she lived with her mother and older sister,

both of whom were absent the night of the murder.3 The evidence with which the

prosecution sought to convict defendant consisted of the following:

(1) defendant’s statement to a witness evincing awareness that the victim, whom

he knew, was alone on the night she was murdered; (2) defendant’s statements in

the immediate aftermath of the murder in which he either admitted killing the

victim or revealed details about the murder that had not been released to the

public; (3) defendant’s flight from the scene the day after the murder;

(4) defendant’s shifting stories in statements he made to the police culminating in

an admission — quickly retracted — that he had committed the murder; (5)

defendant’s statement to a fellow inmate that he had murdered Holley; (6)

2 Defendant was also sentenced to a total of 21 years on the remaining counts.
All further unspecified statutory references are to the Penal Code.

3 The prosecution believed a third person, then 15-year-old Bobby Joe Marshall,
Jr., was also present when the murder occurred; he was initially charged with the
murder but this charge was dismissed and he testified against defendant, although
denying he was present. Brown was also charged with the Holley murder, tried
separately and, upon conviction, also sentenced to death.

2



evidence that pubic hairs found at the crime scene were consistent with

defendant’s hair; and (7) Steven Brown’s subsequent attempt to commit a similar

crime against another victim.

The defense disputed each circumstance and statement that connected

defendant to the murder and argued that Brown alone committed the crime.

2. The Events of December 2-3, 1988

On Friday, December 2, 1988, Naomi Holley took her 11-year-old

daughter, April, to the home of a family friend, Melanie Lewis, to spend the

weekend with Lewis, Lewis’s boyfriend Richard Schnabel, and their children.

Naomi, April, and Naomi’s older daughter, Tammy, lived on West Addie Avenue

in a neighborhood just south of the city of Tulare called Matheny Tract. Tammy

Holley was in jail that weekend. After dropping April off, Naomi spent the night

at the home of friends. On Saturday afternoon, she decided to go to a party in

Porterville where she spent Saturday night; she did not tell April of her plans.

At Lewis’s residence, meanwhile, a $20 bill belonging to Tawny Schnabel,

Richard’s daughter, went missing and was found in April’s coat pocket. On

Saturday, December 3, after the theft was discovered, Lewis decided to take April

back to her mother and she and April went looking for Naomi. They went to the

Holley residence but no one was home. They also looked for Naomi at the house

of the friend with whom she had stayed the previous night, but did not find her.

Eventually, Lewis took April back to Lewis’s residence. She stopped on the way

to pick up her sister, who was supposed to baby-sit while Lewis, Richard

Schnabel, and Tawny Schnabel went Christmas shopping that night. After they

returned, April biked to the El Rancho Motel to visit her friend Barbara O’Hearn.

April arrived about 4:00 p.m. and stayed for an hour before returning to Lewis’s

residence.

3



From Lewis’s residence, April called her friend, 11-year-old Lisa

Matthews, and asked her to come to the Holley residence to spend the night. April

pretended that she was talking to her mother. Although Lisa’s grandmother

refused to allow her to spend the night with April, Lisa agreed to come. Lisa

started out for the Holley residence but turned back because it was too cold and

foggy. April, meanwhile, got a ride home from Richard Schnabel’s two teenage

daughters. April arrived at her house between 7:30 and 8:00 p.m. She went to the

front door, but could not get in so she went around to the back of the house.

Sometime after arriving at her home, April went to the house of a neighbor,

Lorraine Hughes, and knocked on her door. Hughes was home but did not answer

the door. She last saw April walking back in the direction of her own house.

Defendant also lived in Matheny Tract with the Marshall family in the

Marshalls’ trailer, not far from where April lived.4 Living in the Marshalls’

residence was Bob Marshall, Sr., his sister Linda Land, his sons, Michael and

Bobby Joe Marshall, Jr., and Michael Marshall’s girlfriend, Carol Brouchard.

Defendant was friendly with April’s older sister, Tammy, and had visited her at

the Holley residence. Naomi Holley testified that defendant had only been at her

house on two occasions and had never spent the night there. Her friends, Roger

Rummerfield and Renee Bailey, who were almost daily visitors to her house,

testified that defendant had only been in the house two or three times in November

and December, 1988. According to Naomi Holley, the last time defendant had

been at the Holley residence was on November 11, 1988. On that date, April and

another child, Kenny Maxwell, were drawing pictures and April drew two pictures

4 The distance between the Marshall residence and the Holley residence was 998
feet and could be covered in slightly more than four minutes on foot.

4



for defendant. Naomi Holley saw these pictures in her house on Saturday,

December 3, before she left for Porterville.

On that Saturday, defendant went back and forth between the Marshalls’

house and the nearby residence of Barney Hernandez. Defendant was friends with

Barney Hernandez’s nephew, Robert Hernandez, who lived with his uncle. On

one of these visits, around 7:30 p.m., defendant told Barney Hernandez that he had

seen April Holley out walking by herself. Defendant left after a few minutes, but

then returned about an hour later. He and Robert Hernandez took some tires

upstairs and then defendant ate. While he was eating, he told Barney Hernandez

that he had gone to the Holley residence and that April was there alone.

Defendant also asked Robert Hernandez to inject him with cocaine. As defendant

was leaving, Barney Hernandez told him to tell the Marshalls that April was by

herself. Defendant said “he was gonna check her out, and he was gonna take care

of it.” This conversation occurred about 9:10 p.m.

Between 9:00 and 9:30 p.m., several individuals who lived near the Holley

residence heard screams coming from the direction of that residence. One of

them, an 11-year-old boy named Jeremy Johnson who knew April, testified that it

was April who screamed. Two other witnesses testified the screams were those of

a young girl.

About 11:00 p.m., defendant appeared at the bus that served as Jimmy

Rousanvall’s residence. The bus was parked behind Rousanvall’s father’s house. 5

Rousanvall and his friend, 17-year-old Tammy Petrea, were watching television

when defendant arrived. Petrea was an admitted drug addict and prostitute.

5 The distance between Rousanvall’s bus and the Holley residence was 1,059 feet,
or about six minutes away on foot.

5



Defendant asked whether they wanted to use cocaine and Petrea said yes.

Rousanvall left and went into his father’s house, leaving defendant alone with

Petrea. After defendant and Petrea shared defendant’s cocaine, defendant made a

pass at her by putting his hand on her leg. Petrea, however, was frightened by

defendant, who looked “scary,” and she went outside. Defendant followed her and

asked her whether she had heard about April being killed. Petrea said she had not.

Defendant said that “they did it.” He told her that April “had something on him,

and he didn’t want her to get on the witness stand and testify against them . . .

[b]ecause then he’d go to jail or something like that.” He told her that he “ f—ked

her, and he drowned her . . . [i]n the bathtub.” He told her that he plugged the

bathtub with a rag and then drowned her. Defendant told Petrea that “if [she] told

anybody, that he’d take care of [her], or someone else will.” Petrea was frightened

by the threat. Then, as he was leaving, defendant also told her that “[p]ayback was

a motherf——ker.”6 Initially, Petrea did not tell police about defendant’s

statement because she was afraid.

Johnny Donald, who was walking in the vicinity of the Holley residence at

about 11:30 p.m., testified that he saw defendant and another man, who fit the

description of Steven Brown, out walking, though not together, in that area.

Bobby Joe Marshall, Jr., testified that, after an evening of driving around

and using drugs with his friend Joe Mills and Steven Brown, he and Mills returned

to the Marshall residence about 2:00 a.m. According to Marshall, defendant called

6 Rousansvall’s testimony from the first trial was read into evidence as part of
defendant’s case. He corroborated Petrea’s account of defendant’s arrival at the
bus and that he left when defendant and Petrea began to use drugs. He testified
further that when he returned, defendant was exiting the bus and Petrea was
behind him. Rousanvall was also confronted with a statement he made to police in
which he said defendant had arrived between 8:00 and 8:30 p.m.

6



him into the bedroom where he was sleeping and told Marshall that he had raped

and killed April Holley. Defendant then warned him not to say anything to

anyone.7

3. The Events of December 4

a. The Discovery of April Holley’s Body

On the morning of Sunday, December 4, Orville Bailey and Roger

Rummerfield — who lived with Bailey’s daughter at Bailey’s house — went to

the site of a burned down house that Bailey owned to tear it down. About noon,

Rummerfield, who was a friend of Naomi Holley’s, went to the Holley residence

to use the bathroom. Finding the front door padlocked, he went around to the back

door and entered the residence. After calling out and getting no response, he went

toward the bathroom. The bathroom door was cracked open. Rummerfield

entered and found April lying in the bathtub. April’s head was beneath the spout

at the drain end of the tub and she was in a fetal position, with her right hand

between her legs and her left hand behind her back. She wore only a long white

sweatshirt.

7 After defendant’s arrest, Marshall himself was arrested and charged with
various offenses in connection with April Holley’s murder. It was at that point he
told police that defendant had confessed to him. The charges were dismissed.
Nonetheless, even the prosecutor did not believe the account that Marshall gave at
defendant’s trial of his whereabouts and activities. Rather, the prosecutor told the
jury that he believed Marshall was present when defendant and Brown killed April
Holley, and that the significance of Marshall’s testimony was that he was the
connecting link between Brown — whom he said he had been with that evening
— and defendant. In support of its claim that Marshall was present at the murder,
the prosecution presented evidence that Marshall told a woman named Vicky
Lopez that, defendant, Marshall and a third person were at the crime scene when
“everything happened.” He told her all of them had “f—ked” the victim and that,
afterwards, he got rid of the shoes he wore to eliminate any shoe print matches.

7



Her face was partly covered with water. She had no pulse. Rummerfield

ran out of the house toward Bailey and yelled at him to call an ambulance because

“something’s happened to April.” Rummerfield also asked the Holleys’ next door

neighbors to call a paramedic and then went back to the Holley residence and

kicked in the front door to give the paramedics access.

Bailey, meanwhile, went to a number of houses to look for a phone. He

spoke to Mrs. Gore, who directed him to a blue house, but when he got there and

asked to use the phone, a young man told him it had been taken care of. Bailey

then went into the Holley residence. He saw April and was able to confirm

Rummerfield’s description of her.8

Paramedic Miguel Hernandez and his partner, Kathy Wojtasiewicz, were

the first emergency personnel on the scene, arriving about 12:45 in response to a

call about a possible drowning. At the Holley residence, Rummerfield told

Hernandez, “she’s dead,” and led him into the bathroom. Hernandez saw that

April was “in somewhat of a fetal position” with her face facing the back wall and

her chest toward the bottom of the bathtub. The right side of her face was half-

covered in water. Hernandez estimated there were four to six inches of water in

the tub.9 Hernandez lifted April’s body from the bathtub and laid her on the

kitchen floor. Both he and his partner observed blood around the area of April’s

8 The defense presented evidence that four people besides Rummerfield and
Bailey entered the Holley residence before the paramedics arrived and saw April.
However, none of these people touched the body, nor did they know April had
been sexually assaulted, nor did they discuss what they observed with anyone on
that day.

9 Various other estimates of the amount of water in the bathtub were given at
defendant’s trial, ranging from three inches to six inches.

8



buttocks and discussed whether she had been sexually assaulted, but did not

discuss it with any civilians.

Members of the volunteer fire department and the Tulare County Sheriff’s

Department also arrived on the scene. Sergeant Harold Jones of the sheriff’s

department arrived about 2:00 p.m. Based on his observations of the blood around

April’s buttocks, he discussed with other officers whether she may have been

sodomized, but none of the officers discussed this possibility with any civilians.

Indeed, it was the policy of the sheriff’s department not to release any information

to civilians about an investigation.

Dr. Gary Walter, a pathologist, arrived at the Holley residence in the mid-

afternoon. Because of April’s submersion in the bathtub, Dr. Walter was unable to

determine the time of death using body core temperature. Similarly, because the

use of rigor mortis to determine time of death is temperature dependent, he was

unable to use rigor mortis to establish time of death with any precision. In

response to a hypothetical question from the prosecutor, Dr. Walter testified that

the presence of rigor mortis was consistent with the murder’s having occurred

around 9:00 p.m. the previous evening. He also testified, however, that April

could have been murdered at any time from 24 to three hours before he examined

her. Dr. Walters was unable to determine whether April had been sexually

assaulted and conveyed that opinion to the police at the scene.

An autopsy performed on April’s body the Monday after her murder

revealed injuries to her anus and vagina consistent with rape and sodomy; these

acts were perpetrated on her while she was alive. Dr. McCann, a pediatrician with

a subspecialty in childhood sexual abuse, who attended the autopsy, opined that it

was unlikely the sexual assault was committed by a single individual. Dr. Leonard

Miller, the pathologist who performed the autopsy, opined, based on the injuries

he observed, that April was forcibly drowned by “[s]omeone . . . holding this

9



individual down, presumably underneath water,” in the bathtub. Based on the

presence of petechiae — small blood vessels that have ruptured — on April’s face

and around her eyes and eyelids, Dr. McCann opined that she had struggled

violently as she was being drowned. McCann, observed, however that there were

no signs of injuries to her legs or feet that might have been expected if she were

struggling. Dr. Miller also observed that the absence of roughening of the skin of

her lower legs indicated that they may not have been immersed in water.

b. Defendant’s Movements on December 4

On Sunday morning, December 4, between 9:30 and 10:00 a.m., Kim

Fleeman arrived at the Marshall residence to give her cousin, Nancy Lee Marshall,

a ride into town. Once there, she went to use the bathroom, walking past the room

that defendant occupied. She saw defendant and Bobby Joe Marshall in the

bedroom and heard a voice she recognized as Steven Brown, who was her sister’s

boyfriend. Bobby Joe Marshall said, “we’ve gotta get our stories straight.”

Defendant said, “Where are we gonna say we were the rest of the night?” She also

heard Brown say, “The little bitch deserved everything she got.” While she was in

the bathroom, the bedroom door was shut and she was unable to hear what else

was said.

Barney Hernandez saw defendant around 8:00 that morning and noticed he

had blood on his shirt and that he had shaved his goatee. Defendant left after

unsuccessfully attempting to call someone in Oakland. Hernandez saw defendant

again around 11:00 a.m. when he gave defendant a ride. Defendant told him that

he was leaving town and going to Oakland.

Sometime after noon, defendant appeared at the bus where Jimmy

Rousanvall lived. There were a number of people present, including Karen Gore

and Martha Delgado. Karen Gore testified that defendant said that April had been

10



found in the bathtub and had drowned. Martha Delgado testified that defendant

said that Roger Rummerfield had told him that April had been raped and killed.

Rummerfield, however, did not see or speak to defendant that day. Delgado asked

him why he was not at the Holley residence and he said “he didn’t think the cops

would want him down there.” When she asked, “why not,” he said, “I just don’t

think they’d want me down there, so I just left.”

Rafael del Real testified that he saw defendant sometime between 1:00 and

1:30 p.m. in the vicinity of the Holley residence. According to del Real, defendant

looked back and forth nervously at the Holley residence. His behavior was odd

enough that del Real said to the friend he was with, “Hey, look, what if it was that

guy. Look, he looks scared.”

Sometime between 3:00 and 4:00 p.m., defendant’s friend Brian Pounds

came to the Marshall residence looking for defendant, but defendant was not there.

Pounds returned that evening, when defendant was present, and defendant packed

some clothes and left with Pounds to go to San Leandro.

4. The Ensuing Investigation

a. April’s Drawings and Defendant’s Statements About the

Murder

On December 7, police recovered the drawings April had made for

defendant — and which Naomi Holley said she saw at her residence on the day

April was murdered — from defendant’s bedroom at the Marshall residence. On

Friday, December 9, while defendant was in San Leandro or Hayward, he talked to

an acquaintance named Pamela Anderson. Defendant told her that a little girl he

knew had been raped and killed. He told her that “they broke her arm,” and “that

her vagina was so mutilated, you couldn’t tell she had one.” Defendant told her

that the girl “was put in the bathtub, or strangled and drowned in the bathtub.” He

also told her the girl was supposed to have spent the night at a friend’s house but

11



“something had [gone] wrong and she came home.” He did not tell her that he had

been speaking to people in Tulare about the crime. He did say, however, that “the

police would be looking for him . . . because he was there that day, and because of

his past history, his background . . . but he said that he didn’t do it.”

b. Defendant’s Statements to Police

On December 11, a week after April’s murder, two members of the Tulare

County Sheriff’s Department, Lieutenant Gary Harris and Sergeant Harold Jones,

interviewed defendant in the parking lot of a Denny’s restaurant in San Leandro.10

Defendant was advised of, and waived, his Miranda rights (Miranda v. Arizona

(1966) 384 U.S. 436) (Miranda) and appeared alert, responsive, and eager to

cooperate. He was not under arrest. The interview was conducted in the backseat

of an unmarked police car. The interview was taped and the tape was played at

defendant’s trial.

Initially, defendant told police that on the night of Saturday, December 3,

he went into the City of Tulare to pay off debts he owed to someone named Steve

and then he went riding around in a brown Monte Carlo that he borrowed from

someone named Steve Lynch. He did not see April Holley that night but he

acknowledged that he knew her because of his friendship with her sister, Tammy.

The last time he had been at the Holley residence was a week before the murder

when April had drawn him pictures which he left at the Marshalls’ residence.

10 Before going to San Leandro to interview defendant, Tulare County deputies
obtained a warrant for his arrest based on his alleged failure to update his sexual
offender registration by providing a change of address when he moved from the
City of Tulare to the Marshalls’ residence in Tulare County. The purpose of
obtaining the arrest warrant was to allow the police to arrest defendant in San
Leandro if that became necessary, but the police decided to wait until defendant
returned to Tulare County to arrest him.

12



Later in the interview he said that, after he left Tulare, he had called the Marshalls

specifically to make sure that the drawings were still in his room.

Defendant said he heard about April’s death from someone named Tanya,

whose last name and age he could not remember. She did not provide any details,

nor were any details provided by a second person named Harvey who confirmed

the news. A little later in the interview he said he had heard from Bob Marshall

that April was found dead in the bathtub and from a “couple of people” that she

was strangled and drowned. He told the officers he had not gone to the Holley

residence on Saturday night.

Defendant told the police that he did not expect Brian Pounds and Donald

Pounds when they turned up at the Marshalls’ residence on Sunday evening and

asked him to come with them. He said he was “like part of their family [and] me

and Brian are like blood brothers.” He later said he wanted to return to Tulare

County because he had left behind some of his clothes.

Under further questioning, defendant changed his story regarding his

whereabouts on Saturday night. He admitted lying about riding around in a brown

Monte Carlo, and instead told the police he had been out selling drugs with a man

named Robert Cinsenio. Defendant said Cinsenio picked him up and they drove to

different towns and cities in King County. Defendant said he had no phone

number for Cinsenio for the officers to verify his alibi. Defendant volunteered his

opinion that whoever killed April was “a sick mother f—-ker,” and, having just

been paroled out of San Quentin, he hated “a child molester.” He added, “I love

kids. Always have.”

Following this first interview, defendant agreed to return to Tulare to

answer more questions. Once he arrived there, on Monday, December 12, he was

arrested on the misdemeanor arrest warrant for violating the sex offender

registration statute. Defendant became angry until it was explained to him that he

13



was not being arrested for April’s murder. That afternoon he agreed to a second

interview because he wanted to explain some of his earlier statements.

In his second interview, defendant retracted his statement that he had not

seen April the day she was killed. He told police he had seen her with Bobby Joe

Marshall that afternoon and she waved at him. After the police falsely told

defendant that someone had seen him at the Holley residence on Saturday night,

defendant admitted he had gone up to the door that night and knocked but left

when no one answered. After police falsely told him that he had been seen exiting

the back door of the Holley residence, he said he was “loaded on cocaine when I

went over there,” and was looking for Tammy Holley but left after he heard a

noise like a window being broken and heavy breathing. When police confronted

him with Barney Hernandez’s statement that defendant had told him he knew

April was alone, defendant, after first denying having made the statement,

admitted he had talked to April when he had gone looking for her sister. “April,

she told me Tammy wasn’t there, Tammy was in jail, uh, didn’t know where her

mom was.” Defendant said he had told her she should not be alone and walked

out the back door. Defendant also admitted having told Hernandez that he knew

April was alone. He then said, contradicting his earlier accounts of how he had

spent Saturday night that, after leaving the Hernandez residence he went back to

the Marshalls’ residence, watched television and went to sleep.

The police then falsely told defendant that his semen had been found in

April. Defendant denied it was his and after an angry exchange said, “I was there

. . . . But I didn’t kill that little girl.” Defendant said that April was already dead

and in the bathtub when he saw her. Defendant said he saw a man running out of

the Holley residence, and then he went inside and saw April in the bathtub. A

moment later he retracted his statement that he had been inside the residence.

14



The police then asked defendant why he had told one of them the day

before that he had never thought of sodomizing little girls. Defendant said, “I

don’t know, just some[thing] of mine that came out . . . I don’t know, why, was

April sodomized?” The police then asked him how he knew April had been

strangled because no one had that information. Defendant then said, “how did I

know, well, I did it? Alright, I did it. Come on, I’m saying that I did it . . . You

know what, I didn’t do it. I’m not saying I did it. I’m not saying nothing.”

Defendant repeatedly denied he had killed April. He also retracted his statement

that he had seen her in the bathtub and denied that he had taken the drawings she

had made for him from the Holley residence the night she was killed. Defendant

then began to request a lawyer, the interview was terminated, and he was arrested

for April’s murder.

c. Physical

Evidence

DNA in semen found on a rectal slide taken from April was found to

match Steven Brown’s DNA. Various hair samples were collected from the crime

scene. Two separate experts in hair analysis, Steven O’Clair and Charles Morton,

analyzed the samples for the prosecution. O’Clair testified that three pubic hairs

found in the bathtub were consistent with samples of defendant’s hairs. Morton

agreed that two of the three pubic hairs were consistent with defendant’s hair as

was a third pubic hair found on April’s sweatshirt.

d. Postarrest

Evidence

On Christmas Day, 1988, David Jurkovich, an inmate at Tulare County jail

approached defendant and told him that “if you did that to that little girl,” then

“you have no God because no God will have you.” Defendant replied, “she wasn’t

the first and she won’t be the last, motherf—ker.”

15



Evidence was also presented that in May, 1990, Steven Brown entered the

home of 74-year-old Margaret Allen while she was asleep and sexually assaulted

and attempted to drown her. She survived.

5. Defendant’s Guilt Phase Evidence

The defense consisted of impeaching the statements of prosecution

witnesses as to the details of their testimony and their credibility. Additionally,

defendant presented evidence to support the defense theory that Steven Brown

acted alone in sexually assaulting and killing April Holley, although possibly in

the presence of Bobby Joe Marshall, Jr. For example, the defense presented

several witnesses who testified that Marshall and Brown were together the night

that April was killed. The defense also sought to establish that April was not

killed around 9:30 p.m. on Saturday night, as the prosecution claimed, but in the

early morning hours of Sunday, December 4. The defense also presented evidence

that there were numerous people inside and outside of the Holley residence on

Sunday morning who might have speculated or gossiped about the circumstances

of April’s death, to counter prosecution evidence that no details were released to

the public. The defense also produced testimony to support its claim that Donald

and Brian Pounds had planned to come to Tulare two or three days before

December 4, to counter prosecution evidence that they had come that day

specifically to take defendant with them. The defense also presented its own hair

analysis expert, Stephan Schliebe who disputed testimony from the prosecution

experts that pubic hairs removed from the bathtub and April’s sweater were

consistent with defendant’s hair. A second defense expert, Peter Barnett, also

testified to this effect.

16



B. Penalty Phase Evidence

1. Prosecution

Evidence

Gina I. testified that in 1982, when she was 16 years old, defendant, along

with Donald Pounds, Jr., and Brian Pounds, raped her at a party at Donald

Pounds’s residence. She testified that, after Donald Pounds raped her, defendant

came into the room and said “those guys told me that you said I was a faggot, and

I’m gonna prove to you I’m not.” He struck her and as he raped her he said, “f—k

you, c—t, I hate all you women,” and “you’re a bitch, you all get what you

deserve, and I’m not a faggot.” Defendant pled guilty to forcible rape in 1982.

Michael M. testified that, while he and defendant were in prison, defendant,

after learning M. had been convicted of rape, forced M. to orally copulate him and

then subsequently sexually assaulted him 10 to 20 times. Defendant, whom M.

described as the “head white representative of the barracks,” also made M.

perform sexual acts on other inmates.

Julia Parnell, who dated defendant in 1984, and her son Chris O., testified

that defendant once squeezed the genitals of Parnell’s other son, Richard, when he

was an infant because he was crying. Defendant squeezed him with such force

that he required hospitalization. Michael Montejano, the police officer who

investigated defendant’s abuse of the infant, testified that defendant denied having

injured the infant because he “loved Richard as if he was his own, and he would

not abuse him, that he was not a child abuser.” Defendant also told Montejano

that “the person who [was] responsible would be sorry if he ever found out who

did this.”

2. Defendant’s Penalty Phase Evidence

Defendant’s penalty phase evidence focused on his family history. Various

family members, including two brothers, a sister, his mother, and maternal

grandmother testified that defendant was raised in an atmosphere of neglect and

17



violence. Defendant did not live with both his parents until he was eight years old.

Until then he was sometimes raised by his maternal grandparents and sometimes

by his mother alone in Arkansas. At one point, defendant and his siblings were

removed from his mother’s custody because of her failure to provide proper care

for them. In 1971, when defendant was eight, his mother moved with her children

to California to rejoin defendant’s father. Defendant’s father was an alcoholic and

he and defendant’s mother sometimes got into physical fights. Defendant tried to

get between his parents when they fought, but he was pushed back or hit. When

defendant’s father was sober he was hard on defendant. Defendant was described

as a “bullheaded and stubborn” child who needed considerable attention and

discipline, which he did not receive from his mother. Almost the only people able

to control defendant were his maternal grandparents. However, even they were

unable to handle defendant after he started using drugs.

Dr. Yosef Gershuri, a psychologist, interviewed defendant over a three- or

four-hour period to assess his mental status. He testified defendant had an IQ of

73 and suffered from attention deficit disorder as well as having borderline

intellectual function and associated personality disorders. Dr. Gershuri explained

that attention deficit disorder is “a disorder of attention, disordered impulsivity,

and a disorder of hyperactivity, being very . . . overly active.” He also explained

that individuals suffering from this disorder “eventually develop very aggressive

behaviors towards others.” Dr. Gershuri testified that a child with this disorder

would have difficulties in school and, as a result, experience derogatory

assessments of his performance that would contribute to low self-esteem. In the

family, such a child might be punished, but punishment would do little except to

make the child more upset.

Gary Yates, a licensed marriage, family, and child counselor, reviewed

interviews of defendant’s family members and information about defendant’s

18



childhood, including probation reports, school records, and medical records.

Based on that review, Yates testified that there were “severe family dysfunctions”

in defendant’s family, including his father’s alcoholism, a pattern of spousal

abuse, and physical neglect of defendant and his siblings. Yates testified that a

father’s alcoholism was the “highest predictor” for alcoholism in male children as

well as other “poor outcomes.” Yates testified that defendant’s exposure to his

father’s physical assaults on his mother, in addition to creating “school problems,

truancy, [and] low self-esteem” might also correlate to the use of violence by

defendant against women. Yates testified further that defendant evidenced

attention deficit disorder that was undiagnosed and untreated. Children suffering

with this disorder often become substance abusers in an attempt to self-medicate.

Yates also testified that defendant showed signs of self-destructive behavior.

Yates concluded that defendant’s adult behavior was predictable given his

dysfunctional family and the unavailability of any help for him with his various

problems when he was a child.

II. ANALYSIS

A. Jury Selection and Pretrial Issues

1. Prosecutor’s Use of Peremptory Challenges to Excuse Death

Penalty Skeptics

Defendant contends that the prosecutor improperly used his peremptory

challenges to excuse any prospective juror who expressed reservations about the

death penalty and, in a related argument, that the prosecutor improperly excused

prospective jurors based on their religious affiliation.

As a preliminary matter, defendant asserts that his “jurors were so death-

primed that they could not act as the conscience of the community.” Defendant

does not, however, contend that the trial court erred by denying a defense

challenge for cause against any of these jurors based on their views about the

19



death penalty. (See Wainwright v. Witt (1985) 469 U.S. 412, 424 [prospective

juror may be excused for cause if his or her views on the death penalty would

“ ‘prevent or substantially impair the performance of his duties as a juror in

accordance with his instructions and his oath’ ”]; People v. Ghent (1987) 43

Cal.3d 739, 767 [adopting Witt standard].) Moreover, defense counsel accepted

the panel about which defendant now complains even though the defense had not

exhausted its peremptory challenges. (People v. Cox (1991) 53 Cal.3d 618, 648,

fn. 4 [“defense acceptance of jury without exhausting peremptory challenges is

‘strong indicator[] that the jurors were fair, and that the defense itself so

concluded”], quoting People v. Balderas (1985) 41 Cal.3d 144, 180.) Under these

circumstances, we agree with the Attorney General that defendant’s retrospective

characterization of his jury as “death-primed” does not, in and of itself, raise a

cognizable issue on appeal.

Defendant next argues that the prosecutor’s use of peremptory challenges to

excuse any prospective juror who expressed any reservation about the death

penalty violated his constitutional right to a representative jury. As defendant

concedes, we have repeatedly rejected this argument. “[W]e see no . . .

constitutional infirmity in permitting peremptory challenges by both sides on the

basis of specific juror attitudes on the death penalty. While a statute requiring

exclusion of all jurors with any feeling against the death penalty produces a jury

biased in favor of death [citation], we have no proof that a similar bias arises, on

either guilt or penalty issues, when both parties are allowed to exercise their equal,

limited numbers of peremptory challenges . . . against jurors harboring specific

attitudes they reasonably believe unfavorable.” (People v. Turner (1984) 37

Cal.3d 302, 315; see People v. Brown (2004) 33 Cal.4th 382, 403 [“The

prosecution’s use of peremptory challenges to remove prospective jurors who

express scruples about imposing the death penalty does not violate any

20



constitutional guarantee”].) We are unpersuaded by defendant’s arguments that

invite us to reconsider our analysis of this claim.

Defendant then contends that, in his effort to remove any prospective juror

with reservations about the death penalty, the prosecutor systematically excluded

prospective jurors based on their religious affiliation in violation of People v.

Wheeler (1978) 22 Cal.3d 259 (Wheeler). Counsel failed to make a Wheeler

motion at trial. This omission forfeits the issue on appeal. (People v. Bolin (1998)

18 Cal.4th 297, 316.)11 Even if the claim was not forfeited, we would reject it on

its merits.

“We have previously stated that religious membership constitutes an

identifiable group under Wheeler.” (In re Freeman (2006) 38 Cal.4th 630, 643.)

“ ‘Such a practice [religious-based excusals] also violates the defendant’s right to

equal protection under the Fourteenth Amendment to the United States

Constitution.’ ” (People v. Bell (2007) 40 Cal.4th 582, 596.) Here, however, the

jurors were not excused based on their denominational affiliations because none of


11 Defendant urges us not to apply any procedural bars to any of his claims but,
rather, to review them on their merits because of the finality of the death penalty.
We have recognized exceptions to the forfeiture doctrine with respect to certain
constitutional claims raised for the first time on appeal. (See People v. Boyer
(2006) 38 Cal.4th 412, 441, fn. 1 (Boyer); People v. Partida (2005) 37 Cal.4th
428, 433-439.) But we have never held that forfeiture is inapplicable to an entire
class of cases and we will not do so here. Therefore we will entertain
constitutional claims not raised below only to the extent “the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court’s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence
of violating the Constitution. . . . [¶] In [this] instance, of course,
rejection, on the merits, of a claim that the trial court erred on the issue actually
before that court necessarily leads to rejection of the newly applied constitutional
‘gloss’ as well. No separate constitutional discussion is required in such cases,
and we therefore provide none.” (Boyer, supra, 38 Cal.4th at p. 441, fn. 17.)

21



them said such affiliation would prevent them from imposing the death penalty.

Thus, there is no basis in the record to conclude that they were excused because of

their membership in a particular religious group. To the extent defendant is

arguing it was improper to excuse them because any reluctance on their part to

impose the death penalty was based on their religious belief — although there is

nothing in the record to indicate this was the case — he is wrong.

Prospective Juror P.B. specifically told the court that she had no religious

beliefs that would interfere with her ability to reach a judgment. In response to

defense questioning, she reaffirmed the observation she made in her juror

questionnaire that there are biblical accounts of imposing the death penalty and, in

response to her feelings about the death penalty, stated, “I think it’s based on an

individual basis, and I don’t think that currently I could say one way or the other

how a decision should be made at this point.”

Prospective Juror R.J., an Episcopal priest, while stating that he preferred

not to sit on a death penalty case, said he could vote for the death penalty if he

believed it was warranted, although this would be “extremely difficult.” Nowhere,

however, did he state that his membership in the Episcopalian church would

prevent him from imposing the death penalty. Indeed, in response to a prosecution

question, he said that even if his church was opposed to the death penalty, that

position “really wouldn’t affect me” because of the structure of the church.

Moreover, his greatest concern was that the unexpected departure of his assistant

had left him short-handed.

Prospective Juror J.C., identified himself as a Catholic but said,

notwithstanding his church’s opposition to the death penalty, he could impose the

death penalty “[i]f that is the law.” Prospective Juror W.D. noted on his juror

questionnaire that his religious organization did not consider the death penalty a

solution, but also stated he did not feel an obligation to accept that view. W.D.

22



stated that, notwithstanding his church’s position on the death penalty, he could

vote for the death penalty in the appropriate case.

Clearly, none of these prospective jurors took the position that their

religious affiliations would prevent them from imposing the death penalty. Thus,

we are not persuaded by defendant’s claim that their religious affiliations were the

basis of the peremptory challenges. And even if their ambivalence toward the

death penalty had some basis in their religious views, “[e]xcusing prospective

jurors who have a religious bent or bias that would make it difficult for them to

impose the death penalty is a proper, nondiscriminatory ground for a peremptory

challenge.” (People v. Cash (2002) 28 Cal.4th 703, 725.)

2. Excusal

of

Prospective Jurors for Cause

Defendant contends that the trial court’s excusal for cause of eight

prospective jurors who stated unequivocally they could not impose the death

penalty violated his right to a representative jury because the court’s questioning

was inadequate. Alternatively, he contends that the elimination of any prospective

juror who would not impose the death penalty denied him an impartial jury drawn

from a fair cross-section of the community.

“A prospective juror may be challenged for cause based upon his or her

views regarding capital punishment only if those views would ‘ “prevent or

substantially impair” ’ the performance of the juror’s duties as defined by the

court’s instructions and the juror’s oath. [Citations.] ‘ “ ‘A prospective juror is

properly excluded if he or she is unable to conscientiously consider all of the

sentencing alternatives, including the death penalty where appropriate.’

[Citation.]” [Citation.] In addition, “ ‘[o]n appeal, we will uphold the trial court’s

ruling if it is fairly supported by the record, accepting as binding the trial court’s

determination as to the prospective juror’s true state of mind when the prospective

23



juror has made statements that are conflicting or ambiguous.’ [Citations.]” ’

[Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 975.)

Six of the eight prospective jurors to whom defendant refers stated on their

juror questionnaires that they would always vote against death while a seventh,

I.R., stated that he was compelled to follow his church’s teaching “not to kill

another human being.” In response to questioning by the court, each of these

jurors confirmed that they would not impose the death penalty under any

circumstance. The eighth juror, E.I., gave equivocal answers on her questionnaire

about whether she could impose the death penalty but, during extensive

questioning by the court, indicated that stress caused her stomach problems that

made her “have to go to the restroom a lot.” She indicated further that,

notwithstanding her belief in the death penalty, she didn’t “know if [she] could

condemn somebody to death,” and “I don’t know if I could live with myself if I

did that.” In further colloquy, she told the court she believed she was “too

emotional” to make the decision whether to impose death and being faced with the

decision would aggravate her “nervous stomach.” The court excused her on the

grounds that her “opinions and feelings would substantially impair her ability to be

fair in this case.”

Although defendant criticizes the adequacy of the court’s questioning, he

does not point to specific deficiencies. On this record, we conclude that the trial

court’s questioning was adequate and that it properly excused these prospective

jurors for cause. Thus, this case is quite different from the cases on which

defendant relies, in which one trial court improperly excused five jurors based

solely on their juror questionnaire answers (People v. Stewart (2004) 33 Cal.4th

425, 445), and another court improperly excused a prospective juror even after the

prospective juror indicated he would not automatically vote for life without

24



possibility of parole, rather than impose death, no matter what the evidence

showed (People v. Heard (2003) 31 Cal.4th 946, 963-966).

We have repeatedly rejected defendant’s alternative claim, concluding that

“[t]he exclusion of those categorically opposed to the death penalty at the guilt

phase of the trial does not offend either the United States Constitution [citation] or

the California Constitution [citation]. As the United States Supreme Court

explained, death penalty opponents, ‘or for that matter any other group defined

solely in terms of shared attitudes that render members of the group unable to

serve as jurors in a particular case, may be excluded from jury service without

contravening any of the basic objectives of the fair-cross-section requirement.’

[Citations.] It is also well settled that this exclusion does not violate defendant’s

right to an impartial jury.” (People v. Jackson (1996) 13 Cal.4th 1164, 1198,

quoting Lockhart v. McCree (1986) 476 U.S. 162, 176-177; see People v. Lenart

(2004) 32 Cal.4th 1107, 1120; People v. Steele (2002) 27 Cal.4th 1230, 1243;

People v. Catlin (2001) 26 Cal.4th 81, 112.) As in those cases, “[d]efendant here

has likewise failed to make a compelling case for us to revisit this issue.” (People

v. Lenart, supra, 32 Cal.4th at p. 1120.)

3. Denial of Defense Challenge for Cause

Defendant contends that the trial court erroneously refused to excuse for

cause Prospective Juror E.M. who he claims gave answers on her jury

questionnaire, and in response to the court’s examination, that revealed she would

automatically vote for the death penalty. Following the court’s refusal to excuse

E.M., defendant used a peremptory challenge to excuse her. Defendant did not,

however, exhaust his peremptory challenges.

Defendant’s claim fails for the simple reason that, even assuming E.M. was

biased, she did not serve on the jury and therefore “could [not] possibly have

25



affected the jury’s fairness . . . .” (People v. Yeoman (2003) 31 Cal.4th 93, 114.)

As we further explained in Yeoman, “[a]n erroneous ruling that forces a defendant

to use a peremptory challenge, and thus leaves him unable to exclude a juror who

actually sits on his case, provides grounds for reversal only if the defendant ‘can

actually show that his right to an impartial jury was affected . . . .’ [Citation.] In

other words, the loss of a peremptory challenge in this manner ‘ “provides grounds

for reversal only if the defendant exhausts all peremptory challenges and an

incompetent juror is forced upon him.” ’ [Citations.]” (Ibid.) Here, where

defendant did not exhaust all his peremptory challenges, he cannot even begin to

demonstrate that his right to an impartial jury was impaired by the trial court’s

refusal to excuse E.M. for cause, even assuming this was error. Defendant spills

considerable ink urging that we not apply this principle to his claim but his

arguments are not persuasive.

4. Suppression of Defendant’s Postarrest Statement to Police

a. Illegality of Defendant’s Arrest

Defendant contends that his arrest was illegal because the affidavit

submitted in support of the arrest warrant designated the wrong subdivision of

section 290 as the offense for which his arrest was sought. He argues therefore that

his postarrest statement should have been suppressed. We disagree.

Because of his 1982 conviction for forcible rape, defendant was required to

register as a sex offender under section 290. The police report, incorporated by

reference into the affidavit seeking an arrest warrant, cited both section “290(a)

PC” and “fail[ure] to comply with 290 PC.” The body of the report stated that the

investigating officer, Deputy Pinon, had ascertained from the Tulare Police

Department that defendant had registered with that agency on November 24, 1986,

at an address on West Merrit in the City of Tulare. As of September 1988,

26



however, he had moved and was living on Canal Street in an unincorporated area

of Tulare county. Pinon sought the warrant based on defendant’s failure to

register with the sheriff’s department upon taking up residence in the county.

Section 290, subdivision (a), as it existed in 1988, set forth the general

requirement that individuals required to register as sex offenders shall “within 14

days of coming into any county or city . . . in which he or she temporarily resides

or is domiciled for that length of time register with the chief of police of the city in

which he or she is domiciled or the sheriff of the county if he or she is domiciled

in an unincorporated area.” (Stats. 1987, ch. 1418, § 3.1, pp. 5225-5228.) Section

290, subdivision (f) provided that if a person required to register changed his or

her address “the person shall inform, in writing within 10 days, the law

enforcement agency with whom he or she last registered of the new address.”

Defendant argues that, in essence, he had no obligation to register with the

sheriff’s department upon moving to Canal Street, under subdivision (a), and that

the only former section 290 offense he could have been arrested for in 1988 was

under subdivision (f), based on his failure to notify the Tulare Police Department

of his change of address. He reasons that because Pinon’s report did not establish

probable cause to support his commission of that offense, the affidavit was fatally

defective and the resulting arrest warrant invalid.12

“Probable cause to issue an arrest or search warrant must . . . be based on

information contained in an affidavit providing a substantial basis from which the

12 The current version of section 290, subdivision (a) makes it clear that those
subject to the registration requirement must, upon changing their address, register
with the law enforcement agency having jurisdiction over the area to which they
have removed themselves and also notify the law enforcement agency with whom
they had been registered of their new address. (§ 290, subds. (a)(1)(A), (f)(1);
People v. Musovich (2006) 138 Cal.App.4th 983, 988.)

27



magistrate can reasonably conclude there is a fair probability that a person has

committed a crime or a place contains contraband or evidence of a crime.” (Bailey

v. Superior Court (1992) 11 Cal.App.4th 1107, 1111.) As to the sufficiency of the

affidavits, such “affidavits ‘are normally drafted by nonlawyers in the midst and

haste of a criminal investigation. Technical requirements of elaborate specificity

once exacted under common law pleadings have no proper place in this area.’

[Citation.]” (Illinois v. Gates (1982) 462 U.S. 213, 235.) “Recital of some of the

underlying circumstances in the affidavit is essential if the magistrate is to perform

his detached function and not serve merely as a rubber stamp for the police.

However, where these circumstances are detailed . . . and when a magistrate has

found probable cause, the courts should not invalidate the warrant by interpreting

the affidavit in a hypertechnical, rather than a commonsense manner. . . .[T]he

resolution of doubtful or marginal cases in this area should be largely determined

by the preference to be accorded to warrants.” (United States v. Ventresca (1965)
380 U.S. 102, 109.) Furthermore, “[i]n cases where an officer had in mind facts

which justified an arrest, and made an arrest upon those facts, the arrests have

been held lawful despite the officer’s having cited some other closely related

offense at the time of arrest or in testifying.” (People v. Howell (1973) 30

Cal.App.3d 228, 235.)

Applying these principles, we reject defendant’s claim for the following

reasons. First, defendant provides no authority — nor has our research revealed

any — to support his claim that a registrant who moved from one jurisdiction into

another was not required to both report his change of address with the law

enforcement agency in the old jurisdiction and to register with law enforcement in

the new jurisdiction, even under section 290 as it existed in 1988. Nor is such a

construction of the statute plausible because it would have left law enforcement in

the new jurisdiction unaware that a sex offender had moved into the community.

28



This would have been fundamentally inconsistent with the longstanding purpose

of section 290 “ ‘ “ ‘to assure that persons convicted of the crimes enumerated

therein shall be readily available for police surveillance at all times because the

Legislature deemed them likely to commit similar offenses in the future.’ ” ’ ”

(People v. Hofsheier (2006) 37 Cal.4th 1185, 1196.) Thus, it is not at all clear that

the affidavit did not correctly describe a violation of section 290, subdivision (a).

Second, it is also not clear that the affidavit did not adequately describe a

violation of section 290, subdivision (f). The police report filed in connection

with the affidavit related (1) that the affiant officer had “checked with the Tulare

P[olice] D[epartment] and found that [defendant] had registered with Tulare Police

Dept. [on] November 24, 1986” at “1781 W. Merrit, Tulare,” and (2) that, as of

September 1988, defendant was living with the Marshall family on Canal Street in

an unincorporated area of Tulare County. A teletype attached to the affidavit also

confirmed that defendant had registered with the Tulare Police Department in

1986, but did not show that he had registered his change of address with any law

enforcement agency. It can be inferred from these facts that defendant had failed

to notify the Tulare Police Department of his change of address in 1988, thus

violating section 290, subdivision (f).

Third, even assuming that the affiant officer designated the wrong

subdivision of section 290, there is no question that interpreting the affidavit in a

commonsense manner, as opposed to defendant’s hypertechnical reading, supports

the magistrate’s finding that there was probable cause to believe defendant had

violated some provision of section 290. The misdesignation may have provided

defendant a defense at trial (cf. People v. McCleod (1997) 55 Cal.App.4th 1205,

1209, fn. 1), but it does not obviate probable cause for the purpose of the issuance

of the arrest warrant.

29



b. Delay in Defendant’s Arraignment on the Misdemeanor

Charge

Defendant also contends that his postarrest statement should have been

suppressed because the police violated section 825 by unnecessarily delaying his

arraignment on the misdemeanor section 290 charge. We reject his claim.

At the time of defendant’s arrest, section 825, as relevant, provided: “The

defendant must in all cases be taken before the magistrate without unnecessary

delay, and, in any event, within two days after his arrest, excluding Sundays and

holidays . . . .” (As amended by Stats. 1961, ch. 2209, § 1, p. 4554.) “Of course,

section 825 does not ‘authorize a two-day detention in all cases. Instead, “a limit

[is placed] upon what may be considered a necessary delay, and a detention of less

than two days, if unreasonable under the circumstances, is in violation of the

statute” and of the Constitution.’ ” (People v. Turner (1994) 8 Cal.4th 137, 175.)

Nonetheless, “[t]o justify exclusion of a statement, defendant must show that the

delay produced his admissions or that there was an essential connection between

the illegal detention and admissions of guilt.” (Id. at p. 176; People v. Sapp

(2003) 31 Cal.4th 240, 270 [“delay in arraignment would justify suppressing a

confession only upon a defendant’s showing that the confession was the product

of an illegal detention”].)

Here, the evidence produced at defendant’s motion to suppress his

statement demonstrated that he was arraigned within two days of his arrest and,

further, at his own request was not arraigned the day after his arrest. Defendant

was arrested on the misdemeanor section 290 charge about 11:40 p.m. on Sunday,

December 11, 1988, and arraigned on that charge in the early afternoon of

Tuesday, December 13, 1988. The reason he was not arraigned on Monday,

December 12, was because he wanted to rest in order to take a second polygraph

30



examination regarding his involvement in the Holley murder after the first proved

inconclusive because he was fatigued.

On this record it is clear that defendant was arraigned on the misdemeanor

charge within the two-day outer limit set forth in section 825 and that the failure to

have arraigned him on the day after his arrest did not constitute unnecessary delay

because it was at his request. (See People v. Thompson (1980) 27 Cal.3d 303,

328, 330 [where defendant was arrested on Sunday night and not arraigned until

Tuesday, and the purpose for the delay was to allow defendant and arresting

officer to sleep, “even if section 825 were violated, that would not render

[defendant’s] confession inadmissible”].)13 Thus, this case is distinguishable from

People v. Jenkins (2004) 122 Cal.App.4th 1160, cited by defendant, because in

Jenkins the delay in arraignment on a misdemeanor arrest was “used solely to

question defendant” about the offenses for which he was ultimately convicted, first

degree murder and attempted murder. (Id. at pp. 1175-1176.) Moreover, “even if

a confession occurs during a period of illegal detention under section 825, that fact

does not render it inadmissible. A delay in arraignment is treated ‘as only one of

the factors to be considered in determining whether the statement was voluntarily

made.’ ” (People v. Thompson, supra, 27 Cal.3d at p. 329.) Other than the bare

fact that defendant made the challenged statement before he was arraigned,

defendant points us to nothing in the record that demonstrates a connection

between the claimed illegal delay and the statement that would justify suppression.

13 Thus, because any delay was not for purposes of eliciting incriminating
statements, there was no federal constitutional violation. (County of Riverside v.
McLaughlin
(1991) 500 U.S. 44, 56 [delay of less than presumptively prompt 48
hours may violate Fourth Amend. if delay was for improper purpose].)

31



c. Voluntariness

Lastly, defendant contends his postarrest statement should have been

excluded because it was involuntary. Defendant deploys a number of arguments

in support of this claim, among them that his statement was the result of police

deception, that the questioning was overly aggressive, that his low IQ made him

particularly vulnerable to the questioning, and a suggestion that his statement was

obtained in violation of Miranda. Based on our review of defendant’s statement,

we conclude that neither singularly nor collectively are these claims persuasive.

After defendant was interviewed in San Leandro on December 10, he

voluntarily agreed to return to Tulare County the following day. When he arrived,

on Sunday, December 11, he was arrested on the misdemeanor arrest warrant and

became angry until it was explained to him that he was not being arrested for the

Holley murder. Defendant requested a polygraph examination that evening. He

was readvised of his rights, waived them and the polygraph examination was

administered. The results of the first examination were inconclusive and

defendant requested a second one. He also wanted to rest before it was

administered, so he was placed in an area of the jail where “he could get plenty of

sleep and not be bothered.” The second polygraph was administered in the early

afternoon. He was then interrogated that afternoon in the office of the violent

crimes unit beginning about 3:55 p.m. He was again advised of and waived his

rights, before the interrogation. The interrogation lasted about an hour and 40

minutes. During the course of the interview, as defendant shifted and changed his

story, he became agitated, “put[ting] his forehead down on the desk and . . .

whining and moaning,” “jump[ing] up, and . . . rant[ing] and rav[ing.]” At the end

of the questioning he “suddenly jumped up,” and tried to kick Lieutenant Harris.

Defendant, however, was restrained by leg irons and a “belly chain.” During the

course of the interrogation, the police gave him false information, telling him, for

32



example, that witnesses had seen him leaving the Holley residence the night of the

murder and that his semen had been found in the victim. When defendant

requested a lawyer, the interrogation was ended.

“A statement is involuntary when ‘among other circumstances, it “was

‘ “extracted by any sort of threats . . . , [or] obtained by any direct or implied

promises, however slight . . . .” ’ ” [Citations.] Voluntariness does not turn on

any one fact, no matter how apparently significant, but rather on the “totality of

[the] circumstances.’ ” (People v. Neal (2003) 31 Cal.4th 63, 79.) . . . [¶] ‘In

reviewing the trial court’s determinations of voluntariness, we apply an

independent standard of review, doing so “in light of the record in its entirety,

including ‘all the surrounding circumstances — both the characteristics of the

accused and the details of the [encounter].’ ” ’ (People v. Neal, supra, 31 Cal.4th

at p. 80.) But ‘ “we accept the trial court’s factual findings, based on its resolution

of factual disputes, its choices among conflicting inferences, and its evaluations of

witness credibility, provided that these findings are supported by substantial

evidence.” [Citation.]’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 813-814.)

Applying these principles, we reject defendant’s argument that police

deception rendered his statement involuntary. “ ‘Lies told by the police to a

suspect under questioning can affect the voluntariness of an ensuing confession,

but they are not per se sufficient to make it involuntary.’ ” (People v. Farnam

(2002) 28 Cal.4th 107, 182.) Here, the police deceived defendant only about

having been seen by two witnesses leaving the Holley residence — which

ultimately led him to admit he was in the residence, a statement he then retracted

— and that his semen was found in the victim — a statement he vehemently

denied. Viewing these statements under the totality of the circumstances test, we

cannot say they rendered defendant’s statement involuntary.

33



Defendant also claims that, as the interrogation progressed, the questioning

became increasingly aggressive, leading him to become confused and hysterical.

Our review of the transcript, however, indicates not that the police engaged in

overly aggressive behavior but, rather, that defendant became increasingly agitated

as he was caught in one lie after another. Defendant also asserts that his low IQ —

he later tested at 73 — made him especially vulnerable in the interrogation

setting. The police, however, had no reason to know that defendant had a low IQ,

nor do his responses during the interrogation indicate mental defect. (Compare

People v. Neal, supra, 31 Cal.4th at p. 84 [“And defendant’s intelligence, as the

record reveals from beginning to end, was quite low” (italics added)].) Finally,

contrary to defendant’s suggestion, his statement was not obtained in violation of

his Miranda rights. Rather, the interrogation was terminated shortly after

defendant requested a lawyer.

Indeed, as his invocation of his right to counsel demonstrates, and contrary

to his characterization of himself as a helpless, easily confused naïf, defendant, a

convicted felon, was wise in the ways of the criminal justice system, unlike the

defendant in Neal to whom he compares himself. (People v. Neal, supra, 31

Cal.3d at p. 84 [noting that the 18-year-old defendant had little knowledge of the

criminal justice system, minimal education, low intelligence, and was kept

isolated, hungry, and incommunicado].) Accordingly, the totality of the

circumstances attending defendant’s statement do not support his claim that it was

the involuntary product of police coercion.

5. Public Defender Conflict

Defendant contends that the trial court violated his rights to due process and

to counsel when it relieved the public defenders who had represented him for 14

months because their office had represented a potential prosecution witness,

34



notwithstanding defendant’s willingness to waive any conflict of interest. Because

his public defenders took the position that they would be unable to cross-examine

their former client should he testify, defendant alternatively maintains the trial

court should have preemptively excluded the testimony rather than relieve his

counsel.

On February 9, 1990, the public defenders representing defendant, Mssrs.

Pereira and Cherney, informed the court of a potential conflict of interest they had

discovered in reviewing the prosecution’s witness list. Included on the list was

Lester Smith, whom the public defender’s office had represented in two felony

cases from November 1988 through September 1989. Smith had been sentenced

to 21 years in state prison; the public defender had unsuccessfully sought to have

Smith housed out of state. The prosecution had agreed to allow Smith to be

housed out of state if he testified truthfully against defendant that defendant told

him he had raped and killed April Holley while Smith and defendant were housed

in the Tulare County jail. Defendant had made a similar admission to another

inmate, Tony Enos, before he talked to Smith. Smith had spoken to Enos.

Mr. Pereira, who had been personally involved in some aspects of his

office’s representation of Smith, explained to the court that based on these

contacts with Smith, “I could not properly, adequately or effectively cross-

examine Smith in [defendant’s] case.” When pressed by the court to elaborate,

Pereira said that, should he cross-examine Smith, Smith might be able to invoke

attorney-client privilege to not answer certain questions, or that he might blurt out

that the public defender had previously represented him, which would “discredit

myself and Mr. Cherney” before the jury. He also explained that attacking

Smith’s credibility might result in Smith not getting the benefit of his agreement

with the prosecutor to be housed in an out-of-state prison and he could not do

anything that would injure a former client.

35



The prosecutor stated that “[i]t’s our intention to call Lester Smith. It’s not

to say we’re going to call him, because you never know what’s going to happen at

trial. We certainly wouldn’t want to be put in a position now of being precluded

from calling Mr. Smith.” The court and counsel explored various avenues around

the conflict, including appointing a third attorney for defendant for the limited

purpose of cross-examining Smith — to which the defense objected — or

videotaping Smith’s testimony, or requiring the prosecution to call him as one of

its first five witnesses — to which the prosecution objected. The court and

counsel also discussed appointing independent counsel to advise defendant about

his right to conflict-free counsel should defendant insist on being represented by

the public defender.

Although the prosecutor stated that he was not requesting recusal of the

public defender’s office, he was concerned that permitting defendant to waive the

conflict would result in a mistrial or potential reversible error. The court found

this position to be unsatisfying. “[Y]ou can’t have it both ways, Mr. Ferguson.

You either have to tell me that you want me to recuse the Public Defender’s Office

because we can’t get a knowing, intelligent, voluntar[y] waiver, or you want to see

if we can get a knowing, intelligent and volunt[a]ry and understanding waiver.”

The prosecutor replied: “Our position is that they have to conflict out.”

At the end of the colloquy, Mr. Pereira asked to be relieved, saying, “I

cannot and no Public Defender will cross-examine Lester Smith in this case.”

Nonetheless, he informed the court that defendant was prepared to waive his right

to a conflict-free attorney in order to keep Pereira and Cherney as his lawyers.

However, he then suggested another solution — exclusion of Smith’s testimony

under Evidence Code section 352. The prosecution objected and the matter was

continued.

36



Subsequently, the defense filed a written motion to exclude Smith’s

testimony as cumulative and more prejudicial than probative in view of its impact

on the ability of the public defender to continue to represent defendant. The

prosecution opposed the motion, arguing that recourse to Evidence Code section

352 to solve a conflict of interest problem was inappropriate and that Smith’s

testimony was not cumulative but corroborative in a case based on circumstantial

evidence. The trial court denied the motion and relieved defendant’s counsel. The

prosecution did not call Lester Smith to the stand.

Defendant contends the trial court’s ruling — denying this Evidence Code

section 352 motion and relieving counsel — violated both the federal and state

Constitutions. We disagree.

A trial court may remove defense counsel, even over defendant’s

objections, “in order to eliminate potential conflicts, ensure adequate

representation, or prevent substantial impairment of court proceedings . . . .”

(People v. McKenzie (1983) 34 Cal.3d 616, 629.) On appeal, the trial court’s

removal of counsel is reviewed for abuse of discretion. “ ‘A court abuses its

discretion when it acts unreasonably under the circumstances of the particular

case.’ ” (People v. Panah (2005) 35 Cal.4th 395, 426.) “Inherent in the question

whether a trial court may disqualify a criminal defense attorney over the

defendant’s objection is the conflict between the defendant’s preference to be

represented by that attorney and the court’s interest in ‘ensuring that criminal trials

are conducted within the ethical standards of the profession and that legal

proceedings appear fair to all who observe them. ’ ” (People v. Jones (2004) 33

Cal.4th 234, 240, quoting Wheat v. United States (1988) 486 U.S. 153, 160

(Wheat).)

Jones is instructive. There, the trial court disqualified defense counsel

because his office had represented an individual whom the defense viewed as a

37



possible third party culprit in the defendant’s case, even though defense counsel

had represented the defendant for two years and the defendant offered to waive the

conflict. In the end, the defense did not put on evidence relating to the former

client of the disqualified attorney. As here, the defendant argued on appeal that

removal of counsel violated his rights under both the federal and state

Constitutions.

In discussing the defendant’s Sixth Amendment claim, we pointed out that

“a trial court’s decision whether to allow a defendant to waive a conflict of interest

cannot be made after trial, but instead occurs ‘in the murkier pretrial context when

relationships between parties are seen through a glass, darkly.’ (Wheat, supra, 486

U.S. at p. 162.) The [Wheat] court went on to say that ‘[t]he likelihood and

dimensions of nascent conflicts of interest are notoriously hard to predict’ and are

‘even more difficult to convey by way of explanation to a criminal defendant

untutored in the niceties of legal ethics.’ ” (People v. Jones, supra, 33 Cal.4th at

p. 241.) Thus, given the potential conflict arising between defense counsel’s

representation of the defendant and counsel’s prior representation of a potential

alternative suspect, and in light of the “ ‘substantial latitude’ ” given to trial courts

to eliminate potential conflicts under the Wheat decision, the “discharge did not

violate defendant’s right to counsel under the federal Constitution.” (Id. at

p. 242.)

Turning to the defendant’s state constitutional claim, we observed: “The

California Constitution gives a criminal defendant the right to an attorney who

must competently represent the defendant. But, as we have often pointed out, the

state Constitution does not give an indigent defendant the right to select a court-

appointed attorney. . . . [¶] The removal of an indigent defendant’s appointed

counsel . . . poses a greater potential threat to the defendant’s constitutional right

to counsel than does the refusal to appoint an attorney requested by the defendant,

38



because the removal interferes with an attorney-client relationship that has already

been established. But when, as here, a trial court removes a defense attorney

because of a potential conflict of interest, the court is seeking to protect the

defendant’s right to competent counsel. In such circumstances, there is no

violation of the right to counsel guaranteed by article I, section 15 of the state

Constitution, notwithstanding the defendant’s willingness to waive the potential

conflict.” (People v. Jones, supra, 33 Cal.4th at pp. 244-245.)

Similarly, in this case, the trial court’s removal of defense counsel where

there was no dispute as to the existence of a potential conflict should Smith testify

did not violate defendant’s constitutional rights. Contrary to defendant’s assertion,

the record reveals that the court and the parties explored alternatives that would

have permitted defense counsel to continue to represent defendant, but none was

satisfactory. Additionally, nothing in the record supports defendant’s claim that

the prosecution engineered the conflict by putting Smith’s name on the witness list

with no intention of calling him. The prosecutor acknowledged that Smith might

not be called. This is simply an example of the difficulties of sorting through

potential conflicts of interest in the murk of pretrial “ ‘when relationships between

parties are seen through a glass, darkly.’ ” (People v. Jones, supra, 33 Cal.4th at

p. 241.) There is nothing on the record to support any allegation of misconduct by

the prosecutor and no amount of invective by defendant can compensate for that

deficiency. The trial court did not violate defendant’s right to counsel in this case.

Nor did the trial court abuse its considerable discretion in denying

defendant’s motion under Evidence Code section 352 to exclude Smith’s

testimony. The prosecution’s case was based on circumstantial evidence and

defendant’s admissions. The trial court did not err in declining to exclude

evidence of defendant’s admission to Smith. Moreover, we agree with the state

that there is no authority for the proposition that Evidence Code section 352

39



should be used to exclude prosecution evidence to avoid a conflict of interest

between a defendant and his attorney.

6. Application of Proposition 115 to Defendant’s Case

In June 1990, Proposition 115 was enacted into law by the electorate.

Among its provisions was a provision calling for reciprocal discovery. (Tapia v.

Superior Court (1991) 53 Cal.3d 282, 299.) In September 1990, the district

attorney, in reliance on this provision, filed a motion seeking discovery from the

defense. At the hearing on the motion, the trial court addressed defendant’s claims

that applying Proposition 115’s reciprocal discovery provision would violate

principles governing retroactivity as well as the ex post facto prohibition. The trial

court acknowledged that “this issue has yet to be ruled on by any appellate court,”

but stated it was “simply not convinced enough that the appellate court” would

rule in the prosecution’s favor on these issues. It therefore denied the motion.

In April 1991, in Tapia v. Superior Court, supra, 53 Cal.3d 299, we stated

that application of the reciprocal discovery provision to evidence obtained by the

defense after the passage of Proposition 115 did not constitute retroactive

application of the statute. Apparently on the heels of our decision in Tapia, the

district attorney renewed his motion for discovery. The trial court granted the

motion as to any defense evidence generated after June 1990.

Defendant now argues that the trial court’s reversal of its earlier ruling

violated his “due process rights under the state and federal [C]onstitutions,

because he justifiably relied on the court’s previous order and long-settled

principles of law in forming his trial strategy.” Not so. Any such reliance on the

trial court’s September ruling would not have been justifiable in light of the

fundamental change in law regarding reciprocal discovery effected by Proposition

115, and the trial court’s own recognition that application of that change in the law

40



to pending cases was in flux. Moreover, longstanding principles of law relevant to

the applicability of procedural changes to pending cases should have alerted

defendant to the distinct possibility that Proposition 115 would apply to his case.

Finally, none of the cases he cites in support of his claim is apposite.

At the time of the district attorney’s motion in September 1990, Proposition

115 had added article I, section 30, subdivision (c), to the California Constitution,

“providing that ‘discovery in criminal cases shall be reciprocal in nature, as

prescribed by the Legislature or by the people through the initiative process.’ ”

(Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371.) As we noted in Izazaga,

the “manifest intent behind the measure was to reopen the two-way street of

reciprocal discovery. The preamble to Proposition 115 states that ‘comprehensive

reforms are needed to restore balance and fairness to our criminal justice system.’

(Prop. 115, § 1(a), italics added.)” (Id. at p. 372.) Accordingly, defendant, like all

other criminal defendants in the state, was on notice that the electorate had

wrought a fundamental change in the law regarding discovery in criminal cases.

Defendant was also on notice that the related question of whether this

change applied to pending cases was unsettled. As we observed in Tapia, “both

the text of Proposition 115 and the related ballot arguments [were] entirely silent

on the question of retrospectivity.” (Tapia v. Superior Court, supra, 53 Cal.3d at

p. 287.) While ordinarily such silence gives rise to the presumption that a new

statute is intended to apply prospectively only, Proposition 115 contained

provisions that governed the conduct of trials, rather than the definition of,

punishment for, or defenses to crimes. As to such procedural provisions, the

general rule is that they apply to trials that have not yet taken place because

“[e]ven though applied to the prosecution of a crime committed before the law’s

effective date, a law addressing the conduct of trials still addresses conduct in the

future.” (Id. at p. 288.) Thus, in Tapia, as noted above, we concluded that the

41



reciprocal discovery provision of Proposition 115 applied to cases that had not yet

come to trial.

These principles were cited by the district attorney in his September 1990

motion to compel discovery. Indeed, he incorporated as an exhibit into his motion

the Attorney General’s return in Tapia, which was then pending before this court.

Thus, as the trial court acknowledged, the question of the application of reciprocal

discovery to people like defendant had not been settled by the appellate courts,

although at that very moment the issue was pending before us. The trial court’s

ruling represented no more than its best guess about the eventual outcome of this

controversy. Therefore, given the fundamental change in criminal discovery law

effected by Proposition 115, the longstanding principles regarding application of

procedural changes to future trials, the fact that the application of those principles

to the reciprocal discovery provision was a question pending before this court, and

the trial court’s recognition that appellate review had not settled the question,

defendant’s claim that he justifiably relied on the September 1990 order is not

persuasive.

No more persuasive is defendant’s claim to have relied on “long-settled

principles of law” in addition to the trial court’s ruling. Preliminarily, he fails to

identify what these principles might be. If he means the law regarding reciprocal

discovery in criminal cases prior to Proposition 115, that law was abrogated by

passage of the initiative and defendant relied on it at his own peril. If he means

the rule that, unless specified, a new statute is presumed to apply prospectively,

that was the very question that had not been settled at the time of the trial court’s

ruling.

Finally, none of the cases upon which defendant chiefly relies is apposite to

this case. People v. Mancheno (1982) 32 Cal.3d 855 primarily addressed the

question of the remedy to which a defendant is entitled when a trial court fails to

42



implement a provision of his or her plea agreement. Both People v. Davis (1994)

7 Cal.4th 797, and People v. King (1993) 5 Cal.4th 9 involved, in relevant part,

whether the overruling of prior precedent that increased the punishment for a

defendant’s crimes after they were committed could be applied to pending cases

without violating the ex post facto clause. We held, in each case, that the new rule

could not be applied to such cases. (People v. Davis, supra, 7 Cal.4th at pp. 811-

812; People v. King, supra, 5 Cal.4th at p. 80.) But the reciprocal discovery rule,

as we stated in Tapia, is a procedural not a substantive change and thus does not

implicate such ex post facto concerns. (Tapia v. Superior Court, supra, 53 Cal.3d

at pp. 297-299.) Finally, in both People v. Scott (1994) 9 Cal.4th 331 and People

v. Welch (1994) 5 Cal.4th 228, we declined to apply new rules requiring timely

objections at sentencing hearings as a prerequisite to raising certain issues on

appeal — a challenge to a probation condition as unrelated to defendant’s offense,

the failure of the court to articulate its discretionary sentencing choices — to cases

in which the sentencing hearings had occurred prior to the finality of our

decisions. We did this not as a matter of due process “but to ensure the equitable

and orderly administration of law.” (People v. Scott, supra, 9 Cal.4th at p. 357.)

None of these decisions supports defendant’s claim that application of reciprocal

discovery to his case violated his due process rights.

We conclude that defendant’s claim is without merit.14

14 Our conclusion makes it unnecessary to address defendant’s further claim that
the alleged due process violation requires reversal per se. We do note, however,
that the decision he cites in support of this proposition, Coleman v. McCormick
(9th Cir. 1989) 874 F.2d 1280, is inapposite. In Coleman, the defendant was tried
and sentenced to death under a statute — later held unconstitutional — that
required the imposition of the death penalty on defendants convicted of aggravated
kidnapping without any consideration of mitigating factors. A new death penalty
law was enacted, permitting consideration of aggravating and mitigating factors,

(footnote continued on next page)

43



B. Guilt Phase Issues

1. Evidentiary

Rulings

Defendant contends that the trial court erroneously admitted certain

prosecution evidence while erroneously excluding certain defense evidence. We

begin with a review of generally applicable principles pertaining to the admission

and exclusion of evidence.

“ ‘ “Only relevant evidence is admissible [citations], and all relevant

evidence is admissible unless excluded under the federal or California Constitution

or by statute. [Citations.] Relevant evidence is defined in Evidence Code section

210 as evidence ‘having any tendency in reason to prove or disprove any disputed

fact that is of consequence to the determination of the action.’ The test of

relevance is whether the evidence tends ‘ “logically, naturally, and by reasonable

inference” to establish material facts . . . .’ [Citation.] The trial court has broad

discretion in determining the relevance of evidence . . . .” (People v. Carter

(footnote continued from previous page)

and retroactively applied to the defendant. He received a new sentencing hearing
by the judge who presided over the original trial and who, in again imposing the
death sentence, relied on evidence from the original trial, including defense
evidence. In concluding that this procedure violated due process, the Ninth Circuit
declared: “Coleman was sentenced to death under a statute not in effect at the
time of his trial. The new statute added a sentencing ‘trial’ at which the
sentencing judge could consider any evidence that came in during the guilt phase.
By contrast, the old statute required the death penalty once a defendant was
convicted of aggravated kidnapping. Coleman’s counsel made countless tactical
decisions at trial aimed solely at obtaining Coleman’s acquittal, without even a
hint that evidence in the record would be considered as either mitigating or
aggravating factors.” (Id. at p. 1289.) Here, by contrast, as noted, defendant was
on notice as of June 1990 that the results of the defense’s investigation might be
discoverable by the prosecution. Defendant, unlike the defendant in Coleman,
should be able to demonstrate how his investigation was adversely impacted by
this possibility; he does not.

44



(2005) 36 Cal.4th 1114, 1166-1167.) Relevant evidence may nonetheless be

excluded under Evidence Code section 352 at the trial court’s discretion if “its

probative value is substantially outweighed by the probability that its admission

will (a) necessitate undue consumption of time or (b) create substantial danger of

undue prejudice, of confusing the issues, or of misleading the jury.” We review

rulings under this section for abuse of discretion. (People v. Ledesma (2006) 39

Cal.4th 641, 701.)

It is also well settled that the erroneous admission or exclusion of evidence

does not require reversal except where the error or errors caused a miscarriage of

justice. (Evid. Code, §§ 353, subd. (b), 354.) “[A] ‘miscarriage of justice’ should

be declared only when the court, ‘after an examination of the entire cause,

including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a

result more favorable to the appealing party would have been reached in the

absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; see People v.

Rains (1999) 75 Cal.App.4th 1165, 1170.) Additionally, a party may not complain

of the erroneous admission of evidence unless “[t]here appears of record an

objection to or a motion to exclude or to strike the evidence that was timely made

and so stated as to make clear the specific ground of the objection or motion . . . .”

(Evid. Code, § 353, subd. (a); but see People v. Partida, supra, 37 Cal.4th at

p. 431 [defendant who objects to admission of evidence at trial, and whose

objection is overruled, may “argue that the asserted error in overruling the trial

objection had the legal consequence of violating due process”].) Moreover, “[a]n

appellate court may not reverse a judgment because of the erroneous exclusion of

evidence unless the ‘substance, purpose, and relevance of the excluded evidence

was made known to the court by the questions asked, an offer of proof, or by any

other means.’ ” (People v. Livaditis (1992) 2 Cal.4th 759, 778; see Evid. Code,

§ 354, subd. (a).)

45



Bearing these principles in mind we turn to the evidentiary issues raised by

defendant.

a. Hair

Evidence

Defendant contends that the trial court erroneously admitted evidence of

two hairs, prosecution exhibits 14-A-1 and 16-A-2, because they were neither

relevant nor did the prosecution lay the proper foundation for their admission. He

also contends that the trial court erred by permitting one of the prosecution’s

experts to testify to a probability study, referred to as the Gaudette study.

Interwoven among these specific claims appears to be a general attack on the

admission of the hair evidence on relevance grounds.

Preliminarily, the Attorney General argues that defendant has forfeited

these claims because he failed to object to the admission of any of this evidence at

trial. (People v. Jablonski, supra, 37 Cal.4th at p. 823.) Defendant argues,

however, that the issues are preserved because the trial court overruled his

objections to this evidence at his first trial, which ended in mistrial. In support, he

cites statements by the trial court regarding other objections he made at the first

trial, which the trial court cited as a basis for overruling the same objections at his

second trial. But none of these statements involved the admissibility of the hair

evidence. “While it may not be necessary to renew an objection already overruled

in the same trial [citation], absent a ruling or stipulation that objections and rulings

will be deemed renewed and made in a later trial [citation], the failure to object

bars consideration of the issue on appeal. . . . A defendant may not acquiesce in

the admission of possibly excludable evidence and then claim on appeal that

rulings made in a prior proceeding render objection unnecessary.” (People v.

Clark (1990) 50 Cal.3d 583, 623-624, fn. omitted.) We agree, therefore, that the

claims are forfeited.

46



Even if his claims were not forfeited, they are without merit. Charles

Morton, one of the prosecution’s experts, testified that the two hairs to which

defendant specifically objects as irrelevant, exhibits No. 14-A-1, a fragment of

pubic hair found on the victim’s sweatshirt, and exhibit No. 16-A-2, a pubic hair

found on the evidence envelope, were consistent with defendant’s hair. Defendant

argues that the prosecution failed to establish these hairs were relevant because it

did not establish “that they were likely to have been placed at the scene of the

crime by the perpetrator.” Not so. Relevant evidence is evidence “having any

tendency in reason to prove or disprove any disputed fact that is of consequence to

the determination of the action.” (Evid. Code, § 210, italics added.) The evidence

need not be dispositive of the disputed fact. (See People v. Geier (2007) 41

Cal.4th 555, 587.) Evidence that hair consistent with defendant’s hair was

recovered from the place where the murder occurred, and from the victim’s

garment, is plainly relevant under the statutory definition and the court did not

abuse its discretion in admitting it. Defendant’s claim that the prosecution failed

to establish how long exhibit No. 14-A-1 had been in the residence goes to the

weight, not the admissibility, of the evidence. Absent a showing of abuse of

discretion, we defer to the trial court’s ruling.

Defendant also argues that exhibit No. 16-A-2 was admitted without a

proper foundation because it was found on the evidence envelope that contained

other hairs gathered at the scene which were identified as consistent with

defendant’s hair. At defendant’s first trial, where he actually raised this objection,

the trial court rejected the lack of foundation claim.

Although the record is not a model of clarity, the prosecution apparently

maintained that the three hairs found under the tape of the evidence envelope,

including exhibit No. 16-A-2, were originally in the envelope containing hairs

collected from the debris of the bathtub where the victim was found. The other

47



two hairs were consistent with either Naomi or Tammy Holley. The envelope

went first to the Department of Justice and then for examination by the

prosecution’s first expert, Steven O’Clair. The hairs were not beneath the tape

when O’Clair examined them and he examined all the hairs in an area that allowed

for no contamination. The envelope was then sent to one of the defense experts,

who, in turn, sent it to the prosecution’s second expert, Charles Morton. Morton

was the person who saw the hairs beneath the tape. The prosecution established

further that neither O’Clair, who testified at the preliminary hearing, nor anyone

on the prosecution team had opened the envelope during the preliminary hearing,

which apparently occurred before the envelope was sent to the defense expert.

The prosecution argued that it had laid a foundation for the admission of the hair

and that, if the evidence had been mishandled, it had been mishandled by the

defense expert, who examined the evidence between the times that O’Clair and

Morton had examined it. The trial court overruled the objection.

In a chain of custody claim, the proponent of the evidence must

demonstrate to the satisfaction of the trial court “ ‘ “that, taking all the

circumstances into account including the ease or difficulty with which the

particular evidence could have been altered, it is reasonably certain that there was

no alteration.” ’ ” (People v. Catlin, supra, 26 Cal.4th at p. 134.) The trial court’s

ruling on such a claim is reviewed for abuse of discretion. (Ibid.)

Here, the prosecution demonstrated that the hairs in question had

undoubtedly been in the evidence envelope, which contained other hairs gathered

from the bathtub at the Holley residence, rather than being stray hairs from an

unknown source, notwithstanding the fact that the defense expert may have

mishandled the evidence. Accordingly, we find no abuse of discretion.

Defendant also contends that the trial court erroneously allowed Steven

O’Clair, one of the prosecution’s experts, to testify that, according to a study

48



called, after its author, the Gaudette study, there was only a 1-in-800 probability

that pubic hair identified as consistent with one person could have come from

another person. Defendant did not object to the testimony, forfeiting the claim. In

any event, there was considerable skepticism expressed by the other experts,

including the prosecution’s second expert, Charles Morton, about the validity of

this study. The jury was capable of determining what weight to give this

testimony. Defendant points to statements by the prosecutor emphasizing the

study. It is axiomatic that statements by counsel are not evidence, and the jury

was so instructed. Finally, to the extent that defendant is attacking the admission

of any hair analysis evidence, we reject the argument; the evidence was clearly

relevant and the trial court did not abuse its discretion in so ruling.

b. Defendant’s Parole Status

Defendant contends that the trial court erroneously admitted a portion of his

statement to the police in which he noted that he had just been paroled from San

Quentin. The statement was in the context of his expression of disgust toward

child molesters: “I’ve just paroled out of San Quentin. I hate a child molester.

Even if I did go up for statutory rape, you know what, that’s the most sickest

. . . that’s the most lowest thing on this earth that you can do to another human

being.” He maintains that his references to having been paroled and his conviction

for statutory rape (actually it was forcible rape) amounted to impermissible

propensity evidence.

In overruling defendant’s objection, the trial court concluded that the

evidence was more probative than prejudicial under Evidence Code section 352 in

that it corroborated testimony by Tammy Petrea that defendant had killed April

because he did not want to be reincarcerated, and testimony by David Jurkovich

regarding defendant’s statement that April “wasn’t the first and she won’t be the

49



last.” The trial court also found that the statement was probative of defendant’s

knowledge of the sexual assault on April, which was known only to the

perpetrators and police.

We need not decide whether the trial court abused its discretion under

Evidence Code section 352 when it admitted this brief mention of defendant’s

parole status and prior imprisonment because, even if the court erred, defendant

could not possibly have been prejudiced. Before allowing the tape of the

interview to be played, the court instructed the jurors on the proper use of the

evidence, warned them that they would hear mention of defendant being on parole,

and admonished them that the statements were not to be considered as evidence of

propensity to commit the crimes at issue in this case. We deem this admonition to

have adequately ensured that the jury would not use these fleeting references as

propensity evidence and thus their admission, even if error, was harmless.

c. Victim

Photographs

Defendant contends that the admission of three photographs depicting

injuries to April’s genitals were irrelevant or, if relevant, that their probative value

was outweighed by their prejudicial effect. The prosecution introduced these

photographs into evidence in connection with the testimony of Dr. McCann, a

child sexual abuse expert, and Dr. Miller, who performed the autopsy.15

Preliminarily, while defendant indicated prior to trial that he would object

to crime scene and autopsy photographs as cumulative, at trial he failed to object

15 We requested these exhibits from the superior court. The court provided
exhibits 17 and 19 but informed us that exhibit 14 could not be located. However,
all of the victim photographs were attached to the prosecutor’s trial brief seeking
their admission. While the quality of the photocopies is not very good, it is at least
possible to conclude that these photographs, including exhibit 14, were no more
inflammatory or gruesome than exhibits 17 and 19.

50



to these photographs on any ground. Accordingly, he has forfeited his claim.

(People v. Farnam, supra, 28 Cal.4th at pp. 160-161.)

His contentions also lack merit. It is settled law that “ ‘admission of

photographs of a victim lies within the broad discretion of the trial court when a

claim is made that they are unduly gruesome or inflammatory.’ ” (People v.

Scheid (1997) 16 Cal.4th 1, 18.) We would not disturb the trial court’s decision to

admit the photographs unless “ ‘the probative value of the photographs clearly is

outweighed by their prejudicial effect. ’” (Ibid.) Contrary to defendant’s claim,

the photographs were highly relevant to the prosecution’s case. The photographs

showed the nature and placement of April’s injuries and tended to corroborate the

prosecution’s theory that April was raped and sodomized. Defendant argues that

there was no dispute April was raped. Not so. At trial, neither defendant nor

anyone else admitted raping or sodomizing April, and the prosecution was

therefore required to prove those allegations. The photographs were relevant to

that purpose. Moreover, the photographs assisted the testimony of the

prosecution’s child sexual abuse expert and the testimony of the doctor who

performed the autopsy of April’s body.

Moreover, having examined the exhibits in question, we also reject

defendant’s claim that the nature of the photographs rendered them more

prejudicial than probative. While the photographs are unpleasant because they

depict injuries to a child’s genitalia, they cannot be accurately described as

gruesome.16 Certainly, they would not have invoked the kind of prejudicial effect

16 Defendant also argues that the pictures were especially prejudicial at the
penalty phase. Not so. The prosecution has even more latitude to illustrate the
crime through photographs at the penalty phase than it does at the guilt phase. As
we recently stated, “[s]uch evidence cannot prejudice the defendant as to guilt, and
the brutal circumstances assist the jury in making its normative [citation] penalty

(footnote continued on next page)

51



that is the particular concern of Evidence Code section 352. (People v. Jablonski,

supra, 37 Cal.4th at p. 805 [“ ‘Evidence is substantially more prejudicial than

probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable “risk to

the fairness of the proceedings or the reliability of the outcome” ’ ”].)

d. Victoria Lopez’s Testimony

Over defendant’s hearsay objection, the prosecution was permitted to ask

Bobby Joe Marshall, Jr., whether he told Victoria Lopez that he, defendant, and

Steven Brown were at the Holley residence the night April was murdered and that

all three men had had sex with her. Marshall denied having made the statements.

The prosecution then called Victoria Lopez who testified that Marshall had made

these statements to her. Her testimony was admitted over defendant’s hearsay

objection as a prior inconsistent statement by Marshall. (Evid. Code, § 1235.)

On appeal, defendant renews the objection he made below that the

admission of Lopez’s testimony violated his confrontation rights. As he did

below, he relies primarily on People v. Rios (1985) 163 Cal.App.3d 852.

“ ‘The receipt in evidence of a prior inconsistent statement does not violate

the confrontation clauses of the federal and state Constitutions where the declarant

testifies at trial and is subject to cross-examination.’ ” (People v. Williams (1997)

16 Cal.4th 153, 200.) Here, Bobby Joe Marshall testified at trial and “when given

an opportunity to explain or deny [his] statements, . . . denied that he made them.”

(Id. at p. 199.) Thus, this case is distinguishable from the Rios case because there

the two witnesses who were impeached with prior inconsistent statements refused

(footnote continued from previous page)

decision.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1055.) Because we
have determined the photographs at issue here were admissible even at the guilt
phase, they were certainly admissible at the penalty phase.

52



to testify when called to the witness stand. In finding the admission of their prior

inconsistent statements was error, the reviewing court cited the rule that “ ‘there is

no “testimony” from which an inconsistency with any earlier statement may be

implied when the witness honestly has no recollection of the facts,’ ” and extended

it to a situation “ ‘where a witness gives no testimony and refuses to answer all

questions.’ ” (People v. Rios, supra, 208 Cal.App.3d at p. 962.)

Defendant also asserts — apparently for the first time — that admission of

Marshall’s statement to Lopez violated People v. Aranda (1965) 63 Cal.2d 518

and Bruton v. United States (1968) 391 U.S. 123. Even if this claim is not

forfeited, it is without merit. “Bruton and its progeny provide that if the

prosecutor in a joint trial seeks to admit a nontestifying codefendant’s extrajudicial

statement, either the statement must be redacted to avoid implicating the defendant

or the court must sever the trials.” (People v. Hoyos (2007) 41 Cal.4th 872, 895.)

Bruton is inapplicable here, as Marshall was neither a codefendant nor on trial.

Finally, defendant suggests that Lopez’s testimony runs afoul of Crawford

v. Washington (2004) 541 U.S. 36. “Crawford . . . held that testimonial out-of-

court statements offered against a criminal defendant are rendered inadmissible by

the confrontation clause unless the witness is unavailable at trial and the defendant

has a prior opportunity for cross-examination.” (People v. Geier, supra, 41

Cal.4th at p. 597.) Here, Marshall testified at defendant’s trial and was obviously

available for cross-examination.

e. Exclusion of Defendant’s Bathwater Expert

Defendant contends that the trial court erroneously excluded expert

testimony that he claims would have supported his defense that April was

murdered in the early morning of Sunday, December 4 by Steven Brown acting

alone, rather than by defendant and Brown on the night of December 3.

53



Specifically, defendant proposed to call Dr. Garrison Kost, a civil and structural

engineer, to testify to the “outflow rate of water in the bathtub based on commonly

accepted principles of flow and volume.” The purpose of this testimony was to

make a backward projection as to what time the bathtub had been filled to capacity

to show that April was killed about 1:30 in the morning of December 4, and thus

not by defendant, rather than at 9:30 p.m., the previous night, as suggested by the

testimony of various prosecution witnesses.

Conceding that “we have no precise data in this case, and no precise

measurements,” defense counsel stated that Kost’s testimony would be based on

an estimate given by Detective Johnson regarding the water level. Johnson

testified that, when he saw April at 2:30 p.m. on Sunday, there were five inches of

water in the bathtub and, when he removed the rag in the drain at 6:23 p.m., there

were about two or three inches left. The prosecution objected on the grounds that

“Detective Johnson testified that this was just an estimate. It could have been as

little as three inches, and as much as five inches.” The court also pointed out that

another problem with the expert’s assumption regarding the amount of water in the

bathtub was that “there’s an assumption being made here that this tub was actually

filled up to the overflow pipe, which is something else we don’t know, so we’re

left with speculation.” Additionally, the prosecutor pointed out, “there’s no way

to determine whether April’s face was on the drain, which would affect the flow.

[¶] There’s no way of knowing the effect of the removal of the body from the tub

on the rag.” He also pointed out other prosecution witnesses had given other

estimates regarding the amount of water in the tub.

The court concluded that “we’re gonna spend more time on this than it has

probative value,” but nonetheless allowed the defense to put Kost on the stand

outside the presence of the jury. Following Kost’s testimony, however, the trial

court sustained the prosecution’s objection and excluded the evidence because

54



“there’s just too many variables here, that this is far more likely to prejudice this

case than to be of any probative value, particularly with respect to the issue of the

estimate of the tub’s depth at the two points in time. [¶] You just can’t accurately

establish it, and it just leads to speculation.”

Under Evidence Code section 352, the trial court has wide discretion to

exclude evidence on the grounds that its probative value is substantially

outweighed by the risk of undue delay, prejudice or confusion. (People v. Geier,

supra, 41 Cal.4th at p. 581.) This discretion extends to the admission or exclusion

of expert testimony. (People v. Gardeley (1996) 14 Cal.4th 605, 619.)

“Generally, an expert may render opinion testimony on the basis of facts

given ‘in a hypothetical question that asks the expert to assume their truth.’

[Citation.] Such a hypothetical question must be rooted in facts shown by the

evidence, however. [Citation.]” (People v. Gardeley, supra, 14 Cal.4th at p. 618.)

It is true that “it is not necessary that the question include a statement of all the

evidence in the case. The statement may assume facts within the limits of the

evidence, not unfairly assembled, upon which the opinion of the expert is required,

and considerable latitude must be allowed in the choice of facts as to the basis

upon which to frame a hypothetical question.” (People v. Wilson (1944) 25 Cal.2d

341, 349.) On the other hand, the expert’s opinion may not be based “on

assumptions of fact without evidentiary support [citation], or on speculative or

conjectural factors . . . . [¶] Exclusion of expert opinions that rest on guess,

surmise or conjecture [citation] is an inherent corollary to the foundational

predicate for admission of the expert testimony: will the testimony assist the trier

of fact to evaluate the issues it must decide?” (Jennings v. Palomar Pomerado

Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.)

Kost’s reliance on Detective Johnson’s estimates of the amount of water in

the bathtub was questionable given that Johnson’s testimony was based on

55



estimates, not measurements, and that other witnesses made other estimates. But

even if Kost could have relied on these estimates, as the trial court and the

prosecutor pointed out, there were a number of variables that could have affected

the outflow as to which there was no evidence at all, e.g., whether the tub had been

filled to the overflow pipe, whether April’s face had blocked or partially blocked

the drain, and the effect of the removal of April’s body. Given these uncertainties,

we cannot say the trial court abused its discretion in excluding Kost’s testimony.17

f. Exclusion of Impeachment Evidence

Defendant contends that the trial court erred when it excluded evidence of

Tammy Petrea’s juvenile adjudication for narcotics use as well as prior testimony

that defendant argues was inconsistent with her trial testimony regarding her

whereabouts on Friday, December 2, the day before April’s murder. The trial

court excluded both bits of proposed impeachment evidence on the ground they

related to collateral matters. Given Petrea’s extensive testimony about her drug

use and prostitution, and the fact that she was impeached with three felony

convictions, the trial court’s ruling was well within its discretion. (People v. Ayala

(2000) 23 Cal.4th 225, 301 [purpose of trial court’s discretion to exclude

impeachment evidence under Evid. Code, § 352 is “ ‘to prevent criminal trials

17 Defendant cites events that occurred at the trial of Steven Brown as further
reason why the trial court erred in excluding Kost’s testimony, but considering
that Brown’s trial took place three years after defendant’s trial, this information
was obviously not before the trial court when it made its ruling, and is irrelevant
for purposes of our review of that ruling. (People v. Carpenter (1997) 15 Cal.4th
312, 408 [“The argument, based on events occurring after this trial, is not
cognizable on appeal. [Citation.] Moreover, a ruling by a different court in a
different trial has no bearing on the correctness of the rulings in this trial”].)

56



from degenerating into nitpicking wars of attrition over collateral credibility

issues’ ”].)

g. Exclusion of Steven Brown and Related Claim of Instructional

Error

At defendant’s first trial, defense counsel sought to compel the testimony of

Steven Brown, who was then in custody for April’s murder. Brown’s attorney

informed the court that Brown would exercise his Fifth Amendment privilege

against self-incrimination as to any questions. Nonetheless, at defense counsel’s

insistence, outside the presence of the jury, Brown was sworn in and declined to

respond to any questions. Defense counsel argued that defendant had a right to

call Brown so the jury could see his physical size — he was over six feet tall and

weighed over 200 pounds — to rebut prosecution testimony that it would have

taken two people to subdue April Holley. Defense counsel also argued that Brown

did not have a privilege with respect to certain questions about his 1988

incarceration and 1990 release date, and the offense which had led to his 1988

incarceration, or to questions about his sexual assault on Margaret Allen, which

occurred after the Holley murder and bore similarities to it.

The trial court rejected defense counsel’s argument that evidence regarding

the assault on Allen was not privileged because that case was on appeal, and

rejected as irrelevant testimony regarding Brown’s prior arrests, noting also that

whatever point counsel was attempting to make could be done “simply by putting

in the arrest records.” As to Brown’s physical size, the prosecutor pointed out that

the Holley murder had occurred four years previously and there was “no assurance

that Mr. Brown’s physical size as far as his weight and his strength would be the

same; therefore, the probative value of seeing him at this point is minimal.” He

also observed that the defense could make the point about Brown’s size by other

methods. The court agreed “the probative value of this is . . . minimal.” Brown’s

57



attorney also objected on his client’s behalf to being compelled to appear, noting

that his sister, who was a witness in defendant’s trial, “could testify to his size and

weight.” The court also noted that Brown’s appearance — “in shackles, and in

prison clothes, and unshaven” — could lead the jury to speculate about Brown’s

propensity for being dangerous rather than the issue of his size. The court denied

the defense motion.

Subsequently, the defense asked the trial court to instruct the jury that it

was prevented from calling Brown because of his assertion of the privilege.

Initially, the court was inclined to do so, but denied the request based on the

prosecution’s argument that such instruction was precluded by Evidence Code

section 913.

At this second trial, defendant renewed his motion to compel Brown’s

testimony based on the reasons presented at his first trial. Defense counsel

acknowledged that he had been informed by Brown’s attorney that he would once

again be asserting the privilege against self-incrimination. However, he argued

that Brown’s size was particularly relevant because of Roger Rummerfield’s

testimony that Brown and defendant were about the same height. He also

suggested that Brown be dressed in civilian clothing to allay concerns about his

appearance. The prosecutor noted that he had stipulated to Brown’s weight and

height and that at the previous trial the defense had been allowed to put into

evidence a “full body photograph.” The court denied the motion based on

representations that Brown would again invoke the privilege.

Defendant contends the trial court erred by failing to compel Brown to

assert his privilege before the jury; by precluding Brown from answering

questions regarding his 1988-1990 custody and subsequent release, and about the

Margaret Allen case; and by failing to compel Brown to appear before the jury so

it could assess his physical dimensions to rebut prosecution testimony that a single

58



person could not have subdued April. Finally, he argues the trial court erred in

failing to instruct the jury that Brown’s assertion of the privilege prevented the

defense from calling him.

We reject these claims. As to defendant’s first claim, we have observed:

“Allowing a witness to be put on the stand to have the witness exercise the

privilege before the jury would only invite the jury to make an improper inference.

[Citations.] Therefore, ‘it is the better practice for the court to require the exercise

of the privilege out of the presence of the jury.’ [Citation.] We have

‘commend[ed]’ the approach ‘as a means by which to avoid the potentially

prejudicial impact of the witness asserting the privilege before the jury.’

[Citation.]” (People v. Frierson (1991) 53 Cal.3d 730, 743; see People v. Smith

(2007) 40 Cal.4th 483, 516.) The trial court appropriately followed this procedure.

As to defendant’s second point, he fails to demonstrate that the trial court

erred in determining that evidence of his 1988-1990 incarceration was irrelevant

or, if relevant, could not have been established by means other than calling Brown.

Moreover, his claim that the trial court failed in its duty to evaluate the extent of

Brown’s privilege by conducting voir dire ignores the fact that, when given the

opportunity to question Brown, defense counsel declined to do so, thus indicating

acquiescence in the claim of privilege. With respect to the Margaret Allen case, as

Brown had not yet been tried for the Holley murder in which his assault on Allen

would undoubtedly have been relevant, defendant fails to demonstrate that he

could have inquired of Brown in any manner that would not have violated his

privilege.

We also reject defendant’s claim that Brown should have been called to

allow the jury to assess his physical dimensions. Defendant contends that such

evidence would have been relevant to rebut testimony that one person alone could

not have subdued April. But this was not the testimony; it was that the

59



circumstances of her drowning — in which her lower extremities did not show

immersion in water — were suggestive of more than one perpetrator. Thus, the

relevance of Brown’s size was, as the court noted, of minimal probative value,

particularly because his stature could be established by other means. We conclude

therefore that the trial court did not err in denying defendant’s request. (See

People v. Mincey (1992) 2 Cal.4th 408, 443.)

Finally, the trial court did not err in declining to instruct the jury that

Brown did not testify because of his assertion of the privilege. Such an instruction

may have invited the jury to infer that Brown had invoked the privilege because he

was guilty of the offense. Such inference is impermissible. (Evid. Code, § 913;

People v. Holloway (2004) 33 Cal.4th 96, 130 [“a person may invoke the privilege

for reasons other than guilt, and ‘[a] defendant’s rights to due process and to

present a defense do not include a right to present to the jury a speculative,

factually unfounded inference’ ”]; People v. Bernal (1967) 254 Cal.App.2d 283,

294 [“the defendant, as opposed to the witness, has no right which he may assert

superior or even equal to that of the witness who exercises the privilege against

self-incrimination . . . . [T]he claim of privilege having no evidentiary value, it

could have no relevance to the question of defendant’s guilt or innocence”].)

2. Prosecutorial Misconduct Claims

a. Prosecutorial Decisions Affecting Bobby Joe Marshall, Jr.

Defendant makes a lengthy, convoluted, and ultimately meritless claim that

accuses the prosecutor of “drop[ping] charges against Bobby Joe Marshall, Jr.,

even though the evidence showed and the prosecutor still believed that Bobby Joe

Marshall was involved in April’s murder, and then knowingly present [sic] the

perjured testimony of Bobby Joe Marshall, Jr. as the truth. Moreover, the

prosecutor hid the fact that Bobby Joe Marshall, Jr. believed the prosecution had

60



given him immunity in return for his testimony . . . . In his rebuttal argument the

prosecutor also misled the jury about the possibility that the District Attorney’s

Office would charge Bobby Joe Marshall, Jr. with April’s murder at some other

time.”

At defendant’s trial, Marshall testified that defendant told him he had killed

April in the early morning hours of Sunday, December 4. This testimony was

consistent with a statement Marshall made to police in March 1991, after Marshall

himself had been charged with the murder. Before being charged, Marshall had

told police he did not know who had killed April. After telling police about

defendant’s admission, the charges against Marshall arising from April’s murder

were dismissed. Marshall obtained a plea bargain for drug charges involving

incidents that occurred after April’s murder, but he was not given immunity for

this testimony against defendant. In his closing argument, the prosecutor

observed, “no one said anything about what’s going to happen to Mr. Marshall in

the future,” as well as telling the jury that Marshall had not been offered

immunity.

The prosecutor also explained to the jury that he disbelieved Marshall’s

testimony about defendant’s admission as well as Marshall’s alibi testimony,

which was that on the night of the murder he was driving around with Steven

Brown and Joe Mills. He told the jury he had called Marshall as a witness because

Marshall was “the connector, and the common denominator between Steve Brown

and Charlie Richardson. Did we present [Marshall’s] testimony regarding the

defendant’s statements to him in the bedroom because it’s true? No. [Marshall]

talked to Charlie Richardson all right, but it was the next morning . . . when they

were in the bedroom with Steve Brown, Charlie Richardson, and Bob Marshall, Jr.

That’s the import of that testimony.” In other words, the prosecutor suggested that

Marshall was present when April was killed.

61



Marshall also testified at Steven Brown’s trial, which followed defendant’s

trial. At that trial, Marshall testified on direct examination that he had been

offered immunity “to charges other than murder” if he told police what had

happened at the Holley residence, but had not been “granted immunity in this

case.” On cross-examination, Marshall testified that he believed he had been

offered immunity from charges arising from April’s murder. When, however,

defense counsel prefaced a question with the statement, “After you were granted

immunity,” the prosecutor objected that the question misstated the evidence and

the objection was sustained.

Based on this sequence of events, defendant asserts that the district attorney

made “assurances, if he did not make explicit promises, to encourage [Marshall] to

come up with his story about [defendant] confessing the crime to him.” The claim

that the prosecution suborned perjury is utterly without support in the record and

warrants no further discussion.

In a corollary claim, defendant suggests that the prosecutor dropped charges

against Marshall arising from April’s murder in exchange for Marshall’s false

statement that defendant confessed to him. Again, the assertion is without support

in the record. Moreover, “[p]rosecutors have broad discretion to decide whom to

charge, and for what crime. As we have observed, ‘[i]t is well established, of

course, that a district attorney’s enforcement authority includes the discretion

either to prosecute or to decline to prosecute an individual when there is probable

cause to believe he has committed a crime.’ ” (People v. Lucas (1995) 12 Cal.4th

415, 477.) There may have been many reasons — including the fact that, at the

time of the crime, Marshall was only 15 years old or that there was insufficient

evidence to charge Marshall as an accomplice — that the prosecutor may have

considered in deciding against prosecuting him. On the record before us, it is

impossible to determine what factors led the prosecution to decide against

62



pursuing charges against Marshall, and certainly there is no basis for any of the

invidious conclusions drawn by defendant. Rather, we assume that the

prosecutor’s decision regarding prosecution of Marshall involved factual and legal

variables committed to the prosecutor’s sound discretion.

Defendant also complains that the trial prosecutor misled the jury by

suggesting that Marshall might yet be charged with crimes arising from April’s

murder. Preliminarily, defendant did not object to these remarks and therefore his

claim is forfeited. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) In any event,

there was no misconduct by the prosecutor. In an argument that acknowledged the

convoluted circumstances involving Marshall, he said that the decision to

prosecute rests on a number of considerations, “and we told you right up front that

the case was dismissed against Bob Marshall, Jr., back in March,” before stating,

truthfully, that “no one said anything about what’s going to happen to [Marshall]

in the future,” and warning the jury against speculation along those lines. We find

no impropriety in this argument.

Nor do we agree with defendant that the prosecutor presented false

testimony to the jury because he disbelieved Marshall’s testimony that defendant

had confessed to him and instead believed that Marshall was present when April

was killed. “ ‘Under well-established principles of due process, the prosecution

cannot present evidence it knows is false and must correct any falsity of which it is

aware in the evidence it presents . . . .’ [Citation.]” (People v. Harrison (2005) 35

Cal.4th 208, 242.) That did not happen here. In this case, the prosecutor was very

clear about his assessment of Marshall’s testimony and why he had presented it

notwithstanding his doubts about Marshall’s veracity. He frankly told the jury he

did not believe Marshall was being truthful when he testified that defendant had

confessed to him — “Did we present Junior’s testimony regarding the defendant’s

statements to him in the bedroom because it’s true? No.”

63



Rather, he explained that he believed Marshall had spoken to defendant and

Brown about the crime the next morning when the three of them were overheard

by Kim Fleeman talking about getting their stories straight. The prosecutor

explained that the significance of Marshall’s testimony from the prosecutor’s

perspective was that Marshall connected defendant to Brown. Furthermore, while

the prosecutor had his opinion about Marshall’s credibility and shared that opinion

with the jury, he was not present at the events about which Marshall testified and

therefore could not definitively have known whether Marshall was perjuring

himself. Under these circumstances, we reject defendant’s claim that the

prosecutor violated his due process rights by knowingly presenting false evidence.

(See People v. Gordon (1973) 10 Cal.3d 460, 474 [no denial of due process where

prosecutor makes it clear that a prosecution witness’s testimony was of “doubtful

veracity” so that the jury could decide which “of the conflicting versions of the

incidents in question was true,” and prosecutor did not know that testimony was

perjured].)

b. Inconsistent

Theories

Defendant contends that the prosecutor violated his due process rights by

presenting factually and legally inconsistent theories at his trial and the trial of

Steven Brown.18 In In re Sakarias (2005) 35 Cal.4th 140, we held “that the

People’s use of irreconcilable theories of guilt or culpability, unjustified by a good

faith justification for the inconsistency, is fundamentally unfair, for it necessarily

creates the potential for — and, where prejudicial, actually achieves — a false

18 The trial court granted defendant’s motion to augment the record in his case
with the record of the Brown trial.

64



conviction or increased punishment on a false factual basis for one of the

accuseds.” (Id. at pp. 159-160.)

The scenario presented by Sakarias was that in the separate trials of

Sakarias and his codefendant Waidla, the prosecutor “attributed first to Waidla

alone and later to Sakarias alone . . . a series of blows to the victim’s head with the

hatchet blade. These two theories are irreconcilable; that Waidla alone inflicted

each of these wounds, as the prosecutor maintained at his trial, and that Sakarias

alone also did so, as the prosecutor maintained at his trial, is not possible. One or

the other theory (or both, if each man inflicted some but not all of the wounds)

must be false.” (In re Sakarias, supra, 35 Cal.4th at p. 160.) In our analysis of the

prejudicial effect of the misconduct, we observed, “where the probable truth of the

situation can be determined — where we are able to say which of the prosecution

theories was likely true and which false — only the defendant prejudiced by the

false attribution is entitled to relief.” (Id. at p. 164.)

Defendant maintains that in this case, as in Sakarias, the prosecutor argued

in defendant’s case that defendant killed April, and Brown merely assisted, while

at Brown’s trial, evidence was presented that Brown committed the murder and,

furthermore, that this evidence was suppressed by the prosecutor at defendant’s

trial. The claim is without merit.

The prosecution’s position at both defendant’s and Brown’s trials was that

defendant was April’s actual murderer with Brown acting as an aider and abettor.

At defendant’s trial, the prosecutor told the jury in closing argument, “Charles

Richardson is the actual murderer,” and that Brown “was not the actual murderer,

but he was there, and he helped.” To support this theory that Brown was not the

actual murderer, the prosecutor referred to his sexual assault on Margaret Allen in

which he attempted to drown her in her bathtub but stopped his attack after she

65



resisted him: “If he, Steve Brown, had killed an eleven year old girl before, by

himself, he wouldn’t have stopped with Margaret Allen.”

Similarly, the prosecutor at Brown’s trial argued, “We know that April

Holley was molested, that she was raped, that she was sodomized, and that she

was murdered by drowning in a bathtub. [¶] How do we know that? We know

that Charles Richardson has been convicted of those very crimes. But what else

do we know? We know that Charles Richardson did not and could not have acted

alone in his particular crimes. We know that Charles Richardson and Steven

Brown were accomplices, that they aided and abetted one another in the

commission of these crimes on April Holley.”19

Defendant, nonetheless, maintains that the prosecution at the Brown trial

relied on testimony that was not admitted at defendant’s trial and which depicted

Brown, not defendant, as April’s murderer. He claims further that the prosecutor

at the Brown trial emphasized this evidence to make that point. An examination

of the those passages of the record to which defendant directs us does not support

this claim.

Defendant points to evidence that Rhonda Schaub, Brown’s girlfriend

around the time of the murder, testified that Brown confessed to her that he had

killed April. What Schaub actually said was that she “asked [Brown] several

times if he had any involvement in her death. And not in the first conversation,


19 Defense counsel’s argument, unchallenged by the prosecution at the Brown
trial, was even more explicit: “And the last thing that you’ve got to consider is
whether or not Charles Richardson acted alone, because the starting place for this
trial is the fact that Charles Richardson is guilty of killing April Holley. You know
that. You heard his confession . . . The question is whether or not he acted alone.

Plainly, if the Brown jury heard that defendant confessed to killing April, the
prosecution was not hiding the ball from anyone as to the respective roles
defendant and Brown played in the murder.

66



the first couple conversations, but he was mad at me one morning and it come out

[sic] that he told me that he had killed April, but he would never be caught.” This

testimony followed testimony by other witnesses, among them Kim Fleeman, who

also testified at defendant’s trial, that defendant, Brown and Marshall had been

involved in the murder. In context, then, Schaub’s testimony that Brown said he

“killed” April did not necessarily convey the meaning that defendant ascribes to it

— that Brown personally murdered her. Rather, it can just as well be understood

as meaning that he was involved in the killing along with defendant and possibly

Marshall. Moreover, contrary to defendant’s further claim, the prosecutor did not

emphasize Schaub’s testimony in a manner that suggested Brown, and not

defendant, personally killed April. The prosecutor merely argued that Schaub’s

testimony was evidence of Brown’s participation — “he confessed to her he had

killed April Holley” — but not that Brown personally committed the murder to the

exclusion of defendant. Indeed, in his final remark to the jury, the prosecutor

asked it to find Brown guilty of the murder of April Holley because “Richardson

did not act alone.”

Even less compelling is the testimony of Lynn Farmer, another witness who

defendant maintains was used in the Brown prosecution to establish that Brown

personally killed April. Farmer testified to no such thing. He testified merely that

Brown told him he had done to Margaret Allen the same thing he had done to

April, not kill her, but sodomize her. Farmer testified: “[Brown] said he did the

same thing to the old lady as he did to April. [¶] . . . . [¶] ‘F—d her in the ass.’ ”

There was no question that Brown had done so.20

20 Nor do defendant’s complaints about the exclusion at his trial of testimony by
Farmer, Schaub, or Brown’s testimony in the Margaret Allen trial change this
analysis. Preliminarily, to the extent his challenge is to the trial court’s rulings, it

(footnote continued on next page)

67



Unlike Sakarias, then, the prosecutor did not argue at defendant’s trial that

defendant alone had killed April and then, inconsistently at Brown’s trial, that

Brown had killed April. The prosecutors in both cases proceeded on the theory

that defendant was the killer and Brown aided and abetted him. Variations in

emphasis where, as here, the underlying theory of the case was consistent at both

trials, does not amount to inconsistent and irreconcilable theories. (In re Sakarias,

supra, 35 Cal.4th at p. 161, fn. 3.)

3. Sufficiency of the Evidence for Lewd Conduct

Defendant contends that insufficient evidence supports his conviction of

lewd and lascivious conduct on a child under the age of 14 (§ 288) where he was

also convicted of rape and sodomy, unless there was evidence of lewd conduct

independent of the evidence supporting the rape and sodomy convictions. As he

acknowledges, we have previously considered and rejected this argument in other

cases. (People v. Benavides (2005) 35 Cal.4th 69, 97 [“Unless one offense is

necessarily included in the other [citation], multiple convictions can be based upon

a single criminal act or an indivisible course of criminal conduct (§ 954). Lewd

(footnote continued from previous page)

appears that he failed to press the court for a ruling as to Farmer’s testimony after
the court tentatively excluded the evidence but reserved final decision. Thus, any
assignment of error is forfeited. He also concedes that there is no record of the
portion of Schaub’s testimony — that Brown told her he killed April — he claims
was erroneously excluded in defendant’s trial. Thus, it is not clear that this is the
evidence that was excluded. Even if was, its exclusion does not support his
assertion that the prosecutor sought to exclude it to argue inconsistently that
defendant, not Brown, killed April. As noted above, Schaub’s testimony provided
evidence that Brown participated in the murder — a point the prosecution in
defendant’s case did not seek to conceal from the jury — but not necessarily that
he was the actual killer. Finally, he does not demonstrate that the trial court’s
exclusion of Brown’s testimony in the Allen case was error.

68



conduct with a child is not a necessarily included offense of either rape or sodomy,

which require only general intent”]; People v. Siko (1988) 45 Cal.3d 820, 823

[“Thus if a person rapes a 13-year-old child, he can be convicted of both rape and

lewd conduct with a child on the basis of that single act, but he cannot be punished

for both offenses; execution of the sentence for one of the offenses must be

stayed”]; People v. Pearson (1986) 42 Cal.3d 351, 354-363.)

4. Claims of Guilt Phase Instructional Error

a. Erroneous Instruction on Sodomy as a Basis for Felony

Murder

Defendant argues, and the Attorney General concedes, that the trial court

erred in instructing the jury that it could convict defendant of first degree murder

based on sodomy. At the time of April’s murder, sodomy was not included in

section 189’s enumeration of felonies supporting a first degree felony-murder

conviction; sodomy was added in June 1990 when the voters approved Proposition

115. In this case, however, the error is harmless in light of the jury’s finding that

the murder was committed in the commission of burglary, rape, and lewd acts.

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 97-98 [erroneous instruction

on sodomy felony-murder theory harmless because the jury’s verdict on the

robbery and burglary charges and related special circumstance allegations reflect

that the first degree murder conviction was grounded upon other valid legal

theories of felony murder]; accord, People v. Hughes (2002) 27 Cal.4th 287, 368;

see also People v. Marshall (1997) 15 Cal.4th 1, 38 [erroneous instruction on

robbery felony-murder theory harmless where “the jury unanimously found

defendant guilty of first degree murder on the valid theory that the killing occurred

during the attempted commission of a rape”].)

69



b. References to “Innocence” in CALJIC Nos. 1.01, 2.01, 2.51

and 2.52

Defendant contends that references to “innocence” in the jury instructions

given at his trial (CALJIC Nos. 1.01, 2.01, 2.51 and 2.52) unconstitutionally

shifted the burden of proof by suggesting that defendant was required to prove his

innocence rather than that the prosecution bore the burden to prove him guilty

beyond a reasonable doubt.21 “This court and the Court of Appeal have rejected

this claim in prior decisions [citations], and we do so again here. In light of the

numerous instructions directing the jury to convict only on proof beyond a

reasonable doubt of guilt [e.g., CALJIC Nos. 2.90, 8.71, 8.80], no reasonable

likelihood the jury would have understood the challenged instructions otherwise

exists.” (People v. Snow (2003) 30 Cal.4th 43, 97, fn. omitted; see People v. Frye

(1998) 18 Cal.4th 894, 957-958.)

c. CALJIC No. 2.03

Defendant contends that the trial court erroneously instructed the jury with

CALJIC No. 2.03, which permits the jury to consider any willfully false or

deliberately misleading statement made by defendant as a circumstance tending to

show consciousness of guilt provided that the jury first determines that he made

such a statement. Defendant contends the instruction is an improper pinpoint

instruction. We have previously considered and rejected such criticisms of the

instruction. (People v. Bacigalupo (1991) 1 Cal.4th 103, 127-128; People v. Kelly

(1992) 1 Cal.4th 495, 531-532.) We do so again here.

21 Defendant notes that CALJIC Nos. 2.51 and 2.52 were later amended to omit
any reference to innocence.

70



d. CALJIC Nos. 2.06, 2.52, 2.71.5

i. CALJIC No. 2.06

Defendant contends the trial court violated his due process rights by

instructing the jury with CALJIC No. 2.06 over his objection. That instruction

permitted the jury to consider as a circumstance showing consciousness of guilt

defendant’s suppression of evidence by, for example, witness intimidation or

concealment of evidence, if the jury found that he had engaged in such conduct.

The jury was cautioned, however, that “such conduct is not sufficient by itself to

prove guilt, and its weight and significance, if any, are matters for your

consideration.” Defendant contends there was insufficient evidence to support the

giving of the instruction.

Evidence produced at defendant’s trial indicated that, on the night of the

murder, he removed drawings from the Holley residence that April had done for

him and which identified him by a nickname she had given him. Later, while he

was in flight, he called Bob Marshall, Sr., and asked him to “put up” the pictures.

Defendant maintains that this evidence was insufficient to demonstrate that he

concealed any evidence. We disagree. The evidence suggested that, by removing

the drawings after the crime and then later asking Bob Marshall, Sr., to “put up”

the drawings, defendant was attempting to conceal evidence that he had been a

recent visitor to the Holley residence and had had contact with the victim. This

evidence was sufficient to give the instruction. (People v. Wilson (2005) 36

Cal.4th 309, 330; People v. Jackson, supra, 13 Cal.4th at p. 1225.) In any event,

even if the instruction was given in error, any error was harmless in light of the

evidence of defendant’s guilt.

ii. CALJIC No. 2.52

Defendant contends the trial court violated his due process rights by

instructing the jury with the standard flight instruction, on the ground that the

71



prosecution failed to prove that his departure from Tulare County the day after

April’s murder constituted flight. Defendant maintains this is a preliminary

foundational fact that must be established before the instruction can be given.

Defendant claims there was evidence that he had planned to leave Tulare for the

San Francisco Bay Area several days before the murder.

The evidentiary basis for the flight instruction requires sufficient, not

uncontradicted, evidence. (People v. Cannady (1972) 8 Cal.3d 379, 391.)

Moreover, section 1127c “makes mandatory the giving of an instruction on flight

where evidence of a defendant’s flight is relied upon as tending to show guilt, and

the giving of such an instruction in appropriate cases repeatedly has been

approved.” (Cannady, at p. 391, fn. omitted.) Finally, the instruction applied only

if the jurors found flight had been shown; if they did not so find here, they would

have disregarded the flight instruction as they were also instructed. (CALJIC No.

17.31; People v. Jackson, supra, 13 Cal.4th 1164, 1225; People v. Lamer (2003)

110 Cal.App.4th 1463, 1472.)

iii. CALJIC No. 2.71.5

Defendant contends that the trial court violated his due process rights when

it gave CALJIC No. 2.71.5, the standard instruction on adoptive admissions. That

instruction permits the jury to assess a defendant’s failure to deny an accusation or

a defendant’s false, evasive, or contradictory statements in the face of an

accusation as an admission of the truth of the accusation under circumstances

where the defendant reasonably had an opportunity to reply and heard and

understood the nature of the accusation. Defendant contends that he did not

remain silent in the face of police questioning but “talked and talked and talked.”

This is true, but, as the trial court essentially found when it overruled his objection

to the instruction, much of that talk was false, evasive and contradictory when

72



confronted by the accusation that he was a participant in April’s murder. (Cf.

People v. Fauber (1992) 2 Cal.4th 792, 852 [given the inferences “that the

defendant heard and understood [an unavailable witness’s] statements and had the

opportunity to deny them, and that he chose to remain silent except for an evasive

and equivocal statement,” the statements were “properly allowed as adoptive

admissions”].) Moreover, the jury was instructed that it alone was to decide

whether an admission was made and to view with caution evidence of such

admission. Under these circumstances the giving of the instruction was

appropriate and did not violate any of defendant’s constitutional rights.

e. CALJIC Nos. 3.00, 3.01, 3.02

Defendant challenges three instructions given by the trial court that defined

principals to a crime as including both the direct perpetrator and aiders and

abettors (CALJIC No. 3.00; Pen. Code, § 31), further defined aiding and abetting

(CALJIC No. 3.01), and set forth the natural and probable consequences doctrine

(CALJIC No. 3.02).

Defendant first maintains that the natural and probable consequences

doctrine as reflected in CALJIC No. 3.02 unconstitutionally imposes criminal

liability based on a negligence standard. Not so. “[W]e reject the premise of

[defendant’s] argument that the application of the natural and probable

consequences doctrine in capital cases unconstitutionally predicates murder

liability on mere negligence. Liability as an aider and abettor requires knowledge

that the perpetrator intends to commit a criminal act together with the intent to

encourage or facilitate such act; in a case in which an offense that the perpetrator

actually commits is different from the originally intended crime, the natural and

probable consequences doctrine limits liability to those offenses that are

73



reasonably foreseeable consequences of the act originally aided and abetted.”

(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 108.)

Similarly, we have previously rejected the argument, advanced by

defendant here, that the natural and probable consequences doctrine

unconstitutionally presumes malice on the part of the aider and abettor. (People v.

Garrison (1989) 47 Cal.3d 746, 777-778; People v. Bunyard (1988) 45 Cal.3d

1189, 1231-1232; see also People v. Culuko (2000) 78 Cal.App.4th 307, 322

[“The [California] Supreme Court has repeatedly rejected the contention that an

instruction on the natural and probable consequences doctrine is erroneous

because it permits an aider and abettor to be found guilty of murder without

malice”].)

Finally, in a lengthy and convoluted argument, defendant appears to

contend that the natural and probable consequences instruction was deficient

because it did not inform the jury that defendant could not be convicted based on

the natural and probable consequences doctrine unless he recognized that murder

was the natural and probable consequence of the target offenses. First, we reject

any challenge to the adequacy of CALJIC No. 3.02’s explication of the natural and

probable consequences doctrine. Second, defendant’s reliance on People v. Prieto

(2003) 30 Cal.4th 226, a case in which the trial court failed to identify and define

the target offenses (id. at p. 252) is inapposite as that error did not occur here.

Third, to the extent defendant’s argument is the same argument advanced in

People v. Coffman and Marlow, supra, 34 Cal.4th 1, we reject it for the same

reasons given there: “To the extent [defendant] contends that imposition of

liability for murder on an aider and abettor under this doctrine violates due process

by substituting a presumption for, or otherwise excusing, proof of the required

mental state, [he] is mistaken. Notably, the jury here was also instructed with

CALJIC No. 3.01, advising that an aider and abettor must act with the intent of

74



committing, encouraging or facilitating the commission of the target crime, as well

as CALJIC No. 8.81.17, which required, for a true finding on the special

circumstance allegations, that defendant[] had the specific intent to kill the victim.

These concepts fully informed the jury of applicable principles of vicarious

liability in this context.” (Id. at p. 107.)

f. CALJIC No. 3.03

Without objection by defendant, the trial court instructed the jury with

CALJIC No. 3.03 as follows: “One who has aided and abetted the commission of

a crime, may end his responsibility by notifying the other party or parties of whom

he had knowledge of his intention to withdraw from the commission of the crime

and by doing everything in his power to prevent its commission.”22 Defendant

asserts, without any citation to authority, that this instruction “imposes an

unreasonable burden on the person desiring to withdraw from the criminal

activity.” The instruction is a correct statement of the law. (People v. Norton

(1958) 161 Cal.App.2d 399, 403.) Insofar as defendant contends that it should

have been modified, his failure to seek such modification forfeits the claim.

(People v. Guerra (2006) 37 Cal.4th 1067, 1134 [while the court may review

unobjected-to instruction that allegedly implicates defendant’s substantial rights,

claim that instruction, correct in law, should have been modified “is not

cognizable, however, because defendant was obligated to request clarification and

failed to do so”].)

22 Defendant excuses his failure to object to this and other instructions with
section 1259 which states in relevant part: “The appellate court may also review
any instruction given, refused or modified, even though no objection was made
thereto in the lower court, if the substantial rights of the defendant were affected
thereby.”

75



g. Failure to Give Instructions on Accomplice Testimony;

CALJIC No. 2.27

Defendant contends the trial court erred when it failed to give a series of

instructions regarding accomplice testimony with respect to the testimony of

Bobby Joe Marshall, Jr. He maintains that the evidence established Marshall was

an accomplice as a matter of law and, therefore, the jury should have been

instructed with CALJIC Nos. 3.10 (definition of accomplice), 3.11 (requiring

corroboration of accomplice testimony), 3.12 (defining the quantum of evidence

sufficient to corroborate accomplice testimony), 3.13 (precluding the

corroboration by one accomplice of another accomplice’s testimony), 3.14

(criminal intent necessary to make one an accomplice), 3.18 (accomplice’s

testimony should be viewed with distrust), and 3.19 (defendant had burden to

prove by preponderance that witness was an accomplice).

We reject defendant’s claim that the evidence established Marshall was an

accomplice as a matter of law. Section 1111, which requires corroboration of

accomplice testimony with “such other evidence as shall tend to connect the

defendant with the commission of the offense,” defines an accomplice as “one

who is liable to prosecution for the identical offense charged against the defendant

on trial in the cause in which the testimony of the accomplice is given.” “To be so

chargeable, the witness must be a principal under section 31. That section defines

principals as ‘[a]ll persons concerned in the commission of a crime, whether . . .

they directly commit the act constituting the offense, or aid and abet in its

commission . . . .’ (§ 31.) An aider and abettor is one who acts with both

knowledge of the perpetrator’s criminal purpose and the intent of encouraging or

facilitating commission of the offense. Like a conspirator, an aider and abettor is

guilty not only of the offense he intended to encourage or facilitate, but also of any

reasonably foreseeable offense committed by the perpetrator he aids and abets.”

76



(People v. Avila (2006) 38 Cal.4th 491, 564.) A person is an accomplice as a

matter of law only if “ ‘there is no dispute as to either the facts or the inferences to

be drawn therefrom.’ [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211,

1271.)

The evidence in this case did not establish Marshall was an accomplice in

the sexual assault and murder of April Holley as a matter of law under the

standard articulated above. There was evidence that Marshall admitted to one

witness that he was present at the Holley trailer on the night of the murder and had

engaged in sexual intercourse with April, and that another witness overheard him

talking to defendant and Brown the next morning about getting their stories

straight. On the other hand, Marshall testified at defendant’s trial and denied that

he had been present or had had any sexual contact with April. While it is true, as

defendant notes, that Marshall was at one point charged with April’s murder, it is

also true that after he told police that defendant had confessed to him, the charges

were dropped. On this record then, it cannot be said that the evidence that

Marshall was an accomplice to the murder was undisputed either in terms of the

facts or the inferences to be drawn therefrom.

Whether the evidence was sufficient to have required the trial court to give

the accomplice instructions sua sponte presents a closer question. “ ‘ “[W]henever

the testimony given upon the trial is sufficient to warrant the conclusion upon the

part of the jury that a witness implicating a defendant was an accomplice,” ’ the

trial court must instruct the jury, sua sponte, to determine whether the witness was

an accomplice.” (People v. Zapien (1993) 4 Cal.4th 929, 982.) As defendant

notes, even the prosecutor disbelieved Marshall’s claim that he had not been

present at the Holley residence the night of the murder and so informed the jury.

Nonetheless, mere “presence at the scene of a crime or failure to prevent its

commission [is not] sufficient to establish aiding and abetting.” (People v.

77



Stankewitz (1990) 51 Cal.3d 72, 90.) Here, there was no physical evidence to

support the conclusion that Marshall aided and abetted the assault upon and

murder of April Holley, unlike the hair and semen evidence that implicated

defendant and Brown, and neither of Marshall’s statements — the one he made to

Vicky Lopez or the one overheard by Kim Fleeman — incriminated Marshall in

the murder.

In any event, even assuming error, “[a] trial court’s failure to instruct on

accomplice liability under section 1111 is harmless if there is ‘sufficient

corroborating evidence in the record.’ [Citation.] To corroborate the testimony of

an accomplice the prosecution must present ‘independent evidence,’ that is,

evidence that ‘tends to connect the defendant with the crime charged’ without aid

or assistance from the accomplice’s testimony. [Citation.] Corroborating

evidence is sufficient if it tends to implicate the defendant and thus relates to some

act or fact that is an element of the crime. [Citations.] ‘ “[T]he corroborative

evidence may be slight and entitled to little consideration when standing alone.

[Citation.]’ ” (People v. Avila, supra, 38 Cal.4th at pp. 562-563.)

Here, as our recitation of the evidence in this case makes clear, Marshall’s

testimony was not a pivotal part of the case against defendant and it was amply

corroborated by other evidence of defendant’s guilt. Moreover, Marshall’s

veracity was questioned even by the prosecutor and it was certainly unnecessary to

instruct the jury to view his testimony with distrust. Thus, any error in failing to

give the accomplice testimony instructions was harmless.

In a corollary claim, defendant maintains that the trial court’s failure to give

accomplice instructions rendered erroneous CALJIC No. 2.27, which informed the

jury that the uncorroborated testimony of a single witness is sufficient for proof of

that fact. The instruction also told the jury, however, that it was free to assign

such uncorroborated testimony any weight and should carefully review all

78



evidence upon which proof of a fact established by uncorroborated testimony

depends. Defendant asserts that this instruction allowed the jury to convict

defendant based on Marshall’s uncorroborated testimony.

As noted above, Marshall was not an accomplice as a matter of law and it is

not even clear the evidence would have supported submitting to the jury the issue

of whether he was an accomplice. In any event, we “do not believe a reasonable

juror would have been so misled” by the instruction (People v. Moore (1988) 47

Cal.3d 63, 87), and based his or her decision solely on the uncorroborated

testimony of Marshall that defendant confessed to him, given that even the

prosecutor who presented the evidence disavowed Marshall’s testimony, and given

the substantial corroborative evidence of defendant’s guilt.

h. CALJIC No. 3.31.5

The jury was instructed with CALJIC No. 3.31 that “[I]n each of the crimes

charged, and the allegations charged in counts one, two, three, four and five of the

Information, there must exist a union, or joint operation, of act or conduct and a

certain specific intent in the mind of the perpetrator. Unless such specific intent

exists the crimes or allegations as to which it relates are not committed.”

Defendant contends the trial court erred by not giving, sua sponte, CALJIC 3.31.5.

That instruction provides in relevant part: “In the crime[s] charged in Count[s]

___, ___ and ___ . . . there must exist a union or joint operation of act or conduct

and a certain mental state in the mind of the perpetrator. Unless this mental state

exists the crime to which it relates is not committed.” The point of defendant’s

argument, insofar as it can be ascertained, is that the failure of the court to have

given this instruction may have left the jury in doubt about the necessity for the

concurrence of act and intent. (See § 20.)

79



There was no error. CALJIC No. 3.31 informed the jury that the crimes

charged required a union of act and intent “in the mind of the perpetrator,” and

there was no issue raised by the evidence regarding the concurrence of intent and

conduct. In the absence of any factual issue regarding concurrence, there is no

basis upon which to conclude that the jury’s verdict was in any way affected by

the alleged instructional error. (Cf. People v. Cleaves (1991) 229 Cal.App.3d 367,

381 [even assuming trial court erred in failing to instruct on concurrence between

act and general intent, any error was harmless in light of instruction given and

absence of any factual dispute regarding concurrence].)

i. CALJIC No. 4.50

Defendant contends that the trial court erroneously rejected his proposed

modification of CALJIC No. 4.50. The proposed modification is set forth in

italics: “The defendant in this case has introduced evidence for the purpose of

showing that he was not present at the time and place of the commission of the

alleged crimes for which he is here on trial. The burden of proof is always on the

prosecution. It never shifts to the defendant. The defendant is not required to

prove beyond a reasonable doubt or even by a preponderance of the evidence that

he was not present at the time and place of the commission of the alleged crimes.

If, after consideration of all the evidence, you have a reasonable doubt that the

defendant was present at the time the crime was committed, you must find him not

guilty.” The instruction, minus the modification, was read to the jury. Defendant

asserts the modification was proper because it tracks language in a federal

instruction that states, “The government has the burden of establishing beyond a

reasonable doubt the defendant’s presence at that time and place.” (9th Cir.

Manual of Model Crim. Jury Instns., Instn. No. 6.1 (1997).) Defendant claims his

80



modification, like the federal instruction, “simply emphasized the burden of

proof.”

Defendant’s modification went far beyond emphasis and strayed into the

argumentative. The trial court properly rejected it. (People v. Williams (1988) 45

Cal.3d 1268, 1323-1324 [“It is long settled . . . that a court may properly refuse an

instruction that is argumentative in nature”].) Moreover, to the extent it repeated a

legal principle covered by other instructions relating to reasonable doubt, such as

CALJIC No. 2.90, it was properly rejected as repetitious. (People v. Garceau

(1993) 6 Cal.4th 140, 192-193.)

j. CALJIC No. 4.71

Defendant contends that the trial court violated his due process rights when,

over his objection, it instructed the jury with CALJIC No. 4.71, which stated:

“When, as in this case, it is alleged that the crime charged was committed ‘on or

about’ a certain date, if you find that the crime was committed, it is not necessary

that the proof show that it was committed on that precise date; it is sufficient if the

proof shows that the crime was committed on or about that date.” Defendant

claims that the instruction was improper because the prosecution argued at trial

that April was murdered by defendant on the night of December 3, sometime

between 9:00 and 10:00 p.m. and he provided an alibi for this timeframe.

“The comment to CALJIC No. 4.71 states in pertinent part: ‘This

instruction is improper if the People’s evidence fixes the commission of the

offense at a particular time to the exclusion of any other time and the defendant

has presented evidence of an alibi as to that particular time. . . .’ This comment

accurately recognizes the rule as developed by the courts.” (People v. Jones

(1973) 9 Cal.3d 546, 557.) “Ordinarily, the People need not plead the exact time

of commission of an alleged offense. (Pen. Code, § 955.) However, if the defense

81



is alibi . . . the exact time of commission becomes critically relevant to the

maintenance of the defense. An instruction which deflects the jury’s attention

from temporal detail may unconstitutionally impede the defense.” (People v.

Barney (1983) 143 Cal.App.3d 490, 497.)

At trial, the prosecutor argued that the instruction was proper because the

prosecution had not made an irrevocable choice regarding the timing of the murder

and that he should be free to argue that the murder occurred on the evening of

December 3 or the early morning of December 4. After initially indicating it

would not give the instruction because of a defense objection, the trial court

decided to give the instruction. Although the prosecution reserved the right to

argue the murder occurred in the early morning hours of December 4, in fact the

prosecutor argued that the murder occurred between 9:00 and 10:00 p.m. on

December 3 based on evidence that April was heard screaming by three different

people. Therefore, it appears that the prosecution made an election regarding the

time of the murder.

82



On the other hand, as the Attorney General notes, defendant presented, at

best, only a partial alibi for his whereabouts during this time. Defendant left the

Hernandez house around 9:10 p.m. Bob Marshall, Sr., testified that defendant was

back at the Marshall trailer at 10:00 p.m., but Tammy Petrea testified that he

appeared at Jimmy Rousanvall’s bus about 11:00 p.m., while still another

prosecution witness testified that he saw defendant in the vicinity of the Holley

residence at 11:30 p.m. with someone who fit Steven Brown’s description.

Given this state of the evidence — where the prosecution could have

argued that the murder occurred sometime between 9:00 p.m. and 11:30 p.m. of

December 3, if not in the early morning of December 4, and the inability of the

defense to have established a firm alibi for defendant during this timeframe, the

trial court did not err in deciding to give the instruction. It did not deflect the

jury’s attention from a crucial temporal element for which the defendant had an

alibi. The prosecution’s subsequent election during argument of a specific time

period — from 9:00 to 10:00 p.m. — did not render the instruction erroneous so

much as irrelevant.

“In reviewing [a] purportedly erroneous instruction[], ‘we inquire “whether

there is a reasonable likelihood that the jury has applied the challenged instruction

in a way” that violates the Constitution.’ [Citation.] In conducting this inquiry,

we are mindful that ‘ “a single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall charge.” ’ [Citations.]”

(People v. Frye, supra, 18 Cal.4th at p. 957.) “Additionally, we must assume that

jurors are intelligent persons and capable of understanding and correlating all jury

instructions which are given.” (People v. Mills (1991) 1 Cal.App.4th 898, 918.)

In this case, the jury was additionally instructed: “The purpose of the court’s

instructions is to provide you with the applicable law so that you may arrive at a

just and lawful verdict. Whether some instructions apply will depend upon what

83



you find to be the facts. Disregard any instruction which applies to facts

determined by you not to exist. Do not conclude that because in instruction has

been given that I am expressing an opinion as to the facts.”

We conclude, therefore, that the instruction was not erroneously given and

that, to the extent it became irrelevant, there is no reasonable likelihood it was

applied in a manner that resulted in a constitutional violation.

C. Penalty Phase Issues

1. Effect of Guilt Phase Errors on Penalty Phase

Defendant contends that the Eighth Amendment requires that his death

sentence be reversed because of the cumulative effect of guilt phase errors unless

the People demonstrate that those errors were harmless beyond a reasonable doubt,

even if these errors are found to be harmless in the context of the guilt phase. No

authority directly supports this claim. Moreover, given that we have either

rejected defendant’s claims of error or found the errors harmless, we conclude

further that “there is no reasonable possibility that these errors, singly or in

combination, affected the jury’s verdict.” (People v. Brown (1988) 46 Cal.3d

432, 463.)

2. “Double Counting” of Special Circumstances and Consideration

of Sodomy Special Circumstance

Relying on language in People v. Harris (1984) 36 Cal.3d 36, defendant

argues that the trial court erroneously instructed the jury it could consider the lewd

act special circumstance because the underlying conduct also supported the rape

and sodomy special circumstances. Defendant fails to note, however, that in

People v. Melton (1988) 44 Cal.3d 713, “a majority of the court declined to adopt

this portion of the Harris plurality opinion, and held that it is not improper for a

penalty jury to take into consideration the fact that a murder was committed in the

84



course of two statutorily enumerated felonies, even if the felonies were part of an

indivisible course of conduct.” (People v. Ramirez (1990) 50 Cal.3d 1158, 1197.)

As we explained in Melton, which involved burglary and robbery special

circumstances, “it is constitutionally legitimate for the state to determine that a

death-eligible murderer is more culpable, and thus more deserving of death, if he

not only robbed the victim but committed an additional and separate felonious act,

burglary, in order to facilitate the robbery and murder.” (People v. Melton, supra,

44 Cal.3d at p. 767; accord, People v. Davis (1995) 10 Cal.4th 463, 545-546 [jury

may consider both kidnapping and sodomy special circumstances as multiple

factors in aggravation even though the crimes were part of a single course of

conduct].)

As we have explained in rejecting defendant’s claim that insufficient

evidence supported his lewd conduct conviction, lewd conduct is a separate

offense from either rape or sodomy and therefore the jury could consider all three

special circumstances under section 190.3, factor (a), which authorizes the jury, in

determining the penalty, to consider, inter alia, “the existence of any special

circumstances found to be true pursuant to Section 190.1.” (Ante, p. 69.)

In a related argument, defendant contends that the trial court’s error in

instructing the jury on felony murder based on sodomy should have precluded the

jury’s consideration of the sodomy special circumstance. As the Attorney General

observes, however, while sodomy was not an offense enumerated in the felony

murder statute in 1988, it was among the offenses listed in the special

circumstance statute in 1988. Therefore, the jury properly considered it at the

penalty phase. (§ 190.3, factor (a).) Defendant’s claim that the trial court’s

“erroneous instruction on felony murder could have influenced the jury’s true

finding on the sodomy special circumstance allegation” is sheer speculation.

85



3. Evidentiary

Rulings

a. Testimony of Michael M.

Section 190.3 authorizes the admission of evidence, as a factor in

aggravation, regarding “the presence or absence of other criminal activity by the

defendant which involved the use or attempted use of force or violence or which

involved the express or implied threat to use force or violence . . . .” (See also

§ 190.3, factor (b).) Under this rubric, the prosecution presented the testimony of

Michael M., who had been an inmate with defendant in the Alameda County jail,

that defendant, after learning M. had been convicted of rape, forced M. to orally

copulate him and then subsequently sexually assaulted him 10 to 20 times. Over a

defense objection, M. also testified that defendant was the “head white

representative of the barracks” and in that capacity he told M. he would have to

take care of defendant’s friends; M. did perform sex acts on other inmates for

defendant. In admitting this testimony, the trial court agreed with the prosecution

that it was admissible as evidence that defendant aided and abetted Steven Brown

in the sexual assault on April Holley and that it was also relevant in light of

evidence that defendant had participated in the gang rape of Gina I.

Defendant advances a number of challenges to the trial court’s admission of

this evidence. None has merit.

Defendant first contends that the admission of evidence that defendant was

“head white representative” was error in light of Dawson v. Delaware (1992) 503

U.S. 159.) In Dawson, the Supreme Court held that admission into evidence of the

defendant’s membership in a White supremacist gang at the penalty phase of his

murder trial violated the First and Fourteenth Amendments because the evidence

was irrelevant to any issue in the proceeding. (Dawson, at pp. 165-169.) In this

case, however, the trial court concluded that defendant’s leadership role in the

unnamed “White” group was relevant — not to demonstrate that defendant was a

86



racist — but to explain his influence over other inmates who also sexually

assaulted M. at defendant’s instigation and with his encouragement. This, in turn,

was relevant to defendant’s participation as an aider and abettor in group sexual

assaults. We conclude that the trial court did not abuse its discretion in admitting

this testimony.

Defendant also argues, in essence, that insufficient evidence supported the

uncharged criminal activity because it rested on M.’s testimony alone. Not so. It

is well settled that, under the prevailing standard of review for a sufficiency claim,

we defer to the trier of fact’s evaluation of credibility. (People v. Snow, supra, 30

Cal.4th at p. 66.) Moreover, the testimony of a single witness is sufficient for the

proof of any fact. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.)

Defendant provides us with no reason to depart from these principles.

Next, defendant maintains that the statute of limitations had run on

defendant’s sexual assault of M. and should have precluded the admission of M.’s

testimony. We have repeatedly rejected this claim. (People v. Carpenter (1999)

21 Cal.4th 1016, 1061 [“The court did not err in admitting evidence of crimes for

which charges were never brought or were dismissed as part of plea bargains, and

on which the statute of limitations had expired”]; People v. Medina (1995) 11

Cal.4th 694, 772 [“neither remoteness nor the expiration of the statutory

limitations period bars admission of a defendant’s prior unadjudicated criminal

activity for purposes of section 190.3, factor (b)”].) We do again here.

We have also repeatedly rejected, and again reject, defendant’s final claim

that section 190.3 violates due process by allowing the penalty phase jury to

consider unadjudicated criminal activity. (People v. Bolin, supra, 18 Cal.4th at p.

335; People v. Balderas, supra, 41 Cal.3d at pp. 204-205.)

87



b. Evidence of Defendant’s Abuse of a Child

As previously noted, the prosecution presented evidence that defendant

injured the genitals of Richard O., the eight-month-old son of his then girlfriend,

which required that the child be hospitalized, and then denied he had done so,

saying he loved the child as if the child were his own, and was not a child abuser.

Defendant was convicted of misdemeanor battery as a result of this incident.

Defendant claims that it was error for the trial court to have admitted the

facts underlying the misdemeanor conviction. As he concedes, we have rejected

similar arguments that admission of violent conduct underlying a conviction

violates any federal constitutional right. “When dealing with violent conduct it is

not the fact of conviction which is probative in the penalty phase, but rather the

conduct of the defendant which gave rise to the offense. . . . [T]he convictions

here involved violent conduct and were thus admissible pursuant to subdivision (b)

of section 190.3, which permits the introduction of all evidence of violent crimes

and does not require a conviction.” (People v. Gates (1987) 43 Cal.3d 1168, 1203;

see People v. Monterroso (2004) 34 Cal.4th 743, 774 [rejecting claim that

evidence of circumstances underlying battery and vandalism convictions violated

double jeopardy prohibition].) We adhere to the conclusion of our prior cases.

Defendant claims that the prosecutor misstated his burden of proof with

respect to defendant’s prior conviction by informing the jury he had no burden to

prove defendant made the statements attributed to him. We have examined the

passage in the record cited by defendant and in it the prosecutor makes no such

statement; he simply argues that defendant lied when he told an investigator that

he had not injured the child. This statement was no more than a fair inference

from the evidence that defendant had been convicted of battery upon the infant.

Defendant also asserts that the trial court misstated the burden of proof in its

instructions, but the instruction the court gave — that the prosecution was required

88



to prove prior convictions beyond a reasonable doubt — was entirely correct.

Defendant neither objected to this instruction nor sought clarification.

c. Exclusion of Results of Defendant’s Polygraph Test

At trial, defendant filed a motion to declare unconstitutional Evidence Code

section 351.1, which generally bans the admission of polygraph test results in

criminal proceedings. Defendant argued that such test results should be “admitted

under the more permissive evidentiary standards of a penalty trial.” As a

preliminary matter, he stated his intention to call Edward I. Gelb, “a recognized

expert in the administration of polygraph examinations,” to testify that results

were acceptable for purposes of the penalty phase proceedings. The trial court

denied the motion and excluded the results.

On appeal, defendant argues that the court’s ruling violated various

constitutional rights including his right to due process and the right to present a

defense. He seeks to distinguish other capital appeals in which we have affirmed

the exclusion of polygraph results on the ground that, in those cases, an offer of

proof of the scientific reliability of the procedure had not been made whereas, in

this case, it was. (E.g., People v. Burgener (2003) 29 Cal.4th 833, 870-871;

People v. Koontz (2002) 27 Cal.4th 1041, 1090; People v. Ayala, supra, 23 Cal.4th

at p. 264; People v. Price (1991) 1 Cal.4th 324, 419.)

However, in People v. Wilkinson (2004) 33 Cal.4th 821, a case in which the

defendant had made an offer of proof regarding the reliability of polygraph

examinations, we nonetheless squarely held that the categorical exclusion of the

results of such examinations did not violate the federal Constitution. (Wilkinson,

at p. 850; see also People v. Maury (2003) 30 Cal.4th 342, 413-414 [exclusion of

polygraph evidence at guilt phase did not violate defendant’s constitutional right

to present a defense].)

89



As we observed in Wilkinson, a seven-member majority of the United

States Supreme Court in United States v. Scheffer (1998) 523 U.S. 303 upheld a

per se exclusion of polygraph evidence in the Military Rules of Evidence. (People

v. Wilkinson, supra, 33 Cal.4th at p. 849.) We observed “that in light of Scheffer,

‘[e]xcluding such evidence does not violate defendant’s constitutional right to

present a defense.’ [Citation.] Noting that ‘[i]mplicit in the Legislature’s passage

of Evidence Code section 351.1 is the conclusion that “[L]ie detector tests

themselves are not considered reliable enough to have probative value” . . . ,’ and

quoting Scheffer, we concluded that a ‘per se rule excluding polygraph evidence is

a “rational and proportional means of advancing the legitimate interest in barring

unreliable evidence.” [Citation.]’ [Citation.] [¶] We reach the same conclusion

here. Scheffer noted that ‘the scientific community remains extremely polarized

about the reliability of polygraph techniques.’. . . This disagreement in the

scientific community in turn has been reflected ‘in the disagreement among state

and federal courts concerning both the admissibility and the reliability of

polygraph evidence.’ [Citation.]” (Wilkinson, supra, at pp. 849-850.)

Defendant seeks to avoid the impact of Wilkinson because Wilkinson was

not a capital case. As he did in the trial court, defendant argues that laxer rules for

the admission of evidence apply at penalty phase proceedings. Not so. The death

penalty statute does not adopt any new rules of evidence peculiar to itself, but

simply allows the generally applicable rules of evidence to govern. Defendant

confuses the broader range of evidence deemed relevant at the penalty phase —

victim impact evidence, for example — with the technical rules of evidence that

remain in effect during those proceedings. One such rule is embodied in Evidence

Code section 351.1, and it has equal application to noncapital and capital trials and

to both the guilt and penalty phases of the latter. There is no less of an imperative

to prevent unreliable evidence from being admitted at the penalty phase than the

90



guilt phase of a capital trial. Accordingly, we reject defendant’s claim of error

with respect to exclusion of polygraph evidence.

4. Denial of Motion for Modification of the Death Verdict

Defendant contends the trial court was derelict in its duty under section

190.4, which provides for an automatic motion to modify the death verdict,

because the court “failed to follow the legal requirements” in denying the motion

and “minimized the mitigating factors or ignored them, while at the same time

exaggerating the aggravating factors and giving them undue weight.” These

claims are meritless.

Defendant argues that the trial court violated his rights by its “premature

decision to impose death” as evidenced by a tentative written ruling. Not so.

“The practice of formulating tentative rulings in advance of argument and

reducing those tentative rulings to writing is commonplace and unobjectionable.”

(People v. Medina, supra, 11 Cal.4th at p. 783.) The mere fact the trial court did

so is not evidence that it prejudged the motion or was impervious to defendant’s

arguments.

As to defendant’s second point, we have carefully examined the trial

court’s statement in connection with its denial of the motion. At the outset, the

trial court plainly stated the legal standard it was required to follow in ruling on

the motion, that is, an independent review of the motion taking into account

evidence of aggravation and mitigation. The trial court then proceeded to do so, at

some length. “Defendant disagrees in many ways with the court’s view of the

evidence — particularly the weight it gave his evidence in mitigation. But

defendant’s view of the evidence is not the only permissible one. Although the

court must consider all proffered mitigating evidence, as this court did, it need not

find that any particular evidence is in fact mitigating under the circumstances.”

91



(People v. Steele, supra, 27 Cal.4th at pp. 1267-1268.) Our review of the court’s

ruling leads us to conclude that it carefully and conscientiously performed its duty

under section 190.4.

5. Intercase

Proportionality

Defendant argues that California’s failure to conduct intercase

proportionality review of death sentences violates the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution. “ ‘Neither the federal

nor the state Constitution requires intercase proportionality review’ [citation] and

we have consistently rejected this argument. [Citations.]” (People v. Geier,

supra, 41 Cal.4th at p. 618.)

6. Claims of Instructional Error

a. CALJIC No. 8.87

Defendant maintains that CALJIC No. 8.87, given here, was flawed

because it told the jury that the uncharged crime of forcible oral copulation on

Michael M. involved the use of force or violence, or threat thereof, rather than

allowing the jury to decide whether force or violence were involved. He claims

that this amounted to a directed verdict on the issue. Not so. Forcible oral

copulation is, by definition, a crime involving the use of force or violence.

However, the jury could not consider it for purposes of aggravation unless and

until the prosecution proved beyond a reasonable doubt that defendant committed

the offense. (People v. Robertson (1982) 33 Cal.3d 21, 53-54.) Having so found,

it would necessarily have found the force or violence element.

b. CALJIC No. 8.85

Defendant contends that CALJIC No. 8.85, given here, was flawed because

it informed the jury that, in determining the sentence, it could consider whether the

offense was committed while defendant was under the influence of “extreme

92



mental or emotional disturbance.” Defendant argues that the modifier “extreme”

was an unconstitutional limitation. We have previously and repeatedly rejected

this claim. (People v. Brown, supra, 33 Cal.4th at p. 402; People v. Ghent, supra,

43 Cal.3d at p. 776.)

c. Defense Instruction on Mitigating Factors

Defendant contends the trial court erroneously denied his requested

instruction which set forth 11 “factors” the jury could consider in mitigation,

including for example, “Whether the defendant’s childhood psychological growth

and development affected his adult psychology and personality,” “Whether the

defendant suffers from a learning disability,” and “Whether the defendant’s

addiction to alcohol and drugs, and its effect upon his behavior, contributed to his

criminal conduct.” The trial court declined to submit this list to the jury because it

encroached upon the jury’s right to determine whether these were factors in

mitigation. Defense counsel responded by withdrawing the list in favor of

retaining the preamble to the list as follows: “Mitigating factors may include any

sympathetic, and compassionate, merciful or other aspect of the defendant’s

background, character, record, or social, psychological, or medical history that the

defendant offers as a basis for a sentence of less than death, whether or not the

factors are related to the offense for which he is on trial.” The trial court agreed to

give this instruction. Additionally, the trial court instructed the jury that the

mitigating factors the jury could consider were not limited to those listed but that it

“could consider any other circumstances relating to the case or to the defendant as

shown by the evidence as reasons for not imposing the death penalty.”

The proffered defense listing of mitigating factors was argumentative and

therefore not appropriate. (People v. Gordon (1990) 50 Cal.3d 1223, 1276.)

Thus, the trial court properly declined to give that part of the instruction.

93



d. Defense Substitute Instruction for CALJIC No. 8.85

The trial court gave CALJIC No. 8.85, the standard instruction regarding

the section 190.3 factors in mitigation and aggravation and declined to give an

alternative instruction submitted by defendant. On appeal, defendant contends this

was error because of deficiencies in the standard instruction, specifically, that the

instruction contains irrelevant factors which, nonetheless, might be used against

defendant by the jury. He also asserts that the court erred by not instructing the

jury that the absence of mitigation was not aggravation. As he concedes, we have

rejected these arguments in the past and do so again. (People v. Geier, supra, 41

Cal.4th at pp. 619-620; People v. Musselwhite (1998) 17 Cal.4th 1216, 1266-1269;

People v. Mitcham (1992) 1 Cal.4th 1027, 1074.)

e. Other Instructional Error Claims

Defendant contends the failure of the trial court to instruct on any burden of

proof with respect to the penalty phase violated his constitutional rights. We have

consistently rejected this claim and do so again here. (People v. Geier, supra, 41

Cal.4th at p. 618; People v. Brown, supra, 33 Cal.4th at p. 401 [“The death penalty

law is not unconstitutional for failing to impose a burden of proof — whether

beyond a reasonable doubt or by a preponderance of the evidence — as to the

existence of aggravating circumstances, the greater weight of aggravating

circumstances over mitigating circumstances, or the appropriateness of a death

sentence”].) We have considered and rejected defendant’s claim that the trial

court was required to instruct the jury on the presumption of a sentence of life

without possibility of parole. (People v. Arias, supra, 13 Cal.4th at p. 190.)

f. Cumulative Effect of Instructional Error

Defendant contends the cumulative effect of these instructional errors

requires reversal. “If none of the claimed errors were individual errors, they

94



cannot constitute cumulative error that somehow affected the penalty verdict.”

(People v. Beeler (1995) 9 Cal.4th 953, 994.)

7. Challenges to the Death Penalty Statute

Defendant contends the death penalty law is unconstitutional because it

does not require unanimous written findings by the jury regarding aggravating

factors. We have previously and consistently rejected this claim and do so again.

(People v. Geier, supra, 41 Cal.4th at p. 618; People v. Medina, supra, 11 Cal.4th

at p. 782.) We have also repeatedly considered and rejected the claims defendant

raises that (1) the death penalty statute is unconstitutional because it confers too

much discretion on individual prosecutors (People v. Crittenden (1994) 9 Cal.4th

83, 152); (2) fails to meaningfully narrow the class of death eligible offenders or is

otherwise overbroad (People v. Yeoman, supra, 31 Cal.4th at p. 165); (3) is

impermissibly vague (People v. Jenkins (2000) 22 Cal.4th 900, 1050-1053); or

(4) is unconstitutional on moral grounds. (People v. Turner (2004) 34 Cal.4th

406, 438).

8. International

Law

Defendant contends that violations of his constitutional rights also violate

international law. However, as the predicate for his claim — that his

constitutional rights were violated — is erroneous, so too, then, is the conclusion

he draws regarding international law. To the extent he challenges the death

penalty itself as violative of international norms, we again reject this claim as we

have done repeatedly and consistently in other cases. (People v. Panah, supra, 35

Cal.4th at pp. 500-501.)

9. Prosecution

Delay

Defendant contends the delay in processing his appeal violates various

constitutional provisions and international law. Not so. “One under judgment of

95



death does not suffer cruel and unusual punishment by the inherent delays in

resolving his appeal. If the appeal results in reversal of the death judgment, he has

suffered no conceivable prejudice, while, if the judgment is affirmed, the delay has

prolonged his life.” (People v. San Nicolas (2004) 34 Cal.4th 614, 677; see

People v. Panah, supra, 35 Cal.4th at p. 500.)

10. Missing Transcripts

Defendant contends his conviction must be reversed because the parties

were unable to reconstruct via a settled statement nine unreported bench

conferences and a proceeding at defendant’s first trial, apparently involving a

continuance. “[D]efendant bears the burden of demonstrating that the appellate

record is not adequate to permit meaningful appellate review. [Citation.] He has

not done so.” (People v. Arias, supra, 13 Cal.4th at p. 158.)

11. Cumulative Error

Defendant contends the cumulative effect of errors at both phases of his

trial requires reversal. Not so. (People v. Geier, supra, 41 Cal.4th at p. 620.)

12. Incorporation by Reference of Habeas Corpus Petition Claims

Defendant asks that we deem incorporated by reference any argument he

has raised in his petition for habeas corpus but which we may decide in reviewing

that petition should have been raised on appeal. We decline to do so. The rules of

court do not permit such incorporation. (See Soukup v. Law Offices of Herbert

Hafif (2007) 39 Cal.4th 260, 294, fn. 20.) Moreover, “habeas corpus cannot serve

as a substitute for an appeal, and, in the absence of special circumstances

constituting an excuse for failure to employ that remedy, the writ will not lie

where the claimed errors could have been, but were not, raised upon a timely

appeal from a judgment of conviction.” (In re Dixon (1953) 41 Cal.2d 756, 759.)

96



13. Restitution

As part of his sentence, the trial court imposed upon defendant a $10,000

restitution fine pursuant to Government Code section 13967 without, however,

making any findings regarding defendant’s ability to pay. Defendant points out

that, at the time he was sentenced, that section had recently been amended to

condition imposition of such a fine on a defendant’s ability to pay. (See People v.

Saelee (1995) 35 Cal.App.4th 27, 30-31.) That amendment itself was repealed in

1994, but the current statutory scheme in effect allows consideration of ability to

pay. (§ 1202.4.)23 Defendant contends he should have the benefit either of the

1992, amended statute or the current statutory scheme. In People v. Vieira, supra,

35 Cal.4th 264, faced with the same argument we concluded: “Defendant is not

entitled to benefit from the 1992 amendment; it was repealed in 1994. (Stats.

1994, ch. 1106, § 3, [p.] 6547.) . . . Here, the question of restitution should be

considered under the current version of Penal Code section 1202.4, which

provides detailed guidance to the trial court in setting a restitution fine, including

consideration of a defendant’s ability to pay.” (Id. at p. 305.) Therefore, we

remanded the case to the trial court “for reconsideration of the question of a

restitution fine under the currently applicable statute. If the People choose not to

contest the matter on remand, defendant’s restitution shall be reduced to the

statutory minimum.” (Id. at p. 306.) We shall follow that procedure here as well.

23 Government Code section 13967 was repealed in 2003. (Stats. 2003, ch. 230,
§ 2.)

97



DISPOSITION

The matter is remanded to the trial court for reconsideration of the question

of a restitution fine in the manner set forth above. In all other respects, the

judgment is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD,

J.

BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

CORRIGAN,

J.



98



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Richardson
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S029588
Date Filed: May 22, 2008
__________________________________________________________________________________

Court:
Superior
County: Tulare
Judge: William Silveira, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Richard Jay Moller and Karen Kelly, under appointments by the Supreme Court, for Defendant and
Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Eric L. Christoffersen, Lloyd G.
Carter and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard Jay Moller
So’Hum Law Center
P.O. Box 1669
Redway, CA 95560-1669
(707) 923-9199

Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1670


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 05/22/200843 Cal.4th 959 original opinion 44 Cal. 4th 385a modificationS029588Automatic Appealclosed; remittitur issued

RICHARDSON v. S.C. (PEOPLE) (S127275)
RICHARDSON (CHARLES KEITH) ON H.C. (S148523)


Parties
1The People (Respondent)
Represented by Attorney General - Fresno Office
Kathleen McKenna, Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA

2Richardson, Charles Keith (Appellant)
San Quentin State Prison
Represented by Karen A. Kelly
Attorney at Law
P.O. Box 6308
Modesto, CA

3Richardson, Charles Keith (Appellant)
San Quentin State Prison
Represented by Richard Jay Moller
Attorney at Law
P.O. Box 1669
Redway, CA


Disposition
May 22 2008Opinion: Affirmed

Dockets
Oct 7 1992Judgment of death
 
Nov 3 1992Filed certified copy of Judgment of Death Rendered
  10-7-92.
Jan 15 1997Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Richard J. Moller is hereby appointed as lead counsel, and Karen Kelly is appointed as associate counsel, to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
Jan 16 1997Compensation awarded counsel
 
Feb 14 1997Application for Extension of Time filed
  To request Record correction
Feb 19 1997Extension of Time application Granted
  To May 2,1997 To request Record correction
Apr 28 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 29 1997Extension of Time application Granted
  To Applt To 7-1-97 To request Corr. of Record.
Jun 24 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 26 1997Extension of Time application Granted
  To Applt To 9-2-97 To request Corr. of Record.
Aug 22 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Aug 25 1997Extension of Time application Granted
  To Applt To 11-3-97 To request Corr. of Record.
Oct 27 1997Application for Extension of Time filed
  By Applt to request Record correction
Oct 29 1997Extension of Time application Granted
  To January 2,1998 To request Record correction
Dec 29 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Dec 30 1997Extension of Time application Granted
  To March 3,1998 To request Record correction
Mar 2 1998Application for Extension of Time filed
  By Applt to request correction of Record.
Mar 6 1998Extension of Time application Granted
  To Applt To 5-4-98 To request Corr. of Record. no further Extensions of time Are Contemplated.
Apr 27 1998Received copy of appellant's record correction motion
  appellant's request to correct, augment, and settle the record, to examine sealed transcripts and sealed records (46 pp.)
Jul 13 1998Compensation awarded counsel
 
Aug 26 1998Compensation awarded counsel
 
Feb 19 1999Compensation awarded counsel
 
Sep 13 1999Compensation awarded counsel
 
Dec 14 1999Compensation awarded counsel
  Atty Moller
Jan 13 2000Compensation awarded counsel
  Atty Moller
Jan 24 2000Motion filed
  Applt's joint motion to withdraw as Atty of Record and be Reappointed as Independent Counsel for the direct Appeal and Habeas Corpus and Clemency.
Feb 16 2000Order filed:
  Good cause appearing, the application of appointed lead and associate counsel for permission to withdraw, respectively, as habeas corpus/executive clemency attorney of record and as appellate attorney of record for appellant Charles K. Richardson, filed 1-24-2000, is granted. The order appointing Richard Jay Moller as lead counsel of record for appellant Charles K. Richardson, filed 1-15-97, is hereby vacated with respect to the investigation and/or initiation of state habeas corpus/executive clemency proceedings related to appellant's capital appeal now pending before this court. Mr. Moller shall remain as lead counsel of record for appellant Richardson's capital appeal, and shall continue to be responsible for all appellate duties as specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, Pollicy 3, standards 1-1 and 2-1. The order appointing Karen Kelly as associate counsel of record for appellant Charles Keith Richardson, filed 1-15-97, is hereby vacated with respect to appellant's pending capital appeal. Ms. Kelly shall remain as counsel of record to represent appellant for the investigation and/or initiation of state habeas corpus/executive clemency proceedings related to the above capital appeal, and, as lead counsel, shall be responsible for all habeas corpus/executive clemency duties as specified in Supreme Court Polices Regarding Cases Arising from Judgments of Death, Policy 3, standards 1-1 and 2-1.
Mar 2 2000Compensation awarded counsel
  Atty Kelly
Mar 29 2000Compensation awarded counsel
  Atty Kelly
May 1 2000Compensation awarded counsel
  Atty Kelly
May 24 2000Compensation awarded counsel
  Atty Kelly
Aug 9 2000Compensation awarded counsel
  Atty Kelly
Aug 24 2000Counsel's status report received (confidential)
  from atty Karen Kelly.
Aug 29 2000Counsel's status report received (confidential)
  from atty Moller.
Oct 18 2000Compensation awarded counsel
  Atty Kelly
Oct 20 2000Counsel's status report received (confidential)
  from atty Moller.
Oct 27 2000Counsel's status report received (confidential)
  from atty Kelly.
Nov 17 2000Compensation awarded counsel
  Atty Kelly
Dec 15 2000Counsel's status report received (confidential)
  from atty Moller.
Jan 17 2001Compensation awarded counsel
  Atty Kelly
Jan 18 2001Counsel's status report received (confidential)
  from atty Kelly.
Feb 20 2001Counsel's status report received (confidential)
  from atty Moller.
Mar 15 2001Compensation awarded counsel
  Atty Kelly
Mar 19 2001Counsel's status report received (confidential)
  from atty Kelly.
Apr 5 2001Counsel's status report received (confidential)
  from atty Moller.
May 23 2001Compensation awarded counsel
  Atty Kelly
Jun 7 2001Counsel's status report received (confidential)
  from atty Kelly.
Jun 14 2001Counsel's status report received (confidential)
  from atty Moller.
Jun 14 2001Compensation awarded counsel
  Atty Kelly
Aug 16 2001Counsel's status report received (confidential)
  from atty Moller.
Aug 22 2001Compensation awarded counsel
  Atty Kelly
Oct 9 2001Counsel's status report received (confidential)
  from atty Kelly.
Oct 15 2001Counsel's status report received (confidential)
  from atty Kelly.
Oct 19 2001Counsel's status report received (confidential)
  from atty Moller.
Nov 13 2001Compensation awarded counsel
  Atty Kelly
Nov 19 2001Counsel's status report received (confidential)
  from atty Moller.
Dec 6 2001Note:
  The record on appeal was returned to Tulare County, on 12/5/2001, to correct the following: Prepare a master index for the RT (Rule 9 (d)); Submit the origianl certificate signed by the Judge, certifying the record to this court; prepare missing vols. 59 and 60 of the RT.
Dec 13 2001Counsel's status report received (confidential)
  from atty Moller.
Feb 13 2002Compensation awarded counsel
  Atty Kelly
Feb 13 2002Compensation awarded counsel
  Atty Kelly
Feb 19 2002Counsel's status report received (confidential)
  from atty Kelly.
Mar 22 2002Counsel's status report received (confidential)
  from atty Moller.
Apr 17 2002Compensation awarded counsel
  Atty Kelly
Apr 29 2002Counsel's status report received (confidential)
  from atty Moller.
May 7 2002Counsel's status report received (confidential)
  from atty Kelly.
Jul 9 2002Counsel's status report received (confidential)
  from atty Moller.
Jul 26 2002Counsel's status report received (confidential)
  from atty Kelly.
Aug 14 2002Compensation awarded counsel
  Atty Kelly
Sep 9 2002Counsel's status report received (confidential)
  from atty Moller.
Sep 19 2002Compensation awarded counsel
  Atty Moller
Sep 19 2002Compensation awarded counsel
  Atty Moller
Oct 4 2002Counsel's status report received (confidential)
  from atty Kelly.
Nov 12 2002Counsel's status report received (confidential)
  from atty Moller.
Dec 26 2002Counsel's status report received (confidential)
  from atty Moller.
Jan 9 2003Counsel's status report received (confidential)
  from atty Kelly.
Jan 24 2003Compensation awarded counsel
  Atty Moller
Jan 28 2003Record on appeal filed
  Clerk's transcript 53 volumes (13811 pp.) and reporter's transcript 179 volumes (17418 pp.), including material under seal. Clerk's transcript includes 5461 pp. of juror questionnaires.
Jan 28 2003Appellant's opening brief letter sent, due:
  March 10, 2003.
Feb 19 2003Compensation awarded counsel
  Atty Moller
Feb 21 2003Counsel's status report received (confidential)
  from atty Moller.
Feb 21 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Feb 26 2003Extension of time granted
  to 5/9/2003 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 28 2003Counsel's status report received (confidential)
  from atty Kelly.
Apr 9 2003Compensation awarded counsel
  Atty Kelly
Apr 25 2003Counsel's status report received (confidential)
  from atty Moller.
Apr 25 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Apr 30 2003Extension of time granted
  to 7/8/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jun 18 2003Counsel's status report received (confidential)
  from atty Kelly.
Jun 25 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Jun 25 2003Counsel's status report received (confidential)
  from atty Moller.
Jun 27 2003Extension of time granted
  to 9/8/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 26 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Aug 26 2003Counsel's status report received (confidential)
  from atty Moller.
Aug 28 2003Extension of time granted
  to 11-7-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Sep 12 2003Counsel's status report received (confidential)
  from atty Kelly.
Sep 22 2003Counsel's status report received (confidential)
  from atty Kelly.
Oct 24 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Oct 24 2003Counsel's status report received (confidential)
  from atty Moller.
Oct 28 2003Compensation awarded counsel
  Atty Kelly
Nov 4 2003Extension of time granted
  to 1/6/2004 to file appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based uponcounsel Richard Jay Moller's representation that he anticipates filing that brief by 6/30/2004.
Nov 12 2003Compensation awarded counsel
  Atty Kelly
Dec 1 2003Counsel's status report received (confidential)
  from atty Kelly.
Dec 3 2003Change of Address filed for:
  habeas corpus counsel Karen Kelly.
Dec 26 2003Counsel's status report received (confidential)
  from atty Moller.
Dec 26 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Dec 31 2003Extension of time granted
  to 3/8/2004. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by June 30, 2004
Jan 27 2004Counsel's status report received (confidential)
  from atty Kelly.
Feb 3 2004Compensation awarded counsel
  Atty Kelly
Feb 25 2004Request for extension of time filed
  to file appellant's opening brief. (7th request)
Feb 25 2004Counsel's status report received (confidential)
  from atty Moller.
Mar 1 2004Extension of time granted
  to 5/7/2004 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/30/2004.
Mar 3 2004Compensation awarded counsel
  Atty Kelly
Mar 24 2004Counsel's status report received (confidential)
  from atty Kelly.
Mar 24 2004Change of contact information filed for:
  attorney Karen Kelly.
Apr 26 2004Counsel's status report received (confidential)
  from atty Moller.
Apr 26 2004Request for extension of time filed
  to file appellant's opening brief. (8th request)
Apr 28 2004Extension of time granted
  to 6/30/2004 to file appellant's opening brief. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/30/2004. After that date, no further extension will be granted.
May 6 2004Compensation awarded counsel
  Atty Kelly
May 12 2004Compensation awarded counsel
  Atty Kelly
May 25 2004Application to file over-length brief filed
  by appellant to file opening brief. (175,561 word brief submitted under separate cover)
May 26 2004Order filed
  Appellant's application for leave to file opening brief in excess of word count limit is granted.
May 26 2004Appellant's opening brief filed
  (175,561 words - 622 pages)
Jun 7 2004Compensation awarded counsel
  Atty Moller
Jun 30 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Jul 2 2004Extension of time granted
  to 8/24/2004 to file respondent's brief.
Jul 7 2004Filed:
  Amended proof of service of request for extension of time to file respondent's brief.
Jul 12 2004Counsel's status report received (confidential)
  from atty Kelly.
Aug 5 2004Compensation awarded counsel
  Atty Kelly
Aug 17 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Aug 18 2004Compensation awarded counsel
  Atty Kelly
Aug 23 2004Note:
  related petition for writ of mandate/prohibition (related to motion for DNA testing) filed this date, no. S127275.
Aug 23 2004Filed:
  Appellant's application for permission to file supplemental brief. (1345 word brief submitted under separate cover)
Aug 25 2004Order filed
  Appellant's application for permissin to file supplemental brief is granted.
Aug 25 2004Filed:
  Appellant's supplemental brief. (1345 words - 5 pp.)
Aug 25 2004Extension of time granted
  to 10/25/2004 to file respondent's brief. After that date, only four further extensions totaling about 270 additional days will be granted. Extension is granted based upon Deputy Attorney General Kathleen A. McKenna's representation that she anticipates filing that brief by 5/25/2005.
Sep 7 2004Supplemental record/transcript filed
  Reporter's transcript, dated 8/6/2004, re motion for DNA testing. (6 pp.)
Oct 15 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
Oct 19 2004Extension of time granted
  to 12/22/2004 to file respondent's brief. After that date, only three further extensions totaling about 210 additional days will be granted. Extension is granted based upon Deputy Attorney General Kathleen A. McKenna's representation that she anticipates filing that brief by 5/25/2005.
Oct 21 2004Counsel's status report received (confidential)
  from atty Kelly.
Nov 22 2004Habeas funds request filed (confidential)
 
Dec 15 2004Order filed re habeas funds request (confidential)
 
Dec 20 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Dec 22 2004Extension of time granted
  to 2/22/2005 to file respondent's brief. After that date, only two further extensions totaling about 150 additional days will be granted. Extension is granted based upon Deputy Attorney General Kathleen A. McKenna's representation that she anticipates filing that brief by 5/25/2005.
Feb 9 2005Counsel's status report received (confidential)
  from atty Kelly.
Feb 15 2005Request for extension of time filed
  to file respondent's brief. (5th request)
Feb 16 2005Compensation awarded counsel
  Atty Kelly
Feb 22 2005Extension of time granted
  to 4/25/2005 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is graned based upon Deputy Attorney General Kathleen A. McKenna's representation that she anticipates filing that brief by 5/25/2005.
Feb 23 2005Compensation awarded counsel
  Atty Kelly
Mar 16 2005Note:
  CHARLES KEITH RICHARDSON v. S.C. TULARE COUNTY, THE PEOPLE - S127275 consolidated with this case pursuant to order filed this date. Return to order to show cause due 4/15/2005.
Apr 5 2005Request for extension of time filed
  to file return to order to show cause. (1st request)
Apr 15 2005Extension of time granted
  to 5/16/2005 to file the return to the order to show cause. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Kathleen A. McKenna's epresentation that she anticipates filing that brief by 5/15/2005.
Apr 20 2005Request for extension of time filed
  to file respondent's brief. (6th request)
Apr 25 2005Counsel's status report received (confidential)
  from atty Kelly.
Apr 25 2005Extension of time granted
  to 5/25/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Kathleen A. McKenna's representation that she anticipates filing that brief by 5/25/2005. After that date, no further extension will be granted.
May 4 2005Compensation awarded counsel
  Atty Kelly
May 16 2005Written return filed
  to OSC (Richardson v. Superior Court, S127275). (33 pp.)
May 18 2005Compensation awarded counsel
  Atty Kelly
May 25 2005Respondent's brief filed
  (77268 words; 287 pp.)
Jun 2 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Jun 2 2005Reply to return filed
  by attorney Richard Jay Moller (Richardson v. Superior Court, S127275). (18 pp.)
Jun 8 2005Extension of time granted
  to 8/12/2005 to file appellant's reply brief.
Jun 24 2005Counsel's status report received (confidential)
  from atty Kelly.
Jul 13 2005Compensation awarded counsel
  Atty Moller
Jul 25 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jul 25 2005Counsel's status report received (confidential)
  from atty Moller.
Jul 26 2005Extension of time granted
  to 10/11/2005 to file appellant's reply brief. After that date, only four further extensions totaling about 210 additional days are contemplated. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/2006.
Aug 17 2005Compensation awarded counsel
  Atty Kelly
Sep 20 2005Counsel's status report received (confidential)
  from atty Kelly.
Sep 23 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Sep 23 2005Counsel's status report received (confidential)
  from atty Moller.
Sep 29 2005Extension of time granted
  to 12/9/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/2006.
Nov 28 2005Request for extension of time filed
  to file reply brief. (4th request)
Nov 28 2005Counsel's status report received (confidential)
  from atty Moller.
Dec 1 2005Extension of time granted
  to 2/7/2006 to file the reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Richard Moller's representation that he anticipates filing that brief by June 2006.
Dec 16 2005Counsel's status report received (confidential)
  from atty Kelly.
Jan 18 2006Compensation awarded counsel
  Atty Kelly
Feb 3 2006Request for extension of time filed
  to file appellant's reply brief. (5th request)
Feb 3 2006Counsel's status report received (confidential)
  from atty Moller.
Feb 7 2006Extension of time granted
  to 4/10/2006 to file the appellant's reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by June 2006.
Mar 27 2006Counsel's status report received (confidential)
  from atty Moller.
Mar 27 2006Request for extension of time filed
  to file appellant's reply brief. (6th request)
Mar 28 2006Extension of time granted
  to June 9, 2006 to file appellant's opening brief. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by June 9, 2006. After that date, no further extension will be granted.
May 30 2006Counsel's status report received (confidential)
  from atty Kelly.
Jun 8 2006Appellant's reply brief filed
  (46,461 words; 169 pp.)
Jun 21 2006Compensation awarded counsel
  Atty Moller
Jul 28 2006Counsel's status report received (confidential)
  from atty Kelly.
Oct 16 2006Counsel's status report received (confidential)
  from atty Kelly.
Dec 5 2006Related habeas corpus petition filed (concurrent)
  S148523.
Dec 20 2006Compensation awarded counsel
  Atty Kelly
Jan 2 2007Motion for access to sealed record filed
  respondent's "Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (D)."
Jan 12 2007Filed:
  petitioner's response to respondent's request for sealed records.
Feb 28 2007Motion denied
  Respondent's "Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (d)," filed on December 27, 2006, is denied because the record on appeal does not contain any such records.
Mar 22 2007Filed:
  additional record on appeal, clerk's transcript 5 volumes (978 pp.)
Mar 22 2007Letter sent to:
  counsel advising additional record on appeal filed this date.
Mar 26 2007Motion for access to sealed record filed
  by respondent.
Apr 25 2007Motion for access to sealed record granted
  Respondent's "Renewed Request for Sealed Records Pursuant to Penal Code Section 987.9, Subdivision (d)," filed on March 26, 2007, is granted. The Clerk of this court is directed to provide respondent with copies of the two volumes of sealed section 987.9 materials, pages 1 through 322, filed in this court on March 22, 2007. Except as provided herein, these documents must remain under seal and their use must be limited solely to the pending proceeding. (Pen. Code Section 987.9, subd. (d); see also Cal. Rules of Court, rule 8.160(g).)
May 24 2007Compensation awarded counsel
  Atty Kelly
Jun 13 2007Compensation awarded counsel
  Atty Kelly
Aug 24 2007Received:
  copies of (missing) pp. 4851-4865 of volume 41 of the reporter's transcript of defendant's second trial, from attorney Moller.
Aug 27 2007Note:
  copies of pp. 4851-4865 of volume 41 of the reporter's transcript sent to attorney Karen Kelly and Deputy AG McKenna this date.
Aug 29 2007Exhibit(s) lodged
  People's exhibits, nos. 17 and 19.
Sep 26 2007Habeas funds request filed (confidential)
 
Sep 26 2007Compensation awarded counsel
  Atty Kelly
Oct 18 2007Compensation awarded counsel
  Atty Kelly
Nov 14 2007Previously consolidated cases ordered severed
  Review in Richardson v. Superior Court (People), S127275, is severed from review in People v. Charles Keith Richardson, S029588. The Clerk of the Court is directed to reopen case number S127275 for determination of the cause by this court.
Dec 27 2007Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the February 2008 calendar, to be held the week of February 4, 2008, in Sacramento. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 6 2008Case ordered on calendar
  to be argued Thursday, March 6, 2008, at 1:30 p.m., in San Francisco
Feb 19 2008Filed:
  appellant's focus issues letter, dated February 13, 2008.
Feb 19 2008Received:
  appellant's letter of additional authorities, dated February 13, 2008.
Feb 27 2008Received:
  appearance sheet from R. Jay Moller, indicating 45 minutes for oral argument for appellant.
Mar 6 2008Cause argued and submitted
 
Mar 12 2008Order filed re habeas funds request (confidential)
 
Mar 20 2008Compensation awarded counsel
  Atty Kelly
Mar 20 2008Compensation awarded counsel
  Atty Moller
Apr 9 2008Compensation awarded counsel
  Atty Kelly
May 21 2008Notice of forthcoming opinion posted
 
May 22 2008Opinion filed: Judgment affirmed in full
  The matter is remanded to the trial court for reconsideration of the question of the restitution fine. In all other respects, the judgment is affirmed. opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ.
Jun 13 2008Rehearing petition filed
  by appellant (726 words; 4 pp.) (note: envelope indicates petition was mailed via priority mail June 6, 2008 and remailed on June 11, 2008. Petition was received at the court this date.)
Jun 18 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 20, 2008, or the date upon which rehearing is either granted or denied., whichever occurs first.
Jun 18 2008Compensation awarded counsel
  Atty Kelly
Jun 25 2008Compensation awarded counsel
  Atty Kelly
Jul 16 2008Rehearing denied
  The opinion is modified on the court's own motion. The petition for rehearing is denied.
Jul 16 2008Opinion modified - no change in judgment
 
Jul 16 2008Remittitur issued (AA)
 
Jul 17 2008Exhibit(s) returned
  to superior court.
Jul 24 2008Received:
  acknowledgment of receipt of exhibits from superior court.
Jul 25 2008Received:
  acknowledgment of receipt of remittitur from the superior court.
Oct 1 2008Compensation awarded counsel
  Atty Moller
Oct 16 2008Compensation awarded counsel
  Atty Kelly
Nov 17 2008Received:
  letter from U.S.S.C, dated November 13, 2008, advising that a petition for writ of certiorari was filed on October 6, 2008, and placed on its docket November 13, 2008 as No. 08-7202.
Nov 20 2008Compensation awarded counsel
  Atty Kelly
Feb 23 2009Certiorari denied by U.S. Supreme Court
 
Apr 20 2009Counsel fee request received
  Atty Kelly
Jun 10 2009Compensation awarded counsel
  Atty Kelly
Oct 29 2009Compensation awarded counsel
  Atty Kelly

Briefs
May 26 2004Appellant's opening brief filed
 
May 16 2005Written return filed
 
May 25 2005Respondent's brief filed
 
Jun 2 2005Reply to return filed
 
Jun 8 2006Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website