Filed 3/21/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S028970
v.
Los Angeles County
RICHARD STITELY,
Super. Ct. No. PA002330
Defendant and Appellant.
A jury convicted Richard Stitely (defendant) of the first degree murder of
Carol Unger. (Pen. Code, § 187, subd. (a).)1 A related special circumstance of
murder during the commission of unlawful sodomy was found true. (§ 190.2,
subd. (a)(17)(D).) The jury also convicted defendant of the separate crime of
forcible rape against Valery C. (§ 261, subd. (a)(2).)
After a penalty trial, the jury returned a death verdict. The trial court
declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to
death for the sodomy murder. The court also imposed and stayed a determinate
term on the noncapital rape count. This appeal is automatic. (Cal. Const., art. VI,
§ 11, subd. (a); § 1239, subd. (b).)
1
All unlabeled statutory references are to the Penal Code.
1
We find no prejudicial error at defendant’s trial. The judgment will be
affirmed in its entirety.
I. GUILT PHASE EVIDENCE
A. Murder of Carol Unger and Related Sex Crimes
1. Carol’s Disappearance
Carol Unger and her husband, Delbert, frequented the White Oak Inn, a bar
located near their home.2 They went there both together and separately. The
couple had one child, Joey, during their marriage. Carol had other children from a
prior relationship, including her son Billy.
At 8:30 p.m. on January 19, 1990, Billy called Delbert, who was alone at
the White Oak Inn. Delbert left the bar, and went to a restaurant with Billy. They
came home at 11:00 p.m. Joey was there, but Carol was gone. Delbert stayed
awake until 1:00 a.m. He heard nothing strange outside the house, which was well
lit in front by a streetlight.
Meanwhile, beginning at 9:30 the same night, several witnesses saw Carol
at the White Oak Inn.3 Defendant, a semi-regular patron, was there too. Carol sat
at the bar, and defendant sat at a table. According to both the bartender, Anthony
Russo, and the waitress, Hazel Parrott, Carol and defendant each drank two or
three beers. Neither seemed intoxicated.
Another regular patron, Shirley Cooper, saw Carol ask two or three men,
including defendant, to dance with her. Carol often danced with men who
frequented the bar, even when her husband was present. After one dance,
2
All events mentioned at the guilt phase occurred in the San Fernando
Valley area of Los Angeles County.
3
Delbert testified that Carol routinely traveled to the bar by taxi and carried a
large wallet or small clutch purse.
2
defendant returned to his table and Carol sat on a bar stool. Cooper then saw
defendant looking or staring at Carol.
Carol eventually asked the bartender, Russo, to call a taxi because she
wanted “to go home.” Defendant intervened by offering her a ride and asking
where she lived. She accepted the offer, and canceled her cab request. At some
point, Carol asked Russo whether he knew defendant well. Russo said “no,” but
saw no reason to decline the ride. By all accounts, Carol and defendant left the bar
together around midnight. This was the last time she was seen alive.
When Carol failed to return home, Delbert called and visited the White Oak
Inn. He also reported her missing to police.
2. Discovery of Carol’s Body
Around 11:00 a.m. on January 20, 1990, the day after Carol left the bar
with defendant, Edward Berg found her body in an alley behind his workplace. It
was lying partially underneath the corner of Berg’s company van. He called the
police. The police found no purse or wallet. They identified Carol through
Delbert’s report.
Detective John Coffey and a coroner’s investigator, Debrah Kitchings,
described the scene, as follows: Carol was lying on her back with her legs spread
apart, naked from the waist down. Her jeans and underpants were gathered around
one ankle, her shirt was bunched at the breast line, and her jacket was resting
underneath the hip area. Carol’s numerous injuries included scrape marks on the
back and choke marks on the neck. Pieces of foam rubber were found on her neck
and head, in her underwear, and on the ground. It appeared Carol had been
sexually assaulted, dragged into the alley, and dumped under the van.
3. Medical Testimony about Carol’s Injuries
Dr. Joseph Cogan, who performed the autopsy, testified that Carol was
strangled to death based on the following premortem injuries: Blood congestion
3
and petechial hemorrhages in the jaw and face showed that pressure had been
applied to the neck, and that circulation had stopped to the head, for a “long” time.
Internal hemorrhaging from blunt force trauma appeared on both sides of the neck
and around the eyes and ears. Carol’s thyroid cartilage, or Adam’s apple, was
fractured — an injury consistent with manual strangulation. However, the
fracturing of the cricoid cartilage, which sits deeper in the neck, required greater
pressure from a choke-hold maneuver. Dr. Cogan also linked certain marks on the
front of Carol’s neck to a ligature pulled from behind.
Regarding nonlethal injuries, Dr. Cogan testified that two cuts on Carol’s
left hand were caused by a sharp instrument, and were consistent with defensive
knife wounds. He also described abrasions and bruises on the extremities, two
round marks or burns on the head, and bruising on the scalp. The skin on Carol’s
back had been scraped or dragged on a hard surface both before and after death.
Dr. Cogan found multiple signs of sexual activity. There were two tears in
the anal opening, as well as tears, contusions, and hemorrhaging inside the anal
cavity. The anal injuries were inflicted before death, were caused by blunt force
trauma, and were consistent with penile penetration. Dr. Cogan found no vaginal
tears. Because the vaginal opening was “marital,” the lack of tearing was not
inconsistent with forcible penetration. Some darkening or reddening of the labia
could have been a contusion.
Investigator Kitchings testified that she saw “trauma” in Carol’s vaginal
and anal areas at the crime scene. Kitchings also estimated the time of death by
comparing air and liver temperatures at 3:30 p.m. on January 20, 1990, a few
hours after Carol was found. She had most likely been dead for 15 hours (i.e.,
since 12:30 a.m. on January 20, 1990). However, she could have died anywhere
from 12 to 20 hours earlier (i.e., between 7:30 p.m. on January 19, 1990 and 3:30
a.m. on January 20, 1990).
4
The evidence included an autopsy report and attached toxicology report.
The parties stipulated that Carol’s toxicology tests revealed a .26 percent blood-
alcohol content, a result indicating intoxication.
4. Physical Evidence and Forensic Tests
As discussed below, the police found torn seat cushions and foam debris
during a search of defendant’s car. Criminalist Susan Johnson testified that there
was no difference in color, chemical composition, or cellular structure between the
foam found on Carol’s body and the foam seized from defendant’s car. The origin
could have been the same.
Criminalist Lloyd Mahanay made cotton swabs and microscope slides of
the fluids in Carol’s vagina and anus. Though he did not personally conduct such
tests, he opined that any sperm found on these items would reflect ejaculation into
each orifice. Mahanay ruled out the possibility that semen from the vagina could
have contaminated the anal swab, or that ejaculation on or in the vagina could
have leaked into the anus.
Serologist Alison Ochiae testified that Carol had type O blood, and that
defendant was a type A secretor. A secretor is one whose blood type appears in
other bodily fluids. Ochiae found sperm on the vaginal swabs and anal slides that
Criminalist Mahanay had prepared. Using the ABO method, Ochiae identified
defendant as a possible sperm donor. She also linked him to a stain on Carol’s
jacket.
The parties stipulated that Criminalist Mark Taylor performed DNA tests
that could conclusively match the genetic materials in semen with the genetic
materials in blood. The DNA pattern found on Carol’s vaginal and anal swabs
matched the DNA pattern obtained from defendant.
5. Defendant’s Statements to Police
Based on information obtained at the White Oak Inn and other bars,
5
detectives learned that defendant worked at a radiator repair shop. On February 2,
1990, Detective Coffey and his partner visited defendant at work. He agreed to
accompany them to the police station. When Detective Coffey peered inside
defendant’s station wagon, he saw torn seats and foam debris similar to the foam
found on Carol’s body. Police impounded the car. They later searched it with
defendant’s consent.
Defendant received and waived his constitutional rights during the ride to
the police station. Detective Coffey questioned defendant at the station, assisted
by Detective Medina. Coffey recorded the interview without defendant’s
knowledge. The jury heard the interview, and received the transcript.
Defendant first told detectives that he last visited the White Oak Inn on
January 26, 1990, and had not been there in the preceding two months. Though he
often went to bars on Friday nights, defendant recalled staying home on Friday,
January 19, 1990, to save money. He denied knowing Carol. Detective Coffey
asked about Valery C., a teenager who stayed with defendant and his daughter.
Defendant said that Valery had falsely accused him of rape because he told her to
pay rent or move.
Detective Coffey said that witnesses saw Carol leave the bar with defendant
on January 19, 1990. Defendant then admitted that he drove her home. He
recalled seeing both a red van and a shadowy figure outside her house.4
Supposedly, as Carol left the car, she took a steak knife from her purse. Though
defendant was scared, Carol did not threaten him with the knife, and instead
4
According to Carol’s husband, Delbert, a burgundy truck and green car
were parked in the driveway the night Carol died. Neither his family nor any of
their immediate neighbors owned a red van.
6
mentioned her “old man.”5 Defendant claimed he sped away, and that nothing
sexual or violent happened. He initially lied because he did not want to upset
Carol’s husband.
Detective Coffey theorized that Carol died during a fight with defendant.
Defendant said he might “stop talking,” and Coffey reaffirmed his right to do so.
Nevertheless, defendant continued to assert his innocence, saying, “The only thing
you can prove is I took her out of that bar, man.” Defendant denied any fight. He
repeated that Carol “didn’t threaten” him with the knife or otherwise seem
interested in “using” it on him.6
Detective Coffey remarked that debris in Carol’s hair looked like debris in
defendant’s car. Defendant then conceded a struggle, giving the following
account: When they got to her house, Carol — who was “drunker than hell” —
asked to visit another bar. Defendant refused because he needed to go home.
Defendant saw someone exit the house, and watched Carol draw the knife from
her purse. She exited and reentered the car. He sped away at her request. Carol
again asked to go to another bar. Defendant stopped the car. Scared and unsure of
her intent, he squeezed her hand to expel the knife. She tried to bite him, and he
grabbed her hair. Carol opened the door. Defendant kicked her in the face,
ejecting her from the car. He did not strangle or kill her.
5
Delbert never saw a knife in Carol’s possession at the bar or heard her talk
about carrying one. Other witnesses gave similar testimony, namely, Russo, the
bartender, and Cooper, a regular bar patron. Investigators found no knife in
defendant’s car or near Carol’s body.
6
At this point in the interview on February 2, 1990, defendant signed a form
authorizing a search of his home and car. A short time later, however, he revealed
that he could not read or write. Detective Coffey then read the consent form to
defendant. He said he understood and agreed with it. Defendant’s car was
searched, and the contents were seized, on February 5, 1990.
7
Detective Coffey told defendant he intended to test bodily fluids found at
the crime scene. Defendant then admitted having vaginal intercourse with Carol
in his car. Coffey asked whether the act was “mutual,” and defendant said,
“yeah.” He reportedly initiated the sexual encounter, and Carol mentioned the
lack of intimacy in her marriage. Defendant said he had previously withheld this
information because another “bitch,” Valery C., had falsely accused him of rape.
Defendant adamantly denied having anal sex with Carol.
Regarding Carol’s injuries, defendant acknowledged that he could have
unintentionally “caused her death.” However, he consistently maintained that he
kicked her only once — possibly hitting her neck, chest, and shoulder — and that
he never strangled or punched her.
Finally, at Detective Medina’s request, defendant clarified that the sex act
occurred after they left Carol’s house, while the knife was out of sight. They
subsequently fought because Carol — though drunk and “out of it” — wanted to
go to another bar, and he wanted to go home. In this final account, Carol held the
knife down by her side when defendant kicked her from the car. She said she
wanted to “hurt somebody.” However, she did not assault, threaten, or injure him
with the knife. Defendant claimed Carol was alive and clothed when he left her at
a spot different from where her body was found.7
B. Rape of Valery C.
The main witness on the noncapital rape count was the victim, Valery C.
Valery testified that in June 1989, she was 16 years old, and five and one-half
7
Two days later, on February 4, 1990, defendant contacted police from his
jail cell. When Detective Coffey alluded to their prior conversation, defendant
again denied raping or strangling Carol, or touching Valery C.
8
months pregnant. She had been evicted from her own apartment, and did not live
with her mother because they did not get along. Valery therefore accepted an
invitation from defendant’s daughter, S., to live with defendant and S. According
to Valery, defendant never told her to pay household expenses or to move out. He
slept on the couch, and the girls shared the lone bedroom.
Valery testified that on June 28, 1989, she returned to the apartment at 11:00
p.m. Defendant was in the front room. S. was gone. Valery entered the bedroom,
and closed the door. She put on a long button-down shirt and underwear, and got
into bed. This was the first time she and defendant were alone together.
According to Valery, the following events occurred: Defendant entered the
bedroom and shut the door. He climbed on top of Valery, who was underneath the
blankets. Scared and confused, she started to scream. Defendant grabbed her
throat with one hand and threatened to kill her if she did not keep quiet.
Defendant choked her for at least 20 seconds, causing her to cough when he
finally released his grip.
Valery continued: Defendant pinned Valery’s arm over her shoulder.
Saying she could not live there for free, defendant moved the blankets and
unbuttoned her shirt. He kissed her breasts, and placed his fingers into her vagina.
Defendant then lowered her underpants, unzipped his trousers, and penetrated her
vagina. Defendant ignored Valery’s plea to stop because of her unborn baby.
Instead, he withdrew his penis, placed Valery on her side, and then resumed
intercourse. After ejaculating, defendant left the room. He did not smell like
alcohol or seem intoxicated.
Valery buttoned her shirt and cleaned herself in the bathroom. When she
entered the living room, defendant apologized and said she could call the police.
She put on a pair of pants, and ran to meet her boyfriend in the park. Crying and
shaking, she told him what happened.
9
Almost immediately, at 11:45 p.m., Valery’s boyfriend called the police.
As reflected by the 911 recording admitted at trial, both Valery and her boyfriend
told the dispatcher about the rape. Valery testified that she also called her mother.
Valery continued her account: Valery and her mother promptly went to the
police station and reported the rape to a female officer. Later, at the hospital,
Valery declined an examination because no female doctor was available. The next
day, Valery discarded the button-down shirt because it repulsed her. She retrieved
her belongings from defendant’s apartment, and never returned to live there.
The investigating officer, Angela Hougen, testified that she saw no bruises
on Valery C. However, Valery was distraught at the police station, and became
more upset at the hospital while waiting for an exam.
C. Defense
Defendant presented no evidence at the guilt phase.
II. PENALTY PHASE EVIDENCE
A. Prosecution Case
1. Other Violent Crimes
The evidence showed that defendant, who was 41 years old at the time of
the capital crime, committed prior violent crimes against his ex-wife and their two
daughters. Specifically, M., who was 20 years old at the time of trial, testified that
defendant adopted her as a child while married to her mother, Deborah.
According to M., defendant sodomized her in the family’s Texas home for three
and one-half years, starting when she was five years old. During this period,
defendant also sodomized his biological daughter S., who is two years younger
than M. The acts usually happened on Saturdays when Deborah ran errands with
her and defendant’s youngest child, R.
M. described a typical sexual encounter with her father as follows:
defendant told M. to undress in the bathroom, and to rub Vaseline in her anal area.
10
She complied out of fear. While M. either leaned on the toilet or lay on the floor,
defendant placed his penis in her anus. Defendant ignored M.’s pleas to stop even
though she bled and expressed pain. Afterwards, defendant told M. to clean
herself and to bring her younger sister, S., into the bathroom. M. then saw
defendant sodomize S., and heard S. scream. Defendant threatened to kill both the
girls and their mother if the sex acts were disclosed. He smelled like liquor, but
was not always drunk, when these acts occurred.
M. testified that in 1981, at age eight, she disclosed these acts first to the
babysitter and then to Deborah (the mother of M. and S.) M. also signed an
affidavit in Texas concerning the matter.
Deborah testified that she and defendant married in 1973, and divorced 10
years later. According to Deborah, defendant abused alcohol, and the pair often
fought. At different times, defendant assaulted Deborah by (1) pointing a gun at
her head and threatening to shoot her, (2) wielding a knife and threatening to stab
her, (3) grabbing scissors and lunging at her, and (4) striking her with a makeup
mirror and cutting her head. Each act occurred in front of the children.
Deborah testified that, while awaiting trial, defendant said, “[I]f they find
M., she’ll hang me.” Despite some initial doubts, Deborah believed defendant had
molested their daughters. She also described him as both smart and a good
provider. No one, including defendant, deserved execution in Deborah’s view.
2. Victim Impact Evidence
Delbert Unger described Carol as “his whole life.” He identified a
photograph of them together, which was admitted into evidence.
The pathologist, Dr. Cogan, testified that Carol was probably strangled for
several minutes or more before she died, and that she likely experienced both
cardiovascular and emotional distress. It took great force to break both neck
cartilages — trauma that would cause pain in a live person. Dr. Cogan explained
11
that a lit cigarette could have made the round marks or burns on Carol’s head, and
that most of the nonfatal injuries occurred while she was alive and susceptible to
pain.
B. Defense Case
1. Character Evidence
Three associates in the radiator repair business testified on defendant’s
behalf: (1) Wyatt Crawford, whose family employed defendant for 15 years in
Texas, (2) Richard Donohue, who employed defendant in California before the
capital crime, and (3) Eugene Pace, who employed defendant in California at the
time of the crime. These witnesses agreed that defendant was competent,
courteous, and reliable. His illiteracy did not affect his work. Defendant never
came to work impaired by alcohol. The parties stipulated that he quit the first
California job because others drank alcohol at work. When defendant was
arrested in Texas, his employer, the Crawford family, posted his bail.
2. Lack of Criminal Record
The parties stipulated that defendant had no prior felony or misdemeanor
convictions. Another stipulation addressed the acts of sodomy reported to police
in 1981 and described by M. at trial. A Texas grand jury considered the matter
shortly after it was reported and declined to proceed against defendant. The case
could have been refiled.
3. Good Conduct in Custody
Deputy Sheriff Rust testified that defendant behaved well in jail during the
capital trial. The parties stipulated that inmates imprisoned for life without the
possibility of parole (LWOP) receive the highest security available outside of
Death Row. If defendant remained discipline-free, he could teach auto repair and
earn privileges in prison.
12
III. PRETRIAL ISSUES
A. Severance
Defendant claims the trial court erred in denying his motion to sever the
special circumstance murder of Carol from the forcible rape of Valery C. He
argues here, as below, that the prosecution improperly joined the two counts in
order to bolster weak circumstantial evidence that defendant murdered Carol in the
course of a sexual assault. A federal due process violation allegedly occurred. We
disagree.8
The trial court properly found that both offenses belonged to “the same
[assaultive] class.” (§ 954.) Joinder therefore was statutorily allowed. (Ibid.;
People v. Arias (1996) 13 Cal.4th 92, 126.) Defendant has never disputed this
threshold point.
Thus, defendant must show that a substantial danger of prejudice compelled
severance. (People v. Catlin (2001) 26 Cal.4th 81, 110.) We ask whether the
denial of severance was an abuse of discretion given the record before the trial
court. (People v. Davis (1995) 10 Cal.4th 463, 508.) A pretrial ruling that was
correct when made can be reversed on appeal only if joinder was so grossly unfair
8
As will become clear, this claim fails, in part, because of how the case was
pled and tried. As noted, a sodomy-murder special circumstance accompanied the
alleged murder. (§ 190.2, subd. (a)(17)(D).) The prosecution moved to amend the
information to allege a rape-murder special circumstance (id., subd. (a)(17)(C)),
but the trial court denied the motion as untimely. Hence, sodomy murder was the
sole special circumstance alleged and tried here. At trial, the prosecution sought a
first degree murder conviction on two theories: felony-murder in the commission
of rape, and premeditated murder. Sodomy could not be used to prove first degree
felony murder when the capital crime occurred. (See § 189, as amended by Prop.
115, approved by voters, Primary Elec. (June 5, 1990); People v. Hart (1999) 20
Cal.4th 546, 580, fn. 2; Tapia v. Superior Court (1991) 53 Cal.3d 282, 297-299.)
Hence, rape murder was the sole felony-murder theory of first degree murder.
13
as to deny due process. (People v. Arias, supra, 13 Cal.4th 92, 127; People v.
Johnson (1988) 47 Cal.3d 576, 590.)
Cross-admissibility is the crucial factor affecting prejudice. (People v.
Valdez (2004) 32 Cal.4th 73, 120.) If evidence of one crime would be admissible
in a separate trial of the other crime, prejudice is usually dispelled. (People v.
Bradford (1997) 15 Cal.4th 1229, 1315-1316.)
Invoking the law applicable at the time of his trial, defendant argues that
prior sex crimes may be used only for a relevant nondispositional purpose, like
identity (Evid. Code, § 1101, subd. (b)), and that the two joined counts are not
sufficiently “distinctive” to show that the same person who raped Valery C. also
attacked Carol. (People v. Ewoldt (1994) 7 Cal.4th 380, 403; but see Evid. Code,
§ 1108, subd. (a) [new posttrial statute providing that, in sex crime prosecutions,
§ 1101 does not bar defendant’s other sex crimes if such evidence is not barred
under § 352]; People v. Falsetta (1999) 21 Cal.4th 903, 911-912.) However, the
degree of similarity required to prove mental state is far less exacting. The two
acts need only be sufficiently similar to suggest that the defendant probably had
the same intent each time. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
While the trial court avoided the issue, evidence at both the preliminary
hearing and trial that defendant choked and raped Valery C. suggested that he
acted with similar criminal intent while having sexual intercourse with Carol — a
victim who was also choked. (See People v. Carpenter (1997) 15 Cal.4th 312,
379 [not guilty plea disputes all elements of charged crime, including intent].)
Indeed, jurors could not convict defendant of first degree murder on a felony-
murder-rape theory unless they found “specific intent to commit rape” beyond a
reasonable doubt. (People v. Haley (2004) 34 Cal.4th 283, 314.) The chance that
defendant acted with innocent intent with Carol is sharply reduced by evidence
14
that he committed a forcible, nonconsensual sex act upon Valery C. a few months
earlier. (People v. Carpenter, supra, 15 Cal.4th at p. 379.)
Also, as the prosecutor stated in closing argument, the jury could
reasonably infer from Valery C.’s rape accusation that defendant killed Carol to
“cover up” the sexual assault, and to prevent her from reporting the crime as
Valery had done. This inference of a motive to kill, coupled with evidence that
Carol was last seen alive with defendant and that she died soon after they left the
bar, constituted circumstantial evidence that he intended, deliberated, and
premeditated her death for purposes of proving first degree murder. (People v.
Cummings (1993) 4 Cal.4th 1233, 1284.)
However, any lack of cross-admissibility is not, by itself, sufficient to show
prejudice and bar joinder. (§ 954.1; People v. Osband (1996) 13 Cal.4th 622,
667.)9 Here, the trial court considered other factors commonly used to assess
prejudice, including the likelihood of inflaming the jury, the strength of the
evidence, and the availability of the death penalty. (People v. Marshall (1997) 15
Cal.4th 1, 27-28.) The court rejected the notion that the noncapital count was
more “passionate” than the capital count, noting that the latter crime involved both
sexual violence and murder. The court also determined that circumstantial
9
Section 954.1 states, in part, that where “two or more different offenses of
the same class of crimes or offenses have been charged together in the same
accusatory pleading, . . . evidence concerning one offense or offenses need not be
admissible as to the other offense or offenses before the jointly charged offenses
may be tried together.” The voters adopted this statute in Proposition 115, which
took effect on June 6, 1990. Section 954.1 applies to trials held after its enactment
even where, as here, the charged crimes occurred before that time. (Tapia v.
Superior Court, supra, 53 Cal.3d 282, 299-300.) Section 954.1 codified existing
case law (People v. Osband, supra, 13 Cal.4th 622, 667), and did not materially
change the rules of severance. (People v. Arias, supra, 13 Cal.4th 92, 126, fn. 7.)
15
evidence of defendant’s role in Carol’s murder seemed “pretty strong” compared
to Valery C.’s firsthand account of the rape.
This reasoning is persuasive. In short, defendant fails to demonstrate that
the denial of severance involved an abuse of discretion or caused gross unfairness
at his trial. As in other cases, we reject the claim. (E.g., People v. Marshall,
supra, 15 Cal.4th 1, 27-28 [noncapital sex crime properly joined with subsequent
similar capital crime]; People v. Davis, supra, 10 Cal.4th 463, 507-509 [same].)
B. Miranda Claim
Defendant argues that he invoked his privilege against self-incrimination by
suggesting he might “stop talking” to the police on February 2, 1990, and that
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) barred his subsequent
statements during the same interview. The trial court purportedly erred in denying
a motion to suppress such evidence. We disagree.
Evidence at the suppression hearing consisted primarily of Detective
Coffey’s testimony and the transcribed interview. The relevant facts are as
follows: Coffey and another officer met defendant at work, and said they were
investigating a homicide. Defendant was cordial and offered to help. He agreed
to talk at the police station, and voluntarily entered the police car for this purpose.
Defendant was not placed under arrest and was free to decline the ride.
Meanwhile, detectives impounded defendant’s car. He sat in the police car and
calmly watched the process.
The evidence further established that during the ride to the station, no
discussion about the criminal investigation occurred. However, in mentioning his
marital history in Texas, defendant referred to women as “bitches.” Concerned
that defendant might discuss the capital crime, Detective Coffey read defendant
his Miranda rights from an official card. Defendant said he understood his rights,
and agreed to waive each one. No other conversation occurred in the police car.
16
The record of the suppression hearing also showed that defendant received
no new Miranda warnings at the station. Officers placed him in an interview
room, activated the tape recorder, and asked questions. After defendant admitted
that he gave Carol a ride, Detective Coffey suggested that the pair fought. The
following exchange then occurred:
DEFENDANT: “Okay. I’ll tell you. I think it’s about time for me to stop
talking.”
COFFEY:
“You can stop talking. You can stop talking.”
DEFENDANT: “Okay.”
COFFEY:
“It’s up to you. Nobody ever forces you to talk. I told you
that. I read you all that (untranslatable).”
DEFENDANT: “Well, I mean (untranslatable) God damn accused of
something that I didn’t do. I’m telling you the truth. And you’re not believe [sic]
me. You’re not believing me. I’m telling you the truth.”
COFFEY:
“Richard, the only problem is, I can prove otherwise. The
only reason I — listen to me.”
DEFENDANT: “The only thing you can prove is I took her out of that bar,
man. That’s all I did. That’s the only thing I’ve done.” (Italics added.)
Detective Coffey explained at the suppression hearing that if defendant had
decided to stop talking, the interview would have ended. Because defendant’s
statements were unclear in this regard, Coffey did not believe that questioning had
to stop. Nevertheless, in an abundance of caution, Coffey “reinforced” the notion
that defendant was free to exercise his right to silence.
After hearing argument on both sides, the trial court found no Miranda
violation and declined to suppress defendant’s statements. The court determined
that defendant voluntarily waived his Miranda rights before the interview. The
17
court also determined that he never stopped speaking freely with the police, and
that he declined the detective’s offer to do so.
To protect the Fifth Amendment privilege against self-incrimination, a
person undergoing a custodial interrogation must first be advised of his right to
remain silent, to the presence of counsel, and to appointed counsel, if indigent.
(Miranda, supra, 384 U.S. 436, 444, 467-473, 478-479.) As long as the suspect
knowingly and intelligently waives these rights, the police are free to interrogate
him. (Id. at pp. 444, 475, 479.) However, if, at any point in the interview, the
suspect invokes his rights, questioning must cease. (Id. at pp. 444-445, 473-474;
see Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [questioning cannot resume
until request for counsel is granted or suspect restarts interview].) Statements
obtained in violation of these rules are inadmissible to prove guilt in a criminal
case. (Miranda, supra, 384 U.S. at pp. 444, 476-477, 479; see People v. Sapp
(2003) 31 Cal.4th 240, 266; People v. Neal (2003) 31 Cal.4th 63, 79-80.)
In order to invoke the Fifth Amendment privilege after it has been waived,
and in order to halt police questioning after it has begun, the suspect “must
unambiguously” assert his right to silence or counsel. (Davis v. United States
(1994) 512 U.S. 452, 459 (Davis), italics added.) It is not enough for a reasonable
police officer to understand that the suspect might be invoking his rights. (Ibid.)
Faced with an ambiguous or equivocal statement, law enforcement officers are not
required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or
to cease questioning altogether. (Davis, supra, 512 U.S. at pp. 459-462.) Of
course, such an approach may disadvantage suspects who, for emotional or
intellectual reasons, have difficulty expressing themselves. (Id. at p. 460.)
However, a rule requiring a clear invocation of rights from someone who has
already received and waived them “avoid[s] difficulties of proof” (id. at p. 458),
and promotes “effective law enforcement.” (Id. at p. 461.)
18
As in prior cases, we follow Davis here. (People v. Gonzalez (2005) 34
Cal.4th 1111, 1125; People v. Michaels (2002) 28 Cal.4th 486, 510; People v.
Crittenden (1994) 9 Cal.4th 83, 129-130.) A reasonable officer in Detective
Coffey’s position would have concluded that defendant’s first remark (“I think it’s
about time for me to stop talking”) expressed apparent frustration, but did not end
the interview. Defendant agrees that this statement was ambiguous under Davis,
supra, 512 U.S. 452, and that the police were not required to stop asking questions
at that point. Nevertheless, Coffey did stop the interrogation, and twice reminded
defendant of his right to “stop talking.” This cautious approach gave defendant a
chance to clarify whether questioning should proceed — something defendant
concedes the officer was not constitutionally required to do.
Contrary to what defendant claims, he did not clarify his ambiguous
remarks or clearly invoke his constitutional privilege by saying “Okay.” This
nonsubstantive response merely implied that defendant understood what he had
just heard, and that he could “stop talking” if he so chose. Detective Coffey’s
subsequent comments also do not support defendant’s related claim that he was
badgered into resuming the interrogation. Consistent with his neutral stance
throughout the exchange, Coffey again reminded defendant that talking was
optional (“[i]t’s up to you”), and alluded to the prior Miranda warning (“I read
you all that”). However, instead of exercising the right to silence that Detective
Coffey purposefully “reinforced,” defendant protested his innocence and
continuing talking about the crime. Under the circumstances, nothing prevented
Coffey from continuing the exchange. We therefore uphold admission of the
entire police interview at trial.10
10
In People v. Michaels, supra, 28 Cal.4th 486, we found no Miranda
violation under strikingly similar facts. The defendant in Michaels waived his
(footnote continued on next page)
19
C. Death Qualification of Jurors
1. Sequestration Issues
Defendant insists the trial court erred by failing to conduct the entire death-
qualifying voir dire “individually and in sequestration” as set forth in Hovey v.
Superior Court (1980) 28 Cal.3d 1, 80 (Hovey). He claims violations of his
federal constitutional rights to due process and an impartial jury.
Before jury selection, and on its own motion, the trial court determined that
Hovey, supra, 28 Cal.3d 1, did not apply. This ruling was correct. Defendant’s
trial occurred after voters approved Proposition 115, which added new section 223
to the Code of Civil Procedure. (See Tapia v. Superior Court, supra, 53 Cal.3d
282, 299-300 [applying statute to proceedings held after Prop. 115 took effect on
June 6, 1990].) Then, as now, the statute provided that the voir dire of prospective
jurors in capital cases “shall, where practicable, occur in the presence of the other
jurors.” (Code Civ. Proc., § 223.)11 This provision had the intent and effect of
(footnote continued from previous page)
constitutional rights, and was asked to describe the capital crime. He hesitated,
saying “ ‘I don’t know if I should without an attorney.’ ” (Id. at p. 509, italics
omitted.) The interrogating officer replied that defendant could stop talking, and
that he did not have to answer any question he disliked. Defendant said, “ ‘Okay,
that one,’ ” and then confessed. (Ibid., italics omitted.) On appeal, defendant
argued that even if his reference to counsel was ambiguous, he clearly invoked his
right to silence by saying “Okay.” Applying Davis, supra, 512 U.S. 452, we
rejected the claim. The defendant in Michaels never clearly “assert[ed] a right to
refuse to answer any questions, ask[ed] that the questioning come to a halt, or
request[ed] counsel.” (People v. Michaels, supra, 28 Cal.4th at p. 510.) As noted
above, defendant’s remarks are no less equivocal in the present case.
11
At the time of trial, Code of Civil Procedure section 223 stated: “In a
criminal case, the court shall conduct the examination of prospective jurors.
However, the court may permit the parties, upon a showing of good cause, to
(footnote continued on next page)
20
abrogating the sequestration rule of Hovey, supra, 28 Cal.3d 1, which was not
constitutionally compelled. (See id. at p. 80 [invoking court’s “supervisory
authority over California criminal procedure”]; see also People v. Navarette
(2003) 30 Cal.4th 458, 490; People v. Slaughter (2002) 27 Cal.4th 1187, 1199;
People v. Box (2000) 23 Cal.4th 1153, 1180; People v. Waidla (2000) 22 Cal.4th
690, 713.) We reject defendant’s contrary claim.12
Defendant alternatively complains that to the extent the court decided that
group voir dire was “practicable” (Code Civ. Proc., § 223), it applied statutory law
in a manner that denied him due process and an impartial jury. Prospective jurors
allegedly gave monosyllabic, unconsidered, and parroted answers that concealed
their true views on capital punishment. The record does not support the claim.
(footnote continued from previous page)
supplement the examination by such further inquiry as it deems proper, or shall
itself submit to the prospective jurors upon such a showing, such additional
questions by the parties as it deems proper. Voir dire of any prospective jurors
shall, where practicable, occur in the presence of the other jurors in all criminal
cases, including death penalty cases.” (As added by Prop. 115, approved by
voters, Primary Elec. (June 5, 1990).) Effective January 1, 2001, the statute was
amended to give counsel for each party an expanded, though not unlimited, right
to examine prospective jurors through direct oral questioning. However, the
provision regarding group voir dire remained unchanged. (Code Civ. Proc., § 223,
as amended by Stats. 2000, ch. 192, § 1; People v. Stewart (2004) 33 Cal.4th 425,
455 & fns. 17 & 18.)
12
The Attorney General argues that defendant has forfeited his right to
complain about the lack of Hovey voir dire because he never sought individual
sequestered voir dire of the whole panel below. As noted, the trial court raised the
issue sua sponte to address the procedural changes made by Proposition 115. The
Attorney General cites no authority for his assumption that such a sua sponte
ruling is immune from appellate review. Thus, consistent with other similar cases,
we reject the Hovey claim solely on the merits. (See, e.g., People v. Navarette,
supra, 30 Cal.4th 458, 490; People v. Slaughter, supra, 27 Cal.4th 1187, 1199;
People v. Box, supra, 23 Cal.4th 1153, 1180.)
21
Initially, the trial court advised counsel of its intent to apply Code of Civil
Procedure section 223, and of the procedures that would be used. Thus, the court
said it would assume primary responsibility for conducting the oral examination,
and that counsel would be allowed to ask appropriate follow-up questions.
Prospective jurors, the court said, would be examined as a group in open court.
However, the court made clear that many questions, including some involving
capital punishment, would be asked at the bench on a select basis. Counsel were
told to “expect to approach the bench quite a bit,” because the court planned to ask
“sensitive” questions and to probe “exotic” answers in this private manner.
Prospective jurors completed a 25-page questionnaire, which they signed
under penalty of perjury. One section — six pages and 14 questions — concerned
capital punishment. To enhance questioning, the court gave counsel advance
copies of the questionnaires in the same order in which each prospective juror
would be orally examined. The court said it planned to make preparatory notes on
“every single one” of its copies of the questionnaires.
As promised, the court began death qualification by asking each
prospective juror, in open court, four questions similar to ones appearing on the
questionnaire. These questions sought to discover whether prospective jurors
would “automatically” vote for a certain penalty (Witherspoon v. Illinois (1968)
391 U.S. 510, 522, fn. 21 (Witherspoon), italics omitted), and whether their views
on capital punishment would “ ‘prevent or substantially impair’ ” the performance
of their duties in keeping with their oath and the court’s instructions. (Wainwright
v. Witt (1985) 469 U.S. 412, 424 (Witt) [clarifying the Witherspoon standard].)13
13
The court asked whether jurors, because of their views on capital
punishment, and notwithstanding the evidence in the case, would (1) refuse to
convict defendant of first degree murder to prevent a penalty trial, (2) refuse to
(footnote continued on next page)
22
Depending upon the answers given either orally or in writing, the trial court
often asked follow-up questions about the person’s views on capital punishment.
In many instances, such clarification occurred at the bench so that other
prospective jurors could not hear the exchange. The court permitted counsel to
ask additional questions, particularly as to matters discussed at the bench.
Based on these facts, and as a threshold matter, it appears the defense had
ample opportunity to object to the manner in which the trial court conducted group
voir dire under applicable statutory law, and to propose individual sequestered voir
dire as a solution to any perceived problems. Thus, as the Attorney General
maintains, defendant’s failure to raise any such complaint below forfeits the issue
on appeal. (People v. Vieira (March 7, 2005, S026040) __ Cal.4th __, __.)
The claim lacks merit in any event. Defendant is wrong insofar as he
implies that no individual, sequestered examination on capital punishment
occurred. We also cannot conclude that the trial court’s decision to ask questions
both in open court and at the bench produced meaningless, lockstep answers.
Indeed, these procedures enabled counsel on both sides to challenge certain
individuals for cause — sometimes successfully — based on their death penalty
views. Defendant provides no “specific example of how questioning prospective
jurors in the presence of other jurors prevented him from uncovering juror bias.”
(People v. Navarette, supra, 30 Cal.4th 458, 490.) Thus, consistent with other
post-Proposition 115 cases upholding similar limited sequestration procedures, we
(footnote continued from previous page)
find the special circumstance true to prevent a penalty trial, (3) automatically
refuse to vote for death and automatically vote for LWOP, and (4) automatically
refuse to vote for LWOP and automatically vote for death.
23
find no constitutional or other error. (E.g., People v. Waidla, supra, 22 Cal.4th
690, 713-714 [same trial judge and procedures as in present case].)
2. General Adequacy of Questioning
Defendant asserts that other deficiencies in death qualification prevented
him from adequately questioning prospective jurors, and deprived him of federal
due process guarantees. For instance, defense counsel objected to the “breakneck
speed” of voir dire, and asked the trial court to slow down by “about 15 percent.”
Defendant also claims the court made too few inquiries, as evidenced by its use of
four standard questions and by its rejection of two proposed defense questions.14
Defendant did not frame his complaints about the pace and scope of voir
dire below in terms of a due process violation. However, assuming without
deciding that this federal claim has been preserved (see People v. Yeoman (2003)
31 Cal.4th 93, 117-118, 133 (Yeoman) [federal constitutional claim not waived
when legal standard and relevant facts are essentially the same as state law claim
timely raised at trial]), no constitutional or other error occurred.
Recent decisions of this court have emphasized the importance of
meaningful death-qualifying voir dire. We have reminded trial courts of their duty
to know and follow proper procedure, and to devote sufficient time and effort to
14
Before jury selection, defendant urged the court to ask three additional
questions on (1) how prospective jurors would feel about unpleasant photographs
of the decedent, (2) whether death should always be the penalty for convicted
killers, and (3) whether LWOP is a fair punishment for convicted killers. The trial
court agreed to give a modified version of the first question, asking whether the
photos would affect jurors’ ability to be “fair.” However, the court concluded that
the other two questions were irrelevant and misleading because they did not
concern first degree special-circumstance killings, or address the jury’s duty to
consider and weigh the evidence. The court also decided that counsel’s questions
largely duplicated the written questionnaire and the planned oral examination.
24
the process. (See People v. Stewart, supra, 33 Cal.4th 425, 454-455; People v.
Heard (2003) 31 Cal.4th 946, 966-967.) At bottom, both the court and counsel
“must have sufficient information regarding the prospective juror’s state of mind
to permit a reliable determination as to whether the juror’s views [on capital
punishment] would ‘ “prevent or substantially impair” ’ the performance of his or
her duties.” (People v. Stewart, supra, 33 Cal.4th at p. 445.) Otherwise,
reversible error can occur. (E.g., id. at pp. 446-452 [over defense objection, court
erroneously excused five prospective jurors for cause based on inherently
ambiguous responses to legally flawed questionnaire]; People v. Heard, supra, 31
Cal.4th at pp. 964-966 [over defense objection, court erroneously excused one
prospective juror for cause based on ambiguous answers to imprecise and
incomplete oral examination].)
Nonetheless, the trial court has broad discretion over the number and nature
of questions about the death penalty. We have rejected complaints about “hasty”
(People v. Navarette, supra, 30 Cal.4th 458, 487-488) or “perfunctory” voir dire.
(People v. Hernandez (2003) 30 Cal.4th 835, 855.) We also have found no error
where the court relied heavily on three, four, or five general questions tracking
language from Witherspoon, supra, 391 U.S. 510, and Witt, supra, 469 U.S. 412,
424. (E.g., People v. Hernandez, supra, 30 Cal.4th at pp. 855-856; People v.
Navarette, supra, 30 Cal.4th at p. 487; People v. Cunningham (2001) 25 Cal.4th
926, 973-974; People v. Tuilaepa (1992) 4 Cal.4th 569, 586.) These cases found
voir dire to be adequate because the court and/or counsel asked additional
questions to clarify ambiguous responses and to reliably expose disqualifying bias.
Such is the case here. Both the court and counsel posed follow-up
questions where necessary to glean prospective jurors’ views on penalty.
Defendant cites no instance in which the trial court (1) erroneously retained a
prospective juror who should have been excused for cause, (2) erroneously
25
excused for cause a prospective juror who should have been retained, (3) decided
any challenge for cause absent sufficient information to do so, or (4) allowed a
biased juror to serve in the case. Hence, defendant has not shown that the pace or
scope of death qualification — including rejection of two defense questions —
constituted an abuse of discretion or violated his constitutional rights.
IV. GUILT PHASE ISSUES
A. Sufficiency of the Evidence
Defendant claims insufficient evidence supports both first degree murder
theories presented at trial: (1) murder in the commission of forcible rape, and (2)
willful, deliberate, and premeditated murder. Federal due process guarantees
allegedly compel reversal of the murder count. We disagree.
1. Rape Murder
Defendant notes that he could be convicted of first degree murder under a
felony-murder-rape theory if he accomplished sexual intercourse against Carol’s
will by means of force or fear. (See § 261, subd. (a)(2); People v. Maury (2003)
30 Cal.4th 342, 403.) He insists the prosecution did not prove these elements
because there was no real injury to Carol’s vagina, and because he told detectives
that she consented to vaginal sex. However, viewing all of the evidence most
favorably to the judgment, we reject the claim. (People v. Johnson (1980) 26
Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307.)
The evidence suggested that defendant formed a sexual interest in Carol
inside the bar the night she was killed. After only one dance, defendant looked or
stared at her with such intensity that his conduct was noticed by at least one
bystander. When Carol told the bartender that she planned to leave by taxi,
defendant — who apparently continued to watch her closely — volunteered to
drive her home. Defendant made this offer even though he did not know where
Carol lived, and even though the pair hardly knew each other.
26
The jury could infer that Carol had no similar interest in defendant. By
asking him to dance, Carol treated defendant no differently than other bar patrons
with whom she danced the same night or on prior occasions. She did not follow
defendant to his table afterwards, but returned to her barstool instead. Moreover,
Carol balked at being alone with defendant. Though she eventually accepted a
ride from him, she first asked the bartender whether it was safe to go.
In a related vein, Carol told the bartender that she was going home to her
family. The jury could have accepted this statement at face value, and concluded
that Carol did not intend to have sexual relations with defendant after she left the
bar. Such evidence was “clearly probative” of both lack of consent and rape, and
supported conviction under the prosecution’s first degree felony-murder theory.
(People v. Rowland (1992) 4 Cal.4th 238, 264 [rape-murder victim’s statement
about going home to sleep, which she made after enduring defendant’s sexual
advances in bar, suggested she did not thereafter consent to sex with him].)
Against this backdrop, defendant apparently saw Carol consume alcohol in
the bar. He also later told the police that she was drunk while riding in his car. To
rational jurors, defendant might have believed that Carol’s condition would make
her receptive or vulnerable to his sexual advances once they were alone together.
However, subsequent events indicate that Carol rejected such advances and
that — consistent with evidence in the Valery C. case — defendant forced her to
have sex anyway. Carol likely died within 30 minutes of leaving the bar with
defendant. During that time, a violent struggle occurred in his car, as evidenced
by Carol’s defensive and other injuries, the seat foam stuck to her body, and
defendant’s own statements. Jurors also learned that he penetrated and ejaculated
into her vaginal and anal cavities. Given the compressed time frame, and the sheer
number of violent and sexual acts, the jury could reasonably conclude that they
27
were part of one continuous criminal transaction in which defendant forced Carol
to submit to both vaginal and anal intercourse against her will.
Defendant highlights his statements to police indicating that Carol
consented to vaginal sex, and that they fought afterwards about whether to visit
another bar. However, the jury could have discredited this account. (See, e.g.,
People v. Berryman (1993) 6 Cal.4th 1048, 1084 [finding substantial evidence that
consensual sex did not precede violence, and that violence accompanied sex].)
Defendant initially denied knowing Carol or being in the bar the night she was
killed. When Detective Coffey disclosed contrary evidence, defendant admitted
driving Carol home, but insisted no sex or violence occurred. Only after Coffey
implied that defendant’s semen would be found in Carol’s body did he admit
vaginal intercourse. He also eventually admitted a struggle in his car. In addition,
defendant denied anal intercourse — a stance inconsistent with medical, blood,
and DNA evidence indicating that defendant forcibly sodomized Carol. Faced
with defendant’s changing stories and with evidence contradicting much of what
he said, jurors could infer that none of his exculpatory statements about sex was
true, and that he lied to defeat both sodomy and rape charges.
Contrary to what defendant further implies, the lack of vaginal injury does
not preclude the jury from finding rape or prevent this court from upholding that
determination on appeal. (People v. Berryman, supra, 6 Cal.4th 1048, 1084; see
People v. Griffin (2004) 33 Cal.4th 1015, 1027 [rape involves force sufficient “to
overcome the will of the victim,” and does not require evidence that such force
“physically facilitated sexual penetration or prevented the victim from physically
resisting her attacker”].) Here, of course, the jury was free to accept testimony by
Dr. Cogan and Investigator Kitchings describing apparent trauma to Carol’s
vagina, e.g., bruised labial skin. The inference that such injury occurred during
nonconsensual sex was strengthened by evidence that Carol’s body was found
28
naked from the waist down with her legs spread apart. (People v. Berryman,
supra, 6 Cal.4th at p. 1084.) Such degrading circumstances could have convinced
jurors that there was nothing lawful about defendant’s sexual encounter with
Carol, including the act of vaginal intercourse.
In sum, we find sufficient evidence to support defendant’s conviction of
first degree murder under a felony-murder-rape theory.
2. Premeditated Murder
Defendant argues that evidence of premeditation and deliberation was
insufficient to support the first degree murder conviction. Under this approach,
Carol’s strangulation was impulsive or accidental. Defendant points to the lack of
any evidence that he procured a weapon in advance or planned the killing.
Suggesting he had no motive to kill, defendant notes that he and Carol were virtual
strangers who met on friendly terms in the bar.
An intentional killing is premeditated and deliberate if it occurred as the
result of preexisting thought and reflection rather than unconsidered or rash
impulse. (People v. Perez (1992) 2 Cal.4th 1117, 1125, applying People v.
Anderson (1968) 70 Cal.2d 15, 26-27.) However, the requisite reflection need not
span a specific or extended period of time. “ ‘ “Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived at quickly
. . . .” ’ ” (People v. Bolin (1998) 18 Cal.4th 297, 332.)
Appellate courts typically rely on three kinds of evidence in resolving the
question raised here: motive, planning activity, and manner of killing. (People v.
Perez, supra, 2 Cal.4th 1117, 1125, applying People v. Anderson, supra, 70 Cal.2d
15, 26-27.) These factors need not be present in any particular combination to find
substantial evidence of premeditation and deliberation. (People v. Pride (1992) 3
Cal.4th 195, 247.) However, “[w]hen the record discloses evidence in all three
categories, the verdict generally will be sustained.” (People v. Proctor (1992) 4
29
Cal.4th 499, 529.) In conducting this analysis, we draw all reasonable inferences
necessary to support the judgment. (People v. Perez, supra, 2 Cal.4th at p. 1124,
citing People v. Johnson, supra, 26 Cal.3d 557, 578.)
As noted, the murder occurred during a sexually motivated attack. It
appears defendant became fixated upon Carol after she asked him to dance. He
paid close attention to her words and movements afterwards, and made sure she
did not take a taxi home. The evidence further indicated that not long after they
drove away from the bar, and while they were alone in his car, defendant forcibly
raped and sodomized Carol, and subjected her to lethal violence. The jury could
reasonably have believed that defendant killed Carol “to silence her as a possible
witness to her own sexual assault.” (People v. Pride, supra, 3 Cal.4th 195, 247.)
It also appears defendant planned the fatal confrontation to some extent.
After watching Carol much of the night, he offered her a ride home. Far from
being altruistic, this offer could reasonably be seen as a pretext for the pair to be
alone. Such circumstances made Carol vulnerable not only to sexual assault, but
also to murder. Indeed, as revealed during the police interview, defendant knew
when he left the bar with Carol that Valery C. had formally accused him of rape.
The jury could have concluded that defendant decided before the murder to ensure
that Carol, a subsequent rape victim, did not survive to report the crime.
The manner of killing also suggests premeditation. The pathologist, Dr.
Cogan, testified that lethal pressure had been applied to Carol’s neck for a “long”
time. This evidence suggests defendant had ample opportunity to consider the
deadly consequences of his actions. (See, e.g., People v. Davis, supra, 10 Cal.4th
463, 510 [strangulation of sexual assault victim for up to five minutes suggested
deliberate plan to kill her].) However, instead of easing the pressure on Carol’s
neck (as he did during the rape of Valery C.), defendant used multiple means of
strangulation, namely, manual choking sufficient to break the thyroid cartilage,
30
use of a choke hold sufficient to break the cricoid cartilage, and application of a
ligature sufficient to damage the neck. Such acts seem calculated to ensure death.
(See People v. Bonillas (1989) 48 Cal.3d 757, 792 [describing ligature
strangulation as inherently deliberate act].)
Accordingly, we find substantial evidence of first degree premeditated
murder, and decline to reverse the conviction on this ground.
B. Evidentiary Rulings
1. Autopsy Photographs
In several hearings held outside the jury’s presence, the court and counsel
debated the admissibility of autopsy photographs. The disputed items included
three photos of Carol’s dissected neck (exhibits Nos. 46, 47, and 48), and two
photos of her dissected anus (exhibits Nos. 61 and 62).
As noted further below, the prosecution’s offer of proof included voir dire
testimony by the pathologist, Dr. Cogan, that all five photographs played a critical
role in explaining his views on sexual trauma and the cause of death. The defense
countered by arguing that the pictures were unduly gruesome and prejudicial.
Hence, to prevent admission of the neck photographs, defense counsel offered to
stipulate to strangulation as the cause of death. Counsel also sought to exclude the
anal photographs to prevent jurors from mistakenly blaming defendant for surgical
damage caused by the autopsy procedure itself.
The trial court ruled that none of the photographs was exceptionally bloody
or gruesome, and that all plainly supported the prosecution’s case. Declining to
sanitize the crime by excluding this evidence, the court concluded that its
probative value substantially outweighed any prejudicial impact. (See Evid. Code,
§ 352.)
31
Defendant now contends that admission of the photographs constituted an
abuse of discretion, and violated his rights to due process and a reliable verdict
under the federal Constitution. We reject the claims.
Defendant did not seek to exclude this evidence on constitutional grounds
below. However, assuming without deciding that this federal claim has been
preserved (see Yeoman, supra, 31 Cal.4th 93, 117-118, 133), no error occurred.
The neck photographs showed that multiple strangulation methods and sustained
pressure caused deep injuries in the form of hemorrhaging and cartilage fractures
while Carol was alive. Such evidence supported the intent to kill and
premeditation elements of the first degree murder charge, and weakened any
inference of a rash killing. Similarly, photographs inside the anal cavity revealed
tearing and bleeding consistent with forcible penetration before death —
information that supported the sodomy-murder special circumstance. We reject
defendant’s claim that photographs are irrelevant or inadmissible simply because
they duplicate testimony, depict uncontested facts, or trigger an offer to stipulate.
(People v. Crittenden, supra, 9 Cal.4th 83, 132-133; People v. Pride, supra, 3
Cal.4th 195, 243.)
Nor did the trial court err in concluding that relevance outweighed
prejudice. The photographs are unpleasant, but not to the point of distracting the
jury from its proper function. Contrary to what defendant assumes, jurors could
“distinguish between the wounds inflicted from the murder and the disfigurement
caused by the autopsy.” (People v. Welch (1999) 20 Cal.4th 701, 751.) Also, any
overlap between photographs was insubstantial, particularly since Dr. Cogan
relied on each one during his testimony. (See, e.g., People v. Cain (1995) 10
Cal.4th 1, 29.)
We have upheld the use of autopsy photos to prove guilt in other capital
trials, including images of dissected tissue and excised organs. (E.g., People v.
32
Weaver (2001) 26 Cal.4th 876, 932-934; People v. Medina (1995) 11 Cal.4th 694,
754-755; People v. Cain, supra, 10 Cal.4th 1, 27-29.) We do so again here.
2. Detective Coffey’s Interview Techniques
The prosecution called Detective Coffey to describe the murder
investigation, including defendant’s statements at the police station. When first
examined on the latter topic, Coffey mentioned specific interview techniques used
in this case. They included speaking in a stern voice, and disclosing incriminating
evidence whenever it seemed defendant was “not being truthful.”
A bench conference then occurred in which the court and counsel discussed
the logistics of presenting the recorded interview to the jury — a recording that
was three and one-half hours long. During this conference, the court authorized
the prosecution to elicit additional testimony concerning Coffey’s reasons for
asking defendant certain questions. The court also overruled defense counsel’s
objection that the interview itself provided the “best evidence,” and that the
proffered testimony was unnecessary.
Hence, when describing defendant’s statements about his conduct on
January 19, 1990, Detective Coffey repeatedly testified that defendant changed his
story when confronted with conflicting evidence. Coffey twice said that this
process exposed apparent “lies” on defendant’s part. Defense counsel objected
throughout this exchange solely on grounds the prosecution asked Coffey leading
and argumentative questions, and assumed facts not in evidence.
Defendant now contends the trial court allowed Detective Coffey to attack
defendant’s veracity in violation of state law rules restricting both expert and lay
opinion testimony on the issue. (See Evid. Code, §§ 800, 801; People v. Melton
(1988) 44 Cal.3d 713, 744; People v. Sergill (1982) 138 Cal.App.3d 34, 38-40; but
see People v. Padilla (1995) 11 Cal.4th 891, 946-947 [suggesting that Cal. Const.
art. I, § 28, subd. (d), known as Prop. 8’s Truth-in-Evidence provision, repealed
33
such rules for crimes committed after its June 1982 effective date].) The ruling
supposedly usurped the jury function (thereby violating the Fifth, Eighth, and
Fourteenth Amendments), and allowed the prosecutor to exploit defendant’s “lies”
in closing argument.
We reject these claims. First, as noted by the Attorney General, defendant
did not seek to exclude the evidence below on any theory raised here. As in prior
cases involving a failure to object on similar grounds, the claims have been
forfeited on appeal. (People v. Anderson (1990) 52 Cal.3d 453, 478.)
Second, defendant misreads the record. Detective Coffey highlighted the
twists and turns in a long interrogation. Nothing in this testimony or the trial
court’s rulings indicated that Coffey was offering an opinion for direct jury
consideration on the issue of defendant’s credibility. No reasonable juror would
have viewed the evidence this way. Moreover, Coffey’s testimony mirrored the
interview heard by the jury, including defendant’s own admissions about lying and
changing his account. Just as we find no flaw in the questions the court allowed
the prosecutor to ask, we find nothing harmful in the answers Coffey gave.
3. Evidence Carol Left the Bar with Another Man
During opening remarks and, later, on cross-examination of bar patron
Cooper, the defense tried to inform the jury that Carol left the White Oak Inn with
other men before January 19, 1990, the day of the murder. Each time, the trial
court sustained the prosecution’s objection, and barred such evidence absent an in
limine offer of proof establishing its relevance.
The issue arose again on cross-examination of bartender Russo. Abiding
by the court’s ruling, defense counsel moved outside the jury’s presence to ask
Russo whether, consistent with his preliminary hearing testimony, he saw Carol
leave the bar with a man other than her husband in the weeks before the murder.
Defendant argued that Carol’s behavior with other men was admissible under
34
Evidence Code section 1103, subdivision (a)(1) to prove that she acted the same
way with defendant the night she died.15 Defendant insisted that exclusion of the
evidence would violate his constitutional right to a fair trial. The prosecution
renewed its relevance objection.
After a hearing, defendant’s motion was denied. The court ruled that to the
extent the defense sought to imply that Carol had a history of consenting to sex
with men after leaving the bar, the proffered evidence violated Evidence Code
section 1103, subdivision (c)(1).16 In addition, the court exercised its discretion
15
Evidence Code section 1103, subdivision (a)(1) states, in part, that evidence
of a crime victim’s character in the form of “specific instances of conduct” is not
inadmissible under section 1101 of the same code where the defendant seeks to
prove “conduct of the victim in conformity” with such evidence in a criminal case.
Proposition 8’s Truth-in-Evidence provision, which ended most restrictions on the
use of relevant evidence in criminal cases, explicitly exempted both Evidence
Code section 1103 and Evidence Code section 352 from its reach. (See Cal.
Const., art. I, § 28, subd. (d); People v. Harris (1989) 47 Cal.3d 1047, 1081-1082.)
16
Evidence Code section 1103, subdivision (c)(1) provides that, “in any
prosecution under Section 261 . . . or under Section 286 . . . of the Penal Code, . . .
evidence of specific instances of the complaining witness’ sexual conduct . . . is
not admissible by the defendant in order to prove consent by the complaining
witness.” The trial court observed that no “complaining witness” survived the
alleged crime, and that defendant was not separately charged “under Section 261
. . . or under Section 286” with rape and sodomy, respectively. However, to the
extent “consent” bore on the rape-murder theory of first degree murder and the
sodomy-murder special circumstance, the court ruled that the statute barred
evidence that Carol left the bar with other men. The court explained that whether
a woman is dead or alive, she should not be “vilified” by her sexual history “on
the issue of consent.” On appeal, defendant claims the court erred in applying
Evidence Code section 1103, subdivision (c)(1) where, as here, none of the
enumerated sex crimes is charged as a substantive offense. However, we need not,
and do not, decide the issue. As explained above, the trial court properly excluded
the evidence on another viable ground — Evidence Code section 352.
35
under Evidence Code section 352, and excluded the evidence as unduly
prejudicial. The court emphasized that the offer of proof concerned “only one
very amorphous incident in which [Carol] left the bar with another man. For what
purpose, for what reason, it is unknown.”
Defendant argues here, much as below, that the trial court abused its
discretion under state law, and violated his right to present a defense and to
receive both a fair trial and reliable verdict under the federal Constitution. The
ruling allegedly prevented jurors from inferring that Carol, who was intoxicated,
voluntarily left the bar with defendant, and engaged in consensual sexual relations
with him. We disagree.
As defendant seems to concede, evidence that Carol previously left the
White Oak Inn with another man had no probative value other than to suggest that
she did so in order to have sex, and that she acted in a similar fashion when she
left the bar with defendant. However, in addition to any prohibition that might
apply under Evidence Code section 1103, subdivision (c)(1), the foregoing
inference was speculative for reasons the trial court explained. The offer of proof
contained no information about Carol’s conduct on prior occasions, and merely
insinuated that she was a promiscuous person. “The court is not required to admit
evidence that merely makes the victim of a crime look bad.” (People v. Kelly
(1992) 1 Cal.4th 495, 523.) Thus, the trial court did not abuse its broad discretion
in concluding that the evidence lacked probative value, and that the risk of
confusion and prejudice was great. We reject defendant’s contrary claim.
4. Carol’s Intoxicated State
During Dr. Cogan’s cross-examination, the parties stipulated that,
consistent with the toxicology report attached to the autopsy report, Carol had a
.26 blood-alcohol level, and was intoxicated. At the bench, defense counsel
complained that the stipulation was inadequate absent additional evidence about
36
Carol’s condition. Counsel wanted the jury to know, for instance, that a .08 blood-
alcohol level is sufficient to commit a drunk driving offense. (See Veh. Code,
§ 23152, subd. (b).) The trial court replied by sharing the prosecution’s relevance
concerns, and by saying it might exclude such evidence if the defense proffered it.
Nonetheless, the defense subsequently moved to introduce evidence
explaining Carol’s intoxicated state. First, in proceedings held largely in the
prosecutor’s absence, counsel sought funds to hire an expert to testify as described
below. Second, in another hearing held within the prosecutor’s presence, counsel
argued that such evidence was relevant and should be admitted by the court.
Fairly understood, and viewing these proceedings as a whole, defendant
offered to admit expert testimony that would establish: (1) the amount of alcohol
Carol consumed the night she was killed based on her height, weight, and blood-
alcohol content, (2) the general effect of that blood-alcohol content in lowering a
person’s sexual “inhibitions,” and (3) the general likelihood that a person whose
inhibitions had been lowered in this manner would have consented to sexual
relations. Defendant also sought admission of evidence that Carol’s blood-alcohol
level exceeded the .08 standard needed to violate the Vehicle Code.17
The trial court questioned whether defendant followed the proper funds
procedure in capital cases. (See § 987.9, subd. (a) [capital trial judge does not
decide funds motion].) The court declined to admit the proffered evidence in any
event. The court reasoned that the defense theory was speculative and irrelevant,
and that the potential for jury confusion and undue prejudice was great.
17
Defense counsel conceded that his expert witness did “not know how
intoxication would affect [Carol], because he didn’t personally know [Carol] or
her habits.” Instead, the expert would show “how a certain level of intoxication,
namely 0.26 blood alcohol, would affect people in general.”
37
Defendant claims here, as below, that the trial court abused its discretion in
not allowing him to prove that Carol was intoxicated according to Vehicle Code
standards, and that she therefore consented impulsively to sex. The error was
allegedly prejudicial because his pretrial statements about consent were otherwise
uncorroborated, and the prosecutor tried to minimize Carol’s intoxication in
closing argument.18
The trial court properly excluded defendant’s evidence on relevance
grounds. (See Evid. Code, § 210.) Nothing in the offer of proof showed how
Carol’s blood-alcohol content and intoxication affected her judgment and behavior
the night she was killed, or increased the chance that she did, in fact, consent to
vaginal and anal intercourse. Defendant essentially wanted jurors to speculate on
intoxication, inhibition, and impulse. Speculative inferences are, of course,
irrelevant. (People v. Kraft (2000) 23 Cal.4th 978, 1035.)
The trial court also did not abuse its broad discretion to the extent it
excluded the proffered evidence under Evidence Code section 352. (See People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10 [such rulings receive great deference on
appeal].) Defendant essentially sought to prove that people act under the influence
of alcohol in ways they do not ordinarily behave. This is common knowledge.
Hence, the proffered evidence would have had little impact on lay jurors, who
presumably know as well as any expert how to assess the effect of alcohol on
impulse and inhibitions. (See People v. Seaton (2001) 26 Cal.4th 598, 654-655
18
Defendant also claims, without meaningful or independent analysis, that the
ruling violated his federal and state constitutional rights to present a defense, to
effective representation, to due process and equal protection, and to a reliable
verdict. Though he invoked none of these theories below, we assume without
deciding that the claims have been preserved. (See Yeoman, supra, 31 Cal.4th 93,
117-118, 133.) However, as discussed above, no error of any kind occurred.
38
[upholding exclusion of expert testimony on how defendant’s blood-alcohol level
affected criminal intent since evidence “contained little if any information a
layperson would not know”].) Nothing in the instructions prevented the jury from
concluding that Carol’s intoxication caused her to consent to sexual intercourse.
Finally, defendant could not have been prejudiced by any error in excluding
evidence that a .26 blood-alcohol level makes people too drunk to drive and
lowers their sexual inhibitions. Carol died after a violent struggle with defendant,
a virtual stranger. The condition and position of her body bore the classic signs of
murder in the course of a forcible sexual assault. On the one hand, jurors knew
Carol had been drinking in the bar and was intoxicated. Indeed, counsel argued
that Carol was the perfect “date” because she was a promiscuous person whose
resistance had been lowered by alcohol. On the other hand, the evidence also
showed that defendant had recently forced another vulnerable victim to have sex,
and that he likely acted with similar intent here. Defendant’s insistence that he
and Carol fought violently about bar-hopping (not about sex) seemed inherently
implausible, particularly in light of other patent untruths about their encounter
(e.g., his denial of anal intercourse despite the presence of his semen in Carol’s
anal canal). Because evidence that he murdered her during a forcible rape and
sodomy was strong, the challenged ruling could not have affected the verdict.
C. Instructional Issues
1. Self-Defense and Imperfect Self-Defense
During a conference on jury instructions, the trial court advised counsel that
it planned to instruct on both first and second degree murder in connection with
the alleged murder of Carol. Defense counsel replied by requesting additional
instructions on (1) the lesser offense of voluntary manslaughter based on
“imperfect” self-defense (see People v. Flannel (1979) 25 Cal.3d 668, 674-680;
CALJIC No. 5.17), and (2) the defense of justifiable homicide based on “perfect”
39
self-defense. (See §§ 197, 198; CALJIC Nos. 5.12, 5.13.) For support, counsel
cited defendant’s statements to police that Carol drew a knife in his car, as well as
Dr. Cogan’s testimony about the cuts on Carol’s hand. Counsel theorized that
Carol tried to kill defendant with the knife, that she cut her hand when he grabbed
the knife, and that he strangled her in self-defense.
Finding this scenario unduly speculative, the court refused to instruct in the
requested manner. Thus, as relevant here, the jury received first degree murder
instructions under both premeditation and felony-murder-rape theories. The jury
also received second degree murder instructions reflecting both an express and
implied malice approach.
Defendant insists he offered valid theories of imperfect and perfect self-
defense at trial, and that the court erred in refusing such instructions. This ruling
purportedly violated his right to present a defense, to trial by jury, and to due
process under the federal Constitution.
An unlawful killing involving either an intent to kill or a conscious
disregard for life constitutes voluntary manslaughter, rather than murder, when the
defendant acts upon an actual but unreasonable belief in the need for self-defense.
(See People v. Blakeley (2000) 23 Cal.4th 82, 87-89, 91; People v. Barton (1995)
12 Cal.4th 186, 199; In re Christian S. (1994) 7 Cal.4th 768, 771, 783; People v.
Flannel, supra, 25 Cal.3d 668, 679.) In addition, a homicide is justifiable and
noncriminal where the actor possessed both an actual and reasonable belief in the
need to defend. (People v. Barton, supra, 12 Cal.4th at pp. 199-200; People v.
Flannel, supra, 25 Cal.3d at pp. 674-675.) In either case, “the fear must be of
imminent harm. ‘Fear of future harm — no matter how great the fear and no
matter how great the likelihood of the harm — will not suffice. The defendant’s
fear must be of imminent danger to life or great bodily injury.’ ” (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082, quoting In re Christian S., supra, 7
40
Cal.4th at p. 783.) The trial court need not give such instructions on request
absent substantial evidence to support them. (In re Christian S., supra, 7 Cal.4th
at p. 783; see People v. Flannel, supra, 25 Cal.3d at pp. 684-685 & fn. 12.)
Applying these principles here, no error occurred. Aside from the
inconsistent accounts defendant gave to police, there is no evidence Carol brought
a knife to the murder scene. According to her husband and other witnesses, Carol
never carried a knife when she went to the White Oak Inn. Also, the medical and
physical evidence showed that Carol — the victim of lethal force — struggled with
her attacker and suffered defensive knife wounds. Such evidence undermines the
present instructional claim by suggesting that defendant (not Carol) possessed a
knife, and that Carol (not defendant) defended against its use.
Even assuming the police interview constitutes substantial evidence that
Carol possessed and displayed a knife the night she was killed, there is no
substantial evidence of “actual fear of an imminent harm” sufficient to support
either imperfect or perfect self-defense instructions. (In re Christian S., supra, 7
Cal.4th 768, 783.) In fact, defendant’s statements affirmatively negate any such
fear or belief. Defendant told police that Carol pulled the knife from her purse
when a shadowy figure, perhaps her “old man,” appeared in front of the house.
Defendant also reported that Carol held the knife down by her side after they had
consensual sex and while they debated going to another bar. On the one hand,
defendant worried about Carol’s apparent plan to “hurt somebody.” On the other
hand, he maintained in the face of persistent police questioning that she showed no
interest in using the knife against him, and that she did not threaten him with it in
any way. This evidence shows that defendant did not perceive any imminent
threat of harm from the knife.
Thus, an essential element is missing from defendant’s claim that he could
not be convicted of murder because he acted either in self-defense or upon an
41
unreasonable belief in the need to do so. The trial court did not err in refusing to
instruct along such lines.
2. Reasonable and Mistaken Belief in Consent
In discussing felony-murder-rape instructions bearing on the first degree
murder charge, the trial court told counsel that it would not instruct on whether
defendant acted with an actual and reasonable, but mistaken, belief that Carol
consented to sexual intercourse. (See People v. Williams (1992) 4 Cal.4th 354,
360-361; People v. Mayberry (1975) 15 Cal.3d 143, 153-158; CALJIC No. 10.65.)
According to the court, no evidence supported such a defense, and only “straight
consent” could counter the prosecution’s claim that defendant forcibly raped
Carol. The court cited defendant’s statements to police that Carol agreed to have
vaginal sex, and that they only fought afterwards about going to another bar.
Defense counsel urged the court to change its mind, and to include CALJIC
No. 10.65 in its felony-murder-rape instructions. When asked to explain this
request, counsel pointed to Carol’s intoxicated state. Counsel theorized that,
because intoxication presumably impaired Carol’s ability to communicate,
defendant could have believed she consented to vaginal sex even if she did not.
However, the court found no evidentiary support for this view. The court returned
to its earlier theme that either defendant murdered Carol in the commission of a
forcible rape, or she actually consented to vaginal intercourse and clearly
communicated that fact to him.
Undaunted, defense counsel also asked for CALJIC No. 10.65 as part of the
sodomy-murder special-circumstance instructions. The court said it was not
prepared to discuss that matter, and that only the felony-murder-rape instructions
were under review at that time. A confusing exchange then occurred in which
counsel apparently agreed to save arguments concerning the special circumstance
allegation until later (“Okay”), but in which the court seemed to either misstate or
42
misunderstand counsel’s position concerning the requested instruction (“I agree
with you it doesn’t apply to the rape”). In any event, consistent with its own views
on the subject, the court declined to give CALJIC No. 10.65 as part of the felony-
murder-rape instructions. Regarding the latter theory of first degree murder, the
lone “consent” instruction the court ultimately gave was CALJIC No. 1.23.1,
which speaks in terms of a sexual act freely, voluntarily, and knowingly
performed. (See § 261.6.)
Defendant now asserts the trial court erred in rejecting his request for a
mistake of fact instruction as to the forcible rape of Carol. Defendant renews his
claim that Carol’s impaired state might have made it seem like she consented to
vaginal sex even if she did not. The court’s decision allegedly violated
defendant’s right to present a defense, to trial by jury, and to due process under the
federal Constitution.19
The mistake of fact defense reflected in CALJIC No. 10.65 has two
components. First, the defendant must have “honestly and in good faith, albeit
mistakenly, believed that the victim consented to sexual intercourse.” (People v.
19
The Attorney General argues that defendant “invited” any instructional
error, and is estopped from seeking reversal of the judgment on this ground.
Citing the trial court’s statement to this effect, the Attorney General claims
defense counsel “agreed” CALJIC No. 10.65 “should not be given as to rape.”
However, as explained above, the court appears to have misstated or
misinterpreted counsel’s stance. More to the point, the court’s decision to
withhold CALJIC No. 10.65 with respect to the felony-murder-rape theory was
not induced by defendant, but by the court’s unwavering belief that the instruction
lacked evidentiary support. (People v. Lang (1989) 49 Cal.3d 991, 1031-1032.)
There also seems to be no plausible tactical reason why defendant would forgo the
chance to escape a first degree murder conviction based on his reasonable belief in
consent as to rape. (See People v. Whitt (1990) 51 Cal.3d 620, 641.) Thus, we
reject the claim of invited error.
43
Williams, supra, 4 Cal.4th 354, 360-361. fn. omitted.) This subjective component
involves evidence of “equivocal conduct” by the victim that the defendant mistook
for consent. (Id. at p. 361.) Second, an objective component asks whether the
defendant’s mistaken belief regarding consent was “reasonable under the
circumstances.” (Ibid.) In order to give such an instruction upon request, the trial
court must find substantial evidence supporting each feature of the defense. (Ibid;
see People v. Maury, supra, 30 Cal.4th 342, 424 [sua sponte duty to so instruct].)
Any error was harmless. The trial court ultimately granted defendant’s
request for CALJIC No. 10.65 in connection with the sodomy-murder special-
circumstance allegation. This instruction said that defendant would lack the
requisite intent and would not be guilty of the crime of sodomy if he possessed “a
reasonable and good faith belief that [Carol] voluntarily consented to engage in
sodomy.” (CALJIC No. 10.65 (1990 rev.).) Jurors unanimously found the special
circumstance allegation true beyond a reasonable doubt. Hence, they necessarily
rejected mistake of fact as a defense to unlawful sodomy. Because the rape and
sodomy were closely connected in their commission, we conclude that, under any
applicable standard, the jury would not have reached a different conclusion under
CALJIC No. 10.65 as to first degree felony murder than it reached as to the
felony-murder special circumstance.
On this basis, we reject the claim of reversible instructional error.
3. “Sexual Intercourse”
The standard rape instruction given here (CALJIC No. 10.00), like the rape
statute itself (§ 261, subd. (a)), does not define “sexual intercourse.” Defendant
claims the trial court erred in not sua sponte defining the term as vaginal
penetration, and thereby violated his federal and state due process rights to a jury
trial on all elements of first degree felony murder. Defendant assumes jurors
mistakenly used evidence of anal penetration to find he raped Carol.
44
However, as defendant concedes, we have held that “sexual intercourse”
has a common meaning in the context of rape, that no technical elaboration is
required, and that the term can only refer to vaginal penetration or intercourse.
(People v. Holt (1997) 15 Cal.4th 619, 676; cf. People v. Hughes (2002) 27
Cal.4th 287, 349-350 [presuming jurors do not know legal definition of rape
where court failed to instruct on rape as target offense of burglary].) Also, no risk
of confusion exists where the court properly gives other instructions defining
sodomy as anal penetration. (People v. Holt, supra, 15 Cal.4th at p. 676; see
§ 286, subd. (a); CALJIC No. 10.20.) Thus, defendant could not have been
convicted of nonconsensual sexual intercourse and rape based on anal penetration
used to prove sodomy. We see no basis on which to distinguish or reconsider
People v. Holt, supra, 15 Cal.4th 619. We therefore decline to do so.
4. Consciousness of Guilt
The trial court gave CALJIC No. 2.03, which states that the defendant’s
“willfully false” statement about the charged crime may show “a consciousness of
guilt,” but is “not sufficient by itself to prove guilt.” Defendant claims this
instruction violated his federal and state constitutional rights (effective
representation, due process, impartial jury, and reliable verdict).
However, the instruction applied based on defendant’s inconsistent and
contradicted statements to police attempting to minimize involvement in the
capital crime. (People v. Turner (1994) 8 Cal.4th 137, 202 [instruction proper
where evidence supports it].) We also have upheld CALJIC No. 2.03 against all
other challenges raised here. The instructional language sufficiently protects
against conviction based on the defendant’s false statements or consciousness of
guilt alone. (People v. Kelly, supra, 1 Cal.4th 495, 531-532.) Nor is it
argumentative or biased in the prosecution’s favor. (People v. Bacigalupo (1991)
1 Cal.4th 103, 127-128.) Finally, insofar as the jury believed defendant lied about
45
the charged crimes, the instruction did not generate an irrational inference of
consciousness of guilt. (People v. Holt, supra, 15 Cal.4th 619, 678.) No error
occurred.
5. Circumstantial Evidence
Defendant argues that CALJIC No. 2.01, the standard instruction on
circumstantial evidence of guilt, violated his federal and state constitutional rights
(due process, trial by jury, privilege against self-incrimination, and reliable
verdict). He apparently faults the trial court for not deleting language barring the
jury from accepting an interpretation favorable to the prosecution and unfavorable
to the defense unless no other “reasonable” interpretation exists. (Ibid.) Though
defendant overlooks this fact, another instruction applied the same principles to
the special circumstance determination. (CALJIC No. 8.83.)
A long line of cases upholds these instructions against challenges
indistinguishable from those raised here. (E.g., People v. Snow (2003) 30 Cal.4th
43, 95-96; People v. Hughes, supra, 27 Cal.4th 287, 346-347; People v. Seaton,
supra, 26 Cal.4th 598, 667-668.) Consistent with these authorities, we reject
defendant’s assertion that jurors divorced the circumstantial evidence instructions
from other instructions giving defendant the benefit of any “reasonable doubt.” In
light of the reasonable doubt instructions, the circumstantial evidence instructions
did not impermissibly diminish the prosecution’s burden of proof or create a
mandatory presumption in favor of the prosecution’s theory of the case. Nor did
anything in the challenged instructions penalize defendant for not waiving his
privilege against self-incrimination and presenting a more favorable and
“reasonable” account at trial. Finally, there was no instructional error for the
prosecutor to exploit in this regard. He accurately described the circumstantial
evidence instructions for the jury.
46
Defendant also contends the trial court erroneously denied his request for
CALJIC No. 2.02, which applies the circumstantial evidence principles contained
in CALJIC Nos. 2.01 and 8.83 to the issue of mental state, including specific
intent. Under this view, the court should have at least given a modified version of
CALJIC No. 2.02 that deleted the language disputed above in connection with
other similar instructions. Defendant claims violations of his federal and state
constitutional rights to present a defense, to a jury trial, to due process, and to a
reliable verdict.20
The trial court followed settled law and properly concluded that the
requested instruction was subsumed in other instructions. “[T]here is no need to
give CALJIC No. 2.02 when the trial court gives a more inclusive instruction
based upon CALJIC No. 2.01, unless the only element of the offense that rests
substantially or entirely upon circumstantial evidence is that of specific intent or
mental state. [Citation.] Because mental state or specific intent was not the only
element of the case resting upon circumstantial evidence, the trial court did not
commit error by providing only the more inclusive instructions.” (People v.
Hughes, supra, 27 Cal.4th 287, 347; accord, People v. Cole (2004) 33 Cal.4th
20
The Attorney General insists defendant has forfeited his right to complain
about the failure to give CALJIC No. 2.02, because his request for that instruction
below did not embrace the modification he now claims should have been made.
However, the Attorney General concedes that defendant has not forfeited his
closely related claim that the trial court erred in giving an unmodified version of
CALJIC No. 2.01, even though defendant did not seek a similar modification at
trial. In making the latter point, the Attorney General relies on section 1259,
which allows appellate review of “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.” This statute seems to preserve all
challenges to the circumstantial evidence instructions raised here. (See People v.
Smithey (1999) 20 Cal.4th 936, 976, fn. 7.)
47
1158, 1221-1222; People v. Marshall (1996) 13 Cal.4th 799, 849.) Defendant
presents no compelling reason to reconsider this analysis, which applies under the
circumstances of the present case. We thus decline to do so.
D. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor made several statements during closing
argument that rendered the guilt trial fundamentally unfair (thus violating his
federal constitutional rights to due process and an impartial jury), and involved
deceptive and reprehensible conduct (thus violating state law). (See Darden v.
Wainwright (1986) 477 U.S. 168, 181; People v. Cole, supra, 33 Cal.4th 1158,
1202; People v. Farnam (2002) 28 Cal.4th 107, 167.) Such alleged acts of
misconduct, defendant urges, were prejudicial and compel reversal of the
judgment. As explained below, we disagree.
1. Alleged Misstatements of the Evidence
Defendant faults the prosecutor for conflating evidence of rape bearing on
first degree felony murder with evidence of sodomy used to prove the felony-
murder special circumstance. Defendant cites only one example, as follows: “[I]n
the autopsy report and the testimony itself, Dr. Cogan formulated the opinion of
not only the rape issue . . . but also sodomy.” (Italics added.) Defendant contends
this statement was false because the autopsy report mentioned only anal trauma
and sodomy, not genital trauma or rape.
Defendant’s failure to object at trial bars him from challenging this
comment for the first time on appeal. We agree with the Attorney General that the
alleged misconduct is not so serious that a curative admonition would have been
ineffective. (People v. Arias, supra, 13 Cal.4th 92, 159.)
We also reject the claim on the merits. The prosecutor did not state or
imply that proof of one sex crime constituted proof of the other sex crime, or that
the autopsy report alone reached any conclusions about rape as opposed to
48
sodomy. Instead, the prosecutor reasonably suggested that Dr. Cogan’s written
and testimonial opinions together showed that Carol was raped and sodomized
during the lethal attack. (See People v. Farnam, supra, 28 Cal.4th 107, 169
[noting prosecutor’s wide latitude to draw reasonable inferences from evidence].)
Furthermore, the prosecutor urged jurors to find rape and sodomy based on the
brutalized condition of Carol’s body, the sexually suggestive position in which it
was found, and the presence of defendant’s semen in both the vaginal and anal
canals. The prosecutor did not misstate the evidence of sexual assault, including
the contents of the autopsy report.
Defendant also claims the prosecutor misstated the evidence of Carol’s
intoxication. The relevant facts are as follows: Arguing that the prosecution did
not prove lack of consent to either vaginal or anal intercourse, defense counsel
portrayed Carol as a promiscuous woman who, though married, drank heavily and
sought “male attention” in bars. Counsel theorized that Carol’s intoxication
caused her to consent to sex and to provoke a fight out of anger or shame. In
rebuttal, the prosecutor urged jurors not to blame the victim. He first asked the
rhetorical question whether “somebody who has a drink or two gets to be raped
and sodomized and killed?” (Italics added.) Then, in describing Carol as a loving
wife and mother who fought to save her life, the prosecutor said she was “under
the influence a little” when she died. (Italics added.) Defense counsel
successfully objected and sought an admonition, as discussed below.
Defendant contends the prosecutor falsely portrayed Carol as only mildly
impaired, citing both comments italicized above. Assuming the claim has been
preserved for appeal, we conclude that, under any applicable standard, the jury
could not have “construed or applied the prosecutor’s remarks in an objectionable
fashion.” (People v. Arias, supra, 13 Cal.4th 92, 163.) The prosecutor prefaced
the first challenged remark with a reminder that Carol had a .26 blood-alcohol
49
reading and was intoxicated. Similarly, in sustaining defense counsel’s objection
to the second challenged remark, the trial court made clear that Carol was “under
the influence, period.” The prosecutor agreed, reminding jurors that the parties
had stipulated to Carol’s intoxication. Finally, the instructions advised jurors that
any stipulated fact was deemed conclusively proved, and that statements by the
attorneys were not evidence. Under the circumstances, no prejudicial misconduct
on victim intoxication occurred.
2. Alleged Misstatements of Law
Defendant insists the prosecutor repeatedly mischaracterized the crime of
first degree premeditated murder, as follows: The prosecutor initially suggested
that defendant could be convicted of first degree premeditated murder if he acted
with “intent to kill” and to eliminate Carol as a witness to her own sexual assault.
The trial court called both attorneys to the bench and ordered the prosecutor to
clarify that he needed to prove premeditation and deliberation in addition to intent
to kill. Later, the prosecutor said “all I have to [prove is]” that defendant
“inten[ded] to kill” Carol in order to cover up the rape and sodomy. The defense
objected and sought a curative admonition. As a result, both the court and the
prosecutor reminded jurors that first degree premeditated murder required
premeditation and deliberation as well as intent to kill. In keeping with this theme,
the prosecutor argued that even if the sexual attack on Carol was opportunistic,
defendant had decided to kill her by the time the struggle began in his car.
Defendant now claims the prosecutor misstated the law by excising
premeditation and deliberation from first degree premeditated murder. (See
People v. Hill (1998) 17 Cal.4th 800, 830-831 [prosecutor overlooked force or fear
element of robbery].) Assuming the claim has been preserved for appeal, the jury
could not have been misled as defendant suggests. The trial court took swift
action to correct any suggestion that first degree premeditated murder involved no
50
mental state other than intent to kill. The instructions also identified and defined
the elements of first degree premeditated murder, including the prosecution’s duty
to prove the “willful, deliberate and premeditated” nature of the killing. As noted
earlier, the jury knew statements made in closing arguments had no binding effect.
The instructions also told jurors to “follow the law” as stated by the court. We
assume the jury abided by the court’s admonitions and instructions, and thereby
avoided any prejudice. (People v. Jones (1997) 15 Cal.4th 119, 168.)
3. Reference to Penalty
In his rebuttal argument, the prosecutor urged jurors not to accept defense
counsel’s view of the evidence or to return a second degree murder verdict. The
prosecutor theorized that counsel wanted to avoid both a “penalty phase” and any
“special circumstance issue.” Counsel objected and requested a bench conference.
Anticipating counsel’s concerns, the trial court struck the quoted language from
the record. The court also told the jury not to consider “any issue of penalty phase
whatsoever.” The prosecutor agreed, explaining to the jury that only guilt was
then under review.
Contrary to what defendant now claims, no prejudice occurred. The
challenged reference was brief, fleeting, and mild. (See People v. Kipp (2001) 26
Cal.4th 1100, 1130.) The trial court told jurors to ignore the remark as soon as it
was made. They received another warning against considering penalty shortly
before guilt deliberations began. We can only assume jurors properly performed
their duty and followed their instructions in this regard.
4. Alleged Attacks on Counsel
Defendant contends the prosecutor repeatedly disparaged defense counsel
in rebuttal argument. The prosecutor told jurors to avoid “fall[ing]” for counsel’s
argument in favor of a second degree murder verdict, to view counsel’s argument
as a “ridiculous” attempt to allow defendant to “walk” free, to view counsel’s
51
statement as an “outrageous” attempt to demean the victim and treat her as a “Jane
Doe”, and to view counsel’s argument as a “legal smoke screen.”21
No misconduct occurred. This case does not involve such forbidden
prosecutorial tactics as falsely accusing counsel of fabricating a defense or
otherwise deceiving the jury. (People v. Bemore (2000) 22 Cal.4th 809, 846.)
The prosecutor simply used colorful language to permissibly criticize counsel’s
tactical approach. (Ibid.; see People v. Marquez (1992) 1 Cal.4th 553, 575-576
[upholding reference to defense as “smokescreen”].) These comments were
explicitly aimed at counsel’s closing argument and statement, rather than at him
personally. We see no improper attack on counsel’s integrity.
E. Cumulative Error
Defendant argues that the cumulative effect of all guilt phase errors
rendered the trial fundamentally unfair. However, we either have rejected his
claims and/or found any assumed error to be nonprejudicial on an individual basis.
Viewed as a whole, such errors do not warrant reversal of the judgment.
21
Regarding the Attorney General’s argument that defendant has forfeited all
of these claims, we reach the following conclusions. First, because defendant’s
objection to the “Jane Doe” remark was promptly overruled, his failure to request
a curative admonition seems justified. (People v. Hill, supra, 17 Cal.4th 800, 820-
821 [objection and/or request of admonition not required where futile or
impracticable].) Hence, this claim has been preserved for appeal. Second, when
the trial court sustained defendant’s objection to the “walk” comment, he should
have asked that jurors be admonished to disregard it — an omission that is
unexcused and that waives the claim. (Id. at p. 820) Third, defense counsel did
not object to any of the other alleged attacks on his integrity. Such claims of
misconduct clearly have been forfeited. (Ibid.)
52
V. PENALTY PHASE ISSUES
A. Defendant’s Forcible Sodomy of his Daughters
1. Background
A week or so before the cause was called to trial on July 7, 1992, the
prosecution advised the defense both orally and in writing about witnesses who
might describe criminal activity involving defendant’s use or threatened use of
violence under section 190.3, subdivision (b) (factor (b)). The list included
defendant’s daughter, S., and his ex-wife, Deborah. The prosecutor also disclosed
his ongoing investigation of a 1981 arrest in Texas for sexual assault. The search
had been hampered, he said, by the lack of any record of conviction and the
difficulty obtaining interstate police reports. While he did not know who accused
defendant of the Texas crimes, the prosecutor promised to “immediately” disclose
that information if it involved “the daughters or someone I believe I can use at the
penalty phase.”
On July 17, 1992, the day after the jury was sworn, the prosecutor told both
the court and counsel that he had just received police records faxed from Texas
confirming that defendant’s 1981 arrest involved rape and/or sodomy against both
daughters. The prosecutor said that he had not yet located either victim.
Nonetheless, he gave notice of his intent to introduce their testimony about violent
sex crimes prompting the 1981 arrest. The prosecutor gave the defense copies of
the faxed material.
Counsel responded by accusing the prosecutor of delay in disclosing the
circumstances of the Texas sex crimes. Counsel sought exclusion of this evidence
under both section 190.3 and due process principles, because adequate notice was
not given until after trial had begun. However, the motion failed. The court
determined that the prosecution had acted diligently and fulfilled all notice
requirements. Finding no unfair surprise, the court cited preliminary hearing
53
testimony in which Valery C. said that S. had mentioned being sexually abused by
defendant.
Shortly before the penalty phase, the court considered the admissibility of
the Texas sex crimes on grounds other than notice. The prosecutor said he had not
yet located S., and that only M. and Deborah might testify at trial. He called both
witnesses at the hearing as part of his offer of proof. (See Evid. Code, § 402.)
Specifically, M. testified that defendant threatened, frightened, and
sodomized both her and S. as children in Texas. According to M., the abuse of
both girls began when M. was five and ended when she was eight, and occurred
once or twice a week when their mother was not home. Deborah testified, in turn,
that M. told her and others about the abuse. The parties stipulated that these
accusations led to defendant’s 1981 arrest, and ended in a “no bill” grand jury
proceeding in Texas. It was further established by stipulation and judicial notice
that such a proceeding occurs when an insufficient number of grand jurors (i.e.,
fewer than nine of 12) find probable cause of a crime, and means the suspect is not
indicted or held for trial. Also, the grand jury may reconsider the case and issue
an indictment later.
The defense moved to exclude the Texas sex crimes on two grounds. First,
defendant claimed he had been acquitted by the grand jury, and that the evidence
was thus barred under factor (b). Second, defendant insisted the acts were stale
and prejudicial under Evidence Code section 352. He argued their admission
would be abusive and unfair.
These claims were rejected. The trial court declined to view the Texas
grand jury’s failure to indict as a “final adjudication on the merits.” The court also
refused to exclude the Texas sex crimes under Evidence Code section 352.
However, defendant was allowed to tell penalty jurors about the favorable
outcome of the Texas case.
54
As noted, M. and Deborah testified at the penalty phase consistent with
their accounts at the evidentiary hearing. The defense established that the Texas
grand jury did not indict defendant for sodomy against M. and S. An instruction
prevented penalty jurors from considering any violent criminal acts in aggravation
under factor (b) unless they were proven beyond a reasonable doubt.
On appeal, defendant contends use of the factor (b) sex crimes violated
state statutory law in several respects, and impaired his federal and state
constitutional rights to due process and a reliable verdict. We now address each
claim.22
2. Notice Requirements
Defendant argues here, as below, that the trial court should have excluded
the factor (b) sex crimes because the prosecution did not timely disclose certain
details before trial, like the victims’ identities. We disagree.
The defense generally must receive notice of aggravating evidence “prior to
trial.” (§ 190.3.) Depending upon the circumstances, we have defined this
concept to mean either before the case is called to trial (People v. Daniels (1991)
52 Cal.3d 815, 879) or before the start of jury selection. (People v. Johnson
(1993) 6 Cal.4th 1, 51.) In any event, notice given later in time does not require
exclusion of the evidence where it is newly discovered, and the delay is not
unreasonable, unexcused, or prejudicial. (People v. Smith (2003) 30 Cal.4th 581,
22
The Attorney General summarily contends that defendant failed to object
on due process grounds below, and that he therefore has forfeited any such
constitutional claim on appeal. However, as noted above, counsel explicitly raised
defendant’s due process rights when litigating notice under section 190.3. Similar
fair trial concerns accompanied all other timely defense objections to admission of
the factor (b) sex crimes. Hence, it appears defendant has preserved his present
claims insofar as they are framed in due process terms.
55
619.) At no point must the section 190.3 notice recite every circumstantial fact
surrounding a factor (b) crime. The purpose of the statute is met where the
defendant has a reasonable chance to defend against the charge. (People v. Arias,
supra, 13 Cal.4th 92, 166; People v. Pride, supra, 3 Cal.4th 195, 258.)
The trial court properly applied these rules here. The prosecution informed
the defense well before trial that at least one daughter, S., would describe factor
(b) crimes — crimes that logically included the incest S. had revealed to Valery C.
At the same time, the prosecution disclosed that the factor (b) evidence might
include sex crimes underlying defendant’s 1981 Texas arrest, and that his two
daughters might be the victims. While the prosecutor did not confirm the latter
fact until after the jury was sworn, he shared such information as soon as it arrived
from out of state. Only a few weeks passed between the first and second
notifications. Even the latter notice came near the start of trial, before any guilt
evidence was introduced. Thus, defendant was adequately apprised of the
prosecution’s intent to admit evidence of the sodomy involving his daughters.
3. Acquittal Defense
Defendant contends he was “prosecuted and acquitted” for the factor (b)
sex crimes in Texas, and that such acts were therefore barred under section 190.3.
According to this theory, the grand jury’s failure to indict defendant under a
probable cause standard constituted an implied determination that he was not
guilty beyond a reasonable doubt. Defendant is mistaken.
Section 190.3 expressly permits proof of any violent criminal activity,
whether or not it led to prosecution and conviction, except as to any offense
resulting in an acquittal. (People v. Melton, supra, 44 Cal.3d 713, 754.) We have
strictly limited this statutory notion of an acquittal to a judicial determination on
the merits of the truth or falsity of the charge. (People v. Bacigalupo, supra, 1
Cal.4th 103, 133-134; People v. Jennings (1991) 53 Cal.3d 334, 390.) Thus, an
56
acquittal after prosecution does not occur for purposes of section 190.3 where the
trial court dismissed the case under section 995 for lack of probable cause as to
guilt. (People v. Ghent (1987) 43 Cal.3d 739, 774.) We have reached the same
result even where a statutory bar prevents refiling of the dismissed charge.
(People v. Medina (1990) 51 Cal.3d 870, 907.)
Here, there was no judicial determination on the merits as to whether
defendant forcibly sodomized his daughters. The Texas proceeding involved a
discretionary charging decision by the grand jury. Indeed, it seems even further
removed from an “acquittal” than a section 995 proceeding in which pending
criminal charges are dismissed by a judge. Nothing in the grand jury proceeding
itself prevented defendant from being later charged, prosecuted, and convicted of
the same crimes. None of the features commonly associated with acquittals exists
here. (Cf. People v. Hatch (2000) 22 Cal.4th 260, 271 [double jeopardy principles
bar retrial if court finds evidence at trial was insufficient to support conviction as
matter of law].) The trial court properly reached the same result.
4. Evidence Code Section 352
According to defendant, Evidence Code section 352 virtually compelled
exclusion of the factor (b) sex crimes because they were too remote and
prejudicial, and because M.’s testimony was untrustworthy. However, the trial
court did not abuse its discretion in this regard.
The prosecution may offer, in aggravation, violent criminal acts committed
at any time in the defendant’s life. (People v. Rodrigues (1994) 8 Cal.4th 1060,
1158; People v. Bacigalupo, supra, 1 Cal.4th 103, 134.) The time gap between the
forced serial sodomy of defendant’s daughters and the present trial is not
unusually long by capital standards. (E.g., People v. Anderson (2001) 25 Cal.4th
543, 585, and cases cited.) Also, because factor (b) expressly permits admission
of criminal violence at the penalty phase, the trial court cannot exclude all such
57
evidence as unduly prejudicial. (Id. at p. 586.) This information shows the
defendant’s propensity for violence, and helps jurors decide whether he deserves
to die. (People v. Ray (1996) 13 Cal.4th 313, 349-350.) As for M.’s credibility,
this issue affects the weight, not the admissibility, of her factor (b) testimony. It
was for the jury to decide, based on proper instruction, whether she properly
recalled and recounted defendant’s violent acts. (People v. Catlin, supra, 26
Cal.4th 81, 172; People v. Anderson, supra, 25 Cal.4th at p. 587.)
B. Photograph of Carol while Alive
Near the start of the penalty trial, the court and counsel repeatedly
discussed the admissibility in the prosecution’s case-in-chief of two photographs
of Carol while she was alive. One depicted Carol and her husband Delbert
together, and the other depicted Carol with several family members. The
prosecution offered the pictures as victim impact evidence under Payne v.
Tennessee (1991) 501 U.S. 808 (Payne), and its progeny. The defense opposed
admission of the photographs on these grounds. Counsel argued that the photos
were irrelevant and prejudicial because they were taken at unknown times, and
because they did not show the kind of harm contemplated by the cases on which
the prosecution relied.
The trial court excluded the group family photo, but admitted the photo of
Carol and Delbert, marking it exhibit No. 85. The prosecution introduced the
latter item while Delbert was on the witness stand. In the process, the prosecution
asked one substantive question, “How did you feel about your wife?” As noted,
Delbert said she was his “whole life.”
Defendant argues here, much as below, that exhibit No. 85 was irrelevant.
Its admission purportedly violated his right to due process under the federal and
58
state Constitutions, and his right to a reliable verdict under the federal
Constitution. We disagree.23
In 1987, the United States Supreme Court held that the Eighth Amendment
barred evidence of a murder victim’s personal traits and the effect of the murder
on surviving relatives. (Booth v. Maryland (1987) 482 U.S. 496, 509 (Booth); see
South Carolina v. Gathers (1989) 490 U.S. 805, 811-812 [barring prosecutorial
argument on the matter].) Four years later, in Payne, supra, 501 U.S. 808, the
high court reversed itself, and held that the states could choose to admit evidence
of the “specific harm” the defendant had caused, to wit, the loss to society and the
victim’s family of a “unique” individual. (Id. at p. 825.) According to Payne, the
federal Constitution bars such evidence only if it is “so unduly prejudicial” as to
render the particular trial “fundamentally unfair.” (Ibid.)
Shortly after Payne, this court held that victim impact evidence is generally
admissible as a circumstance of the crime under section 190.3, factor (a). (People
v. Edwards (1991) 54 Cal.3d 787, 835-836.) Payne and Edwards apply even
where, as here, the murder occurred while Booth, supra, 482 U.S. 496, was in
effect. (People v. Brown (2004) 33 Cal.4th 382, 394-395.)
The challenged photograph helped illustrate Delbert’s expression of love
for Carol — testimony that defendant does not contest. As a whole, such evidence
implied that Carol’s loved ones suffered grief and pain over her loss. Thus, the
23
The Attorney General insists defendant moved to exclude this evidence
only under Evidence Code section 352 below, and that he therefore has forfeited
his constitutional claims. However, as noted above, the court and counsel debated
both the relevance and fairness of admitting exhibit No. 85. In so doing, they
referred to the same authorities that defendant cites here, including the
constitutional principles in Payne, supra, 501 U.S. 808. We therefore reject the
proposed procedural bar.
59
jury could consider this evidence in determining whether death or LWOP was the
appropriate punishment. (E.g., People v. Boyette (2002) 29 Cal.4th 381, 444
[allowing photos of murder victims taken at unspecified times].) Contrary to what
defendant implies, the photograph was not irrelevant or unduly prejudicial simply
because it did not depict Carol exactly as she appeared to defendant, or because he
knew nothing about her marriage. (People v. Pollock (2004) 32 Cal.4th 1153,
1183 [rejecting claim that victim impact evidence involves “only circumstances
known or reasonably foreseeable to the defendant at the time of the crime”].) No
error occurred.
C. Carol’s Intoxicated State
Before opening statements at the penalty phase, the defense moved to
explore the issue of Carol’s intoxication — a request the trial court had denied at
the guilt phase. Once again, counsel sought to present both argument and
evidence, including expert testimony, concerning the .08 blood-alcohol standard
used for drunk driving (see Veh. Code, § 23152, subd. (b)), and the general effect
of a .26 blood-alcohol level on sexual consent. Defendant claimed such evidence
would rebut any victim impact testimony that Carol was an ideal wife, and would
raise lingering doubt as to his guilt of forcible rape and sodomy.
Ruling on the issue, the trial court allowed defendant to tell jurors that
Carol was “highly intoxicated” when she left the bar with him. Also, if the
prosecution idealized Carol, the court promised to allow appropriate rebuttal,
apparently about her drinking and socializing in bars. However, alluding to its
guilt phase ruling, the court otherwise denied defendant’s motion on relevance
grounds. The court found nothing in the offer of proof linking Carol’s blood-
alcohol content and intoxication to her own sexual behavior. Later, before closing
arguments, the court denied another defense request to mention the .08 blood-
alcohol standard contained in the Vehicle Code.
60
Here, much as below, defendant maintains that evidence offered to explain
Carol’s intoxication was relevant and admissible for reasons given at the guilt
phase, and that the trial court continued to err insofar as it excluded such evidence
at the penalty phase. The argument in favor of admission is purportedly stronger
at the penalty phase, because of defendant’s federal constitutional right to present
relevant mitigating evidence in the form of lingering doubt as to his guilt of the
capital crime. Defendant claims prejudice insofar as the prosecution argued that
Carol’s intoxication did not cause her to consent to vaginal or anal sex with him.
Defendant’s claim fails at the threshold. A capital defendant has no federal
constitutional right to have the jury consider lingering doubt in choosing the
appropriate penalty. “Such lingering doubts are not over any aspect of [a
defendant’s] ‘character,’ ‘record,’ or a ‘circumstance of the offense.’ ” (Franklin
v. Lynaugh (1988) 487 U.S. 164, 174, quoting Eddings v. Oklahoma (1982) 455
U.S. 104, 110; accord, People v. Cox (1991) 53 Cal.3d 618, 676.) In any event,
nothing the high court has said about the constitutional significance of mitigation
makes such evidence more relevant, competent, and admissible at the penalty
phase than it is at the guilt phase. Evidence that is inadmissible to raise reasonable
doubt at the guilt phase is inadmissible to raise lingering doubt at the penalty
phase. (See McKoy v. North Carolina (1990) 494 U.S. 433, 440 [same test of
relevance applies to mitigation at penalty phase as in any other context]; People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 116 [trial court retains discretion at
penalty phase to exclude proffered mitigation as irrelevant or unduly prejudicial].)
Defendant’s evidence of victim intoxication at the penalty phase suffered
from the same logical gaps that justified its exclusion at the guilt phase. Nothing
showed that Carol’s blood-alcohol content and intoxication affected her
willingness to consent to sex. In seeking to create or reinforce lingering doubt, the
defense simply wanted jurors to assume that because Carol’s .26 blood-alcohol
61
content far exceeded the statutory limit for drunk driving, she must have consented
to sexual relations with defendant. Such speculative inferences would have added
nothing to what jurors presumably knew. No abuse of discretion occurred.
Even so, defendant could not have been prejudiced. The penalty evidence
showed that defendant threatened and sodomized his daughters while they were
quite young. The abuse lasted several years, and defendant repeatedly ignored the
victims’ cries of pain. More recently, defendant choked and raped Valery C. —
one of the convictions entered in the present case. At the time, Valery was a
pregnant teenager who had moved into defendant’s home, and who had never been
alone with him before. Again, defendant refused the victim’s pleas to stop.
Finally, with respect to the capital crime, the evidence showed that defendant
brutally raped, sodomized, and murdered Carol. Carol apparently died struggling
to save her own life, and likely experienced great pain. The crime occurred as
soon as defendant — who perceived Carol as drunk — got her alone in his car.
Thus, in choosing the appropriate punishment, jurors knew that defendant had a
long history of sexually assaulting females who were vulnerable or in his care, and
that his crimes had escalated in violence. The admission of evidence either
comparing Carol’s blood-alcohol level to the drunk driving standard or exploring
the general effect of intoxication on sexual impulse could not have produced a
more favorable sentence under any applicable standard.
D. Alleged Prosecutorial Misconduct
Defendant contends that prosecutorial misconduct occurred throughout the
penalty trial in violation of his federal constitutional rights to due process and an
impartial jury. He presents these alleged improprieties in the order they occurred
at trial, providing a brief analysis of each one. We first categorize, and then reject,
these claims.
62
1. Alleged Inflammatory Remarks
Defendant insists the prosecutor prejudiced the jury against him in the
following ways: (1) referring in opening statements to the aggravating evidence as
“shocking,” “vicious,” and “unspeakable”, (2) asking M. on direct examination to
describe defendant’s “bad” acts even though they might be “difficult” to discuss,
and (3) suggesting in closing argument that defense counsel should not have cross-
examined M. about the “tissues” she used to clean herself after being sodomized
as a child.
Defendant objected successfully to the foregoing remarks. However, he
failed to request a curative admonition below, and offers no excuse for not doing
so on appeal. We agree with the Attorney General that the claims are barred.
(People v. Hill, supra, 17 Cal.4th 800, 820.) Nevertheless, we see no harm even
assuming some misconduct occurred. None of the incidents seemed so serious or
inflammatory that they would prevent jurors from following their instructions and
ignoring material as to which an objection had been sustained. (People v. Padilla,
supra, 11 Cal.4th 891, 956-957.)
Defendant also claims the prosecutor improperly referred in closing
argument to Carol and Valery C. as innocent victims who suffered pain and
degradation at defendant’s hands. The prosecutor observed that, at the time of the
crimes, Carol was a wife and mother, and Valery was a pregnant and homeless
teenager.
First, defendant failed to object at trial. We therefore agree with the
Attorney General that defendant has forfeited the present claim. (People v. Cole,
supra, 33 Cal.4th 1158, 1233.)
Second, the challenged remarks constituted permissible victim impact
argument under Payne, supra, 501 U.S. 808, 825. As noted earlier, the prosecutor
was free to ask penalty jurors to consider any special traits that made the victims
63
vulnerable to attack, and the unique pain that either the victims or their families
experienced as a result of the charged crimes. The record supports the
prosecutor’s arguments. The trial was not fundamentally unfair in this regard.
(E.g., People v. Cole, supra, 33 Cal.4th 1158, 1233-1234 [allowing argument
about physical pain defendant inflicted on victim during surprise attack]; People v.
Boyette, supra, 29 Cal.4th 381, 444 [allowing argument about emotional grief and
loss experienced by victims’ families].)
2. Alleged Disregard of Evidentiary Rulings
Twice during his examination of M., the prosecutor asked about events not
disclosed during the in limine hearing concerning evidence of the factor (b)
crimes. One question asked whether M. had “tried to interrupt” a fight between
her mother and defendant, and the other question asked if she had heard a “taped
message” between defendant and her mother in the months before trial. When the
defense objected to the first question, the court summoned counsel to the bench to
discuss the matter. However, as soon as the second question was asked, the court
called a conference without any prompting from the defense. Counsel then
objected at the bench. Each time, the court reprimanded the prosecutor for trying
to admit aggravating evidence not included in his offer of proof. During the
second hearing, the court threatened to admonish the prosecutor in front of the jury
or to grant a mistrial if the problem recurred.
Defendant maintains the prosecutor improperly tried to elicit inadmissible
evidence in violation of a court ruling. (People v. Silva (2001) 25 Cal.4th 345,
373.) It appears the claim has been preserved for appeal even though no request
for an admonition was made at trial. The court made clear after sustaining the
second defense objection that it was not prepared to take any other curative action
at that time. (People v. Hill, supra, 17 Cal.4th 800, 820-821.) But, any
impropriety was not so egregious as to render the trial unfair or to prejudice
64
defendant. (People v. Silva, supra, 25 Cal.4th at p. 373.) The disputed questions
involved events that were extremely minor compared to the sodomy murder of
Carol, the rape of Valery C., and the forced serial sodomy of defendant’s
daughters. The court also intervened before M. could give any damaging details.
We reject the claim.
3. Alleged Misstatements of the Evidence
In closing argument, the prosecutor reminded jurors not to allow personal
feelings about capital punishment to interfere improperly with their oath and the
court’s instructions. To illustrate such bias, the prosecutor referred to defendant’s
ex-wife Deborah, who testified that she opposed death for defendant or anyone
else in his situation. The specific comment was that if Deborah had undergone
voir dire, “she would have been excused for cause.” The trial court overruled
counsel’s timely objection — an objection that the Attorney General reasonably
suggests was sufficient to preserve the claim for appeal. (See People v. Hill,
supra, 17 Cal.4th 800, 820-821.)
Defendant now contends the challenged remark was unfounded and
incorrect. However, even assuming the prosecutor misspoke for the reasons
defendant suggests, jurors were merely being asked to perform their lawful
sentencing function. Defendant could not have been prejudiced as a result.
Defendant next argues that the prosecutor incorrectly summarized the facts
concerning defendant’s sodomy of his daughters. First, the prosecutor said that
defendant began sodomizing S. when she was “three years old.” Second, the
prosecutor said that “each” girl was sodomized “twice weekly” for “[t]hree and a
half years.” Defendant suggests that even though these comments mirrored M.’s
testimony at the in limine hearing, they found no support in her trial testimony,
which was less specific in this regard.
65
Preliminarily, the trial court overruled two defense objections to the first
comment and told the prosecutor to continue with his argument. As the Attorney
General seems to concede, defendant’s failure to request an admonition does not
forfeit the claim, because the request would probably have been denied. (People
v. Hill, supra, 17 Cal.4th 800, 820-821.) However, defendant failed to object to
the second comment. We agree with the Attorney General that it cannot be
challenged for the first time here. (Id. at p. 820.)
On the merits, the challenged comments do not warrant reversal of the
judgment. First, as to when the molestation of S. began, M. testified at trial that
defendant started molesting her (M.) at age five, and that the abuse lasted three
and one-half years, ending when she was eight years old. M. also testified that
during the same three and one-half year period, S. was “typically” or “normally”
sodomized on the same occasions as M. (M. also saw S. being abused more than
once.) Hence, the evidence does not foreclose the inference that defendant started
molesting S. at the same time he started molesting M. Since S. was two years
younger than M., defendant’s sodomy of S. could have begun when she was three
years old. No factual misstatement occurred.
As to the second comment about the frequency of these acts, M. testified at
trial that they usually happened on Saturdays when her mother ran errands with R.
M. also described a typical encounter as one in which defendant first sodomized
M. and then sodomized S. Even assuming this testimony did not support the
prosecutor’s twice-weekly estimate as to each girl, we see no harm. M. indicated
that defendant regularly and brutally sodomized both daughters for several years
while they were young and vulnerable.
Defendant further contends no evidence supported the prosecutor’s
assertion in closing argument that defendant might commit sodomy in prison if
sentenced to LWOP. (See People v. Millwee (1998) 18 Cal.4th 96, 153 [argument
66
on future dangerousness proper where based on evidence of past crimes].)
However, even where a capital defendant has shown a preference for sexual
violence against women, it is not improper to suggest that he might prey on
inmates and/or prison staff. (People v. Welch, supra, 20 Cal.4th 701, 761; People
v. Bradford, supra, 15 Cal.4th 1229, 1380.) In any event, the trial court sustained
defense counsel’s objection and told jurors to disregard the reference to future
sodomy. We can only assume they followed the instruction, and did not allow this
isolated remark to affect the verdict.
4. Alleged Misstatements about Sentencing Discretion
In closing argument, the prosecutor emphasized the standard instruction on
sentencing discretion (CALJIC No. 8.88 (1989 rev.)), and used a chart of that
instruction as a visual aid. He said that if jurors decided that aggravation
substantially outweighed mitigation, then “it’s your responsibility, duty and
obligation pursuant to your oath, if you think it’s warranted,” to impose the death
penalty. He later made similar remarks about death as the “appropriate” penalty.
The prosecutor also described the aggravating and mitigating factors in detail (see
§ 190.3, factors (a)-(k)), including defendant’s character and background
evidence. (Id., factor (k).)
Defendant seems to contend that the prosecutor mischaracterized death as
automatic, mandatory, or nondiscretionary in the present case. As defendant
suggests, jurors are “free to reject death [based on] any constitutionally relevant
evidence or observation that it is not the appropriate penalty.” (People v. Brown
(1985) 40 Cal.3d 512, 540, fn. & italics omitted, revd. on other grounds sub nom.
California v. Brown (1987) 479 U.S. 538.) The law also does not “require any
juror to vote for the death penalty unless, upon completion of the [individual and
normative] ‘weighing’ process, he decides that death is the appropriate penalty
under all the circumstances.” (Brown, supra, 40 Cal.3d at p. 541.)
67
First, we agree with the Attorney General that because defendant failed to
raise any objection at trial, he has forfeited the present claim. (See People v.
Davenport (1995) 11 Cal.4th 1171, 1221.)
Second, no misconduct occurred. Consistent with applicable law and the
court’s instructions, the prosecutor made clear that in order to return a death
verdict, jurors must determine that aggravation substantially outweighed
mitigation, and that death was the appropriate penalty. Indeed, the prosecutor
tempered his “duty” reference by urging jurors to choose death only “if [they]
think it’s warranted.” Consistent with the court’s instructions, prosecutorial
argument clearly and correctly implied that sentencing involved a normative
weighing process, and that all relevant mitigation should be considered. Nothing
indicated that jurors lacked discretion in the manner defendant suggests.24
E. Cumulative Error
Defendant complains about the cumulative effect of alleged constitutional
defects at his penalty trial, including prosecutorial misconduct. We have
individually rejected his claims of error and/or found any assumed error to be
nonprejudicial. Such errors are no more compelling or prejudicial when
considered together. We decline to reverse the death judgment on this ground.
24
Defendant cites two other alleged improprieties in the prosecutor’s closing
argument, namely, that defense witnesses testified “under subpoena”, and that
defense counsel might refer to capital punishment as “state murder.” Counsel
successfully objected each time, and the prosecutor admitted in front of the jury
that no evidence supported the subpoena reference. Whatever the precise nature
of defendant’s vague misconduct claims, the remarks were brief and mild, and the
trial court immediately disapproved their use. No harm could have ensued.
68
F. Constitutionality of the Death Penalty Law
Defendant contends that, in many respects, the 1978 death penalty law
under which he was sentenced denied him a fair and reliable penalty determination
under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and under parallel
provisions of the California Constitution. As defendant concedes, we have
rejected these claims before. We do so again here.
1. Death Eligibility
The homicide and death penalty statutes adequately narrow the class of first
degree murderers eligible for the death penalty. The scheme is not overbroad
because it permits capital exposure for many first degree murders (People v.
Crittenden, supra, 9 Cal.4th 83, 154-155), including unintentional felony murder.
(People v. Anderson, supra, 25 Cal.4th 543, 601.) Nor are the special
circumstances overinclusive in number or scope. (People v. Ray, supra, 13
Cal.4th 313, 356.) Prosecutorial discretion to invoke the death penalty law does
not render its application unconstitutional. (People v. Maury, supra, 30 Cal.4th
342, 438.) The prosecutor has not been delegated the judicial sentencing function
in violation of separation of powers principles. (People v. Bemore, supra, 22
Cal.4th 809, 858.) Defendant has not shown on this record or through any
judicially noticeable means that his contrary claims are empirically accurate and
legally meritorious. (People v. Michaels, supra, 28 Cal.4th 486, 541.)
2. Core Adjudicative Principles
The trial court did not err in failing to modify the standard capital
sentencing instructions by requiring the jury to (1) find proof of aggravating
factors (in addition to other violent crimes) beyond a reasonable doubt, (2) find
that aggravation outweighs mitigation beyond a reasonable doubt, (3) find that
death is the appropriate penalty beyond a reasonable doubt, (4) reach unanimity as
to the aggravating factors, and (5) presume that LWOP is the appropriate sentence.
69
(People v. Jones, supra, 15 Cal.4th 119, 196; People v. Arias, supra, 13 Cal.4th
92, 190.) Contrary to what defendant implies, the death penalty scheme does not
violate either constitutional or statutory law insofar as it fails to allocate a burden
of proof, or establish a standard of proof, for finding aggravating and mitigating
circumstances and for selecting the appropriate penalty. (People v. Welch, supra,
20 Cal.4th 701, 767-768.) Recent high court decisions, such as Blakely v.
Washington (2004) 542 U.S. __ [124 S.Ct. 2531], Ring v. Arizona (2002) 536 U.S.
584, and Apprendi v. New Jersey (2000) 530 U.S. 466, do not require
reconsideration or modification of our long-standing conclusions in this regard.
(People v. Morrison (2004) 34 Cal.4th 698, 731; People v. Prieto (2003) 30
Cal.4th 226, 262-263, 275.)
3. Death Selection
The sentencing factors contained in section 190.3, particularly factor (a)
(circumstances of the capital crime) and factor (b) (other violent criminal activity),
are not impermissibly vague. (Tuilaepa v. California (1994) 512 U.S. 967, 975-
980, affg. People v. Tuilaepa, supra, 4 Cal.4th 569, 594-595.) These factors also
did not bias the jury in favor of death insofar as they allowed evidence of guilt to
be used as evidence in aggravation. (People v. Ray, supra, 13 Cal.4th 313, 358.)
In addition, the trial court did not err in failing to (1) delete assertedly inapplicable
sentencing factors, (2) instruct as to which sentencing factors are aggravating and
which are mitigating, (3) instruct that the absence of mitigation in certain statutory
categories was not aggravating, and (4) instruct on the definition of mitigation.
(People v. Hughes, supra, 27 Cal.4th 287, 404.) The standard instructions in
CALJIC No. 8.88 (1989 rev.) adequately advised jurors on the scope of their
discretion to reject death and to return an LWOP verdict. (People v. Rodrigues,
supra, 8 Cal.4th 1060, 1192; People v. Duncan (1991) 53 Cal.3d 955, 978-979.)
The trial court did not prevent meaningful appellate review by failing to require a
70
written statement of the jury’s findings and reasons for imposing a death sentence.
(People v. Davenport, supra, 11 Cal.4th 1171, 1232.) No instruction on the
meaning of LWOP was required. (People v. Holt, supra, 15 Cal.4th 619, 688-
689.)
4. Appellate Review
California’s automatic appeals process is constitutional even though it
affords no intercase proportionality review. (People v. Anderson, supra, 25
Cal.4th 543, 602; see Pulley v. Harris (1984) 465 U.S. 37, 50-51.) Although his
death sentence is theoretically subject to intracase proportionality review (People
v. Anderson, supra, 25 Cal.4th at p. 602), defendant apparently raises no such
claim. His sentence is not grossly disproportionate to his moral culpability in any
event. In addition, the appellate review process is not impermissibly influenced by
political considerations in capital cases. (People v. Kipp, supra, 26 Cal.4th 1100,
1140-1141.)
G. Determinate Sentencing
After denying the automatic motion to modify the death verdict and
pronouncing judgment on the capital count (§ 190.4, subd. (e)), the trial court
imposed a determinate sentence on the noncapital count. (See § 1170, et seq.)
Consistent with the probation report, which it read solely for noncapital sentencing
purposes, the court chose the upper term of eight years for the rape of Valery C.
(See § 264, subd. (a).) The prison term was then made consecutive to the death
sentence. As explained further below, the court relied on “both the youth and
vulnerability of the victim” in making these decisions. (Italics added.) However,
the court stayed execution of the determinate term because it had relied, in part, on
the facts of the noncapital crime in refusing to modify the death verdict.
Defendant insists we must reverse and remand for resentencing because the
trial court cited insufficient reasons to support its sentencing choices. Defendant
71
did not raise this claim below. However, his hearing predated our decision in
People v. Scott (1994) 9 Cal.4th 331, 353, 357-358, which imposed a prospective
contemporaneous objection requirement on complaints like those raised here. We
therefore agree with the parties that the claim has not been forfeited, and that it
may be raised for the first time on appeal. (People v. Davis, supra, 10 Cal.4th
463, 552.) Nevertheless, it fails on the merits.
Under the statutes and rules in existence at the time of defendant’s hearing,
the trial court was required to state its reasons for making discretionary sentencing
choices. Two such choices included imposition of the upper term and the decision
to make one sentence consecutive to another. In deciding to aggravate a sentence
in this manner, the court was prohibited from using the same reason more than
once, and was required to cite different circumstances to support each choice.
(See § 1170, subds. (b) & (c); People v. Scott, supra, 9 Cal.4th 331, 349-350.)
The record shows compliance with these rules. The trial court cited two
factors in aggravation and no factors in mitigation when sentencing defendant for
the forcible rape of Valery C. First, the crime seemed aggravated in the court’s
view because the victim was relatively young, i.e., 16 years old. Second, the court
found the victim to be “particularly vulnerable.” The court explained at the
hearing to modify the death verdict that Valery was pregnant, that she depended
on defendant for shelter, and that she had no other apparent place to go. Contrary
to what defendant claims, a crime victim can be deemed vulnerable in this context
for reasons not based solely on age, including the victim’s relationship with the
defendant and his abuse of a position of trust. (People v. Clark (1990) 50 Cal.3d
583, 638.) The court properly applied these principles. The record supports the
determinate sentence challenged here.
72
VI. DISPOSITION
We affirm the judgment in its entirety.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
73
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Stitely
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S028970
Date Filed: March 21, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Howard J. Schwab
__________________________________________________________________________________
Attorneys for Appellant:
Joel Levine and Jo Anne Keller, under appointments by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Peggie Bradford Tarwater, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Joel Levine
695 Town Center Drive, Suite 875
Costa Mesa, CA 92626
(714) 662-4462
Jo Anne Keller
P.O. Box 8032
Berkeley, CA 94707
(510) 558-0459
Peggie Bradford Tarwater
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 620-6097
Opinion Information
| Date: | Docket Number: |
| Mon, 03/21/2005 | S028970 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Peggie Bradford Tarwater, Deputy Attorney General 300 South Spring St., 5th Floor Los Angeles, CA |
| 2 | Stitely, Richard (Appellant) San Quentin State Prison Represented by Joel Levine Attorney at Law 695 Town Center Dr., Suite 875 Costa Mesa, CA |
| 3 | Stitely, Richard (Appellant) San Quentin State Prison Represented by Jo Anne Keller Attorney at Law P. O. Box 8032 Berkeley, CA |
| Disposition | |
| Mar 21 2005 | Opinion: Affirmed |
| Dockets | |
| Sep 14 1992 | Judgment of death |
| Sep 28 1992 | Filed certified copy of Judgment of Death Rendered September 14, 1992. |
| Dec 9 1997 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Joel Levine is hereby appointed as lead counsel, and Jo Anne Keller is appointed as associate counsel, to represent appellant on his automatic appeal now pending in this court, including any related habeas corpus proceedings. |
| Jan 22 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Jan 23 1998 | Extension of Time application Granted To March 30,1998 To request Record correction |
| Mar 30 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Mar 31 1998 | Extension of Time application Granted To Applt To 5-29-98 To request Corr. of Record. |
| May 28 1998 | Application for Extension of Time filed By Applt to request Record correction |
| Jun 2 1998 | Extension of Time application Granted To 7-28-98 To request Record correction |
| Jul 24 1998 | Received copy of appellant's record correction motion appellant's request for correction, for additional record and to examine sealed documents and transcripts (9 pp.) |
| Sep 2 1998 | Compensation awarded counsel |
| Sep 29 1998 | Compensation awarded counsel |
| May 6 1999 | Filed: Applt's Applic. for Reversal of Trial Court's Ruling on Applt's request to Make Paper Exhibits Part of the C.T. on Appeal. |
| May 28 1999 | Opposition filed By Resp to Applt's Applic. for Reversal of Trial Court's Ruling on Applt's request to Make Paper Exhibits Part of the C.T. on Appeal. |
| Sep 22 1999 | Order filed: "Appellant's Application for Reversal of Trial Court's Ruling on Appellant's Request to Make Paper Exhibits Part of the Clerk's Transcript" is denied. |
| Feb 24 2000 | Record on appeal filed C-16 (3,781 Pp.) and R-29 (2,488 Pp.) Including Material Under Seal; Clerk's Transcript includes 3,279 pages of Juror Questionnaires. |
| Feb 24 2000 | Appellant's opening brief letter sent, due: 4/4/2000 |
| Mar 15 2000 | Compensation awarded counsel Atty Levine |
| Mar 29 2000 | Filed: 2 Vols. of R.T. (190 Pp.) |
| Mar 31 2000 | Application for Extension of Time filed To file Aob. |
| Apr 7 2000 | Extension of Time application Granted To 5/4/2000 To file Aob. |
| Apr 13 2000 | Order filed: Order filed on 4/7/2000 Is Amended To: Applic of Applt to Serve and file AOB Is extended to and Including 6/5/2000. |
| Jun 1 2000 | Application for Extension of Time filed to file AOB. |
| Jun 8 2000 | Extension of Time application Granted To 8/7/2000 To file Aob. |
| Aug 7 2000 | Application for Extension of Time filed to file AOB. (third request) |
| Aug 8 2000 | Extension of Time application Granted To 10/6/2000 to file AOB. |
| Aug 9 2000 | Counsel's status report received (confidential) from atty Keller. |
| Sep 27 2000 | Counsel's status report received (confidential) from atty Keller. |
| Oct 10 2000 | Application for Extension of Time filed To file AOB. (4th request) |
| Oct 17 2000 | Extension of Time application Granted To 12/5/2000 to file AOB. |
| Dec 4 2000 | Application for Extension of Time filed To file AOB. (5th request) |
| Dec 6 2000 | Counsel's status report received (confidential) from atty Keller. |
| Dec 8 2000 | Extension of Time application Granted To 2/5/2001 to file AOB. |
| Feb 2 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| Feb 9 2001 | Counsel's status report received (confidential) from atty Keller. |
| Feb 16 2001 | Extension of Time application Granted To 4/6/2001 to file AOB. |
| Apr 4 2001 | Application for Extension of Time filed To file AOB. (7th request) |
| Apr 11 2001 | Counsel's status report received (confidential) from atty Keller. |
| Apr 23 2001 | Filed: Supplemental decl. in support of application for ext. of time to file AOB. |
| Apr 24 2001 | Extension of Time application Granted To 6/5/2001 to file AOB. |
| Jun 5 2001 | Application for Extension of Time filed To file AOB. (8th request) |
| Jun 21 2001 | Extension of Time application Granted to 8-6-2001 to file AOB. No further extensions of time are contemplated. |
| Jun 22 2001 | Counsel's status report received (confidential) |
| Jul 19 2001 | Application to file over-length brief filed (285 Pp. AOB submitted under separate cover) |
| Jul 20 2001 | Order filed: Appellant's application to file a brief in excess of the page limit is granted. |
| Jul 20 2001 | Appellant's Opening Brief filed. (285 Pp.) |
| Aug 8 2001 | Compensation awarded counsel Atty Levine |
| Aug 10 2001 | Application for Extension of Time filed to file respondent's brief. (1st request) |
| Aug 14 2001 | Extension of Time application Granted To 10/18/2001 to file resp.'s brief. |
| Sep 10 2001 | Motion filed by respondent to unseal transcript of in camera proceedings. |
| Sep 21 2001 | Counsel's status report received (confidential) |
| Sep 27 2001 | Order filed: Respondent's "Motion to Unseal Transcript of In Camera Proceedings," filed on 9-10-2001, is granted. The clerk is directed to unseal Volume 10 (July 27, 1992), pages 1078 to 1085, of the reporter's transcript on appeal, and is further directed to transmit a copy thereof to respondent. |
| Oct 12 2001 | Application for Extension of Time filed to file resp's brief. (2nd request) |
| Oct 17 2001 | Extension of Time application Granted To 12/17/2001 to file resp.'s brief. Counsel anticipates filing brief on or before 1/16/2002. |
| Nov 20 2001 | Counsel's status report received (confidential) |
| Nov 26 2001 | Counsel's status report received (confidential) (supplemental) from atty Levine. |
| Dec 11 2001 | Request for extension of time filed to file resp's brief. [3rd request] |
| Dec 21 2001 | Extension of time granted To 2/15/2002 to file resp.'s brief. Only one further extension totaling 30 additional days is contemplated. |
| Jan 16 2002 | Counsel's status report received (confidential) from atty Levine. |
| Feb 7 2002 | Request for extension of time filed to file resp's brief [4th request] |
| Feb 14 2002 | Extension of time granted To 3/18/2002 to file resp.'s brief. Dep. AG Tarwater anticipates filing the brief by 3/17/2002. No further extension is contemplated. |
| Mar 14 2002 | Counsel's status report received (confidential) from atty Levine. |
| Mar 14 2002 | Respondent's brief filed (222 pp.) |
| Apr 2 2002 | Request for extension of time filed To file reply brief. (1st request) |
| Apr 4 2002 | Extension of time granted To 6/3/2002 to file reply brief. |
| May 13 2002 | Counsel's status report received (confidential) |
| Jun 5 2002 | Request for extension of time filed To file reply brief. (2nd request) |
| Jun 10 2002 | Extension of time granted To 8/2/2002 to file reply brief. Counsel anticipates filing that brief by early 12/2002. Two further extensions totaling 120 additional days are contemplated. |
| Jul 15 2002 | Counsel's status report received (confidential) from atty Levine. |
| Aug 1 2002 | Request for extension of time filed to file appellant's reply brief. (3rd. request) |
| Aug 8 2002 | Extension of time granted To 10/1/2002 to file appellant's reply brief. After that date, only one further extension totaling 60 additional days is contemplated. Extenstion is based upon the representation of counsel Joel Levine that he anticipates filing that brief by early 12/2002. |
| Sep 13 2002 | Counsel's status report received (confidential) from atty Levine. |
| Sep 30 2002 | Request for extension of time filed To file appellant's reply brief. 4th request) |
| Oct 2 2002 | Extension of time granted To 12/2/2002 to file appellant's reply brief. After that date,no further extension is contemplated. Extension is granted based upon counsel Joel Levine's representation that he anticipates filing that brief by 12/1/2002. |
| Oct 29 2002 | Compensation awarded counsel Atty Levine |
| Nov 13 2002 | Counsel's status report received (confidential) |
| Nov 26 2002 | Appellant's reply brief filed (78 pp.) |
| Jan 9 2003 | Counsel's status report received (confidential) |
| Mar 7 2003 | Counsel's status report received (confidential) |
| May 9 2003 | Counsel's status report received (confidential) |
| May 15 2003 | Related habeas corpus petition filed (concurrent) no. S115894. |
| Jun 5 2003 | Filed: Declaration of attorney Joel Levine (confidential). |
| Jun 9 2003 | Compensation awarded counsel Atty Levine |
| Jun 9 2003 | Compensation awarded counsel Atty Levine |
| Sep 21 2004 | Exhibits requested People's: 17, 18, 46, 47, 48, 52, 61, 62, 79, 80, 81 and 85. |
| Sep 28 2004 | Exhibit(s) lodged People's: 17, 18, 46, 47, 48, 52, 61, 62, 79, 80, 81 and 85. |
| Nov 19 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the January calendar, to be held the week of January 3, 2005, in San Francisco. 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. |
| Dec 1 2004 | Change of contact information filed for: attorney Levine. |
| Dec 8 2004 | Case ordered on calendar 1/4/05 @1:30pm - San Francisco |
| Dec 21 2004 | Filed letter from: appellant's counsel, dated 12/17/2004, re focus issues for oral argument, request to be represented by two counsel at argument and request for 45 minutes for argument. |
| Dec 21 2004 | Filed letter from: respondent, dated 12/16/2004, re focus issues for oral argument. |
| Dec 22 2004 | Order filed Appellant's request for permission to be represented by two counsel at oral argument is granted. |
| Dec 30 2004 | Filed letter from: appellant's associate counsel, dated 12/29/2004, re focus issues for oral argument. |
| Jan 4 2005 | Cause argued and submitted |
| Jan 24 2005 | Compensation awarded counsel Atty Levine |
| Mar 21 2005 | Opinion filed: Judgment affirmed in full Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Brown, & Moreno, JJ. |
| Apr 21 2005 | Remittitur issued (AA) |
| Apr 28 2005 | Exhibit(s) returned People's 17, 18, 46, 47, 48, 52, 61, 62, 79, 80, 81, and 85. |
| Apr 28 2005 | Received: acknowledgment of receipt of remittitur. |
| May 9 2005 | Received: acknkowledgment of receipt of exhibits. |
| May 13 2005 | Received: acknowledgment of receipt of remittitur. |
| May 25 2005 | Order filed (150 day statement) |
| Jun 24 2005 | Application to stay execution filed application for emergency stay of execution of sentence of death. |
| Jun 28 2005 | Received: letter from U.S.S.C., dated 6/22/2005, advising cert petition filed as No. 04-10679. |
| Jul 20 2005 | Stay of execution order filed Application for emergency stay of execution of sentence is GRANTED. |
| Jul 21 2005 | Order filed The order filed on July 20, 2005, granting the stay of execution of sentence of death is amended to read, in its entirety; The "Application for Emergency Stay of Execution of Sentence of Death," filed on June 24, 2005, is granted. Execution of the judgment of death entered against Richard Stitely by the Superior Court of Los Angeles County and affirmed by this court on March 21, 2005 (35 Cal.4th 514), is hereby stayed pending final determination of (1) the petition for certiorari pending in the United States Supreme Court (04-10679) and (2) the petition for writ of habeas corpus pending in this court (S115894). |
| Oct 3 2005 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Jul 20 2001 | Appellant's Opening Brief filed. (285 Pp.) |
| Mar 14 2002 | Respondent's brief filed |
| Nov 26 2002 | Appellant's reply brief filed |
