Supreme Court of California Justia
Docket No. S029476
People v. Boyer

Filed 5/11/06



Plaintiff and Respondent,






Defendant and Appellant.

Super. Ct. No. C-51866

In 1984, a jury convicted defendant Richard Delmer Boyer of the first

degree murders (Pen. Code, §§ 187, subd. (a), 189)1 and robberies (§ 211) of

Francis and Aileen Harbitz. An allegation that defendant used a deadly weapon, a

knife, in each of the offenses was sustained. (§ 12022, former subd. (b), see now

subd. (b)(1).) Under the 1978 death penalty law, special circumstances of multiple

murder (§ 190.2, subd. (a)(3)), and robbery murder (id., former subd. (a)(17)(i),

see now subd. (a)(17)(A)) were found true.2 After a penalty trial, the jury

sentenced defendant to death.

We reversed the 1984 guilt and penalty judgments. We concluded that

defendant’s confession to the police in a custodial setting was obtained in violation

of the Fourth Amendment and Miranda v. Arizona (1968) 384 U.S. 436, and that


All further unlabeled statutory references are to the Penal Code.


It was necessary to retry the guilt and special circumstance issues after the

original guilt jury could not reach a verdict, resulting in a mistrial.


admission of the confession in evidence at his trial was prejudicial on the issue of

guilt. However, on the record before us, we saw no basis to conclude that other

evidence admitted against him was tainted by the Fourth Amendment and

Miranda violations, such that it could not be used in any retrial. (People v. Boyer

(1989) 48 Cal.3d 247 (Boyer I).)

After a retrial, in which defendant’s confession was not admitted, a jury

again found defendant guilty of the robberies and first degree murders of the

Harbitzes. A knife-use allegation was again sustained for each crime. The jury

found true, as special circumstances, that each murder was committed in the

course of a robbery, and that defendant was convicted of more than one murder in

the proceeding. Pursuant to the jury’s penalty verdict, defendant was again

sentenced to death.

This appeal is automatic. We will affirm the guilt and penalty judgments in



A. Prosecution case.

In December 1982, retirees Francis Harbitz, age 68, and his wife Aileen

Harbitz, age 69,3 were stabbed to death in their Fullerton home. Their bodies were

discovered on the late evening of December 12, 1982, by their son William, who

came to check on them after attempts to reach them by telephone during that day

had failed. William had last seen and spoken to his parents on December 5, 1982.

A friend of Aileen’s had telephoned once on the evening of December 7,

and several times on the morning of December 8, but got no answer. Later on

December 8, the friend went to the Harbitz residence, knocked, got no response,


In Boyer I, we mistakenly spelled this victim’s first name “Eileen.” (Boyer

I, supra, 48 Cal.3d 247, 256.)


and slipped a note under the door. Papers with handwriting were found on the

floor inside the front door on the night of December 12.

When William entered the house, he found Francis’s body sitting upright

against a bloody hallway wall. Aileen’s was lying, surrounded by blood, on the

floor of the living room. Francis had sustained some 24 stab wounds to his neck,

upper and lower chest, and back. Three of his ribs were fractured by a knife

entering his back, and he also suffered a broken arm. One of the neck wounds

severed his left carotid artery. Three chest wounds penetrated his heart, and one of

these also cut his ascending aorta. Francis bled to death from the wounds to his

heart and aorta. Aileen suffered 19 stab wounds to her neck, chest, abdomen, and

back. One abdominal entry wound transected her left lung four times, indicating

the assailant repeatedly withdrew the knife and reinserted it in the same track. A

wound beneath her left ear penetrated to her spine. One of the chest wounds

transected her ascending aorta. She bled to death as a result.

At the crime scene, a purse found in the kitchen contained no wallet. Later,

at the crime lab, two $50 bills were found folded inside a smaller container at the

bottom of this purse. A second purse, found in a back bedroom, contained a total

of $40 in cash. In Francis’s bedroom, a wallet in a dresser drawer contained

approximately $260 in cash. The premises showed no signs of forced entry or


On the night William discovered his parents’ bodies, he mentioned

defendant’s name to the police. William had met defendant three years earlier,

when defendant lived near William and his wife in a Fullerton apartment complex

known as the International Hotel. William introduced defendant to his parents,

and defendant had done yard work for the senior Harbitzes. Defendant’s

relationship with the victims was cordial, and they had lent him money.


According to William, defendant wore a “standard buck knife” in a sheath on his

belt “all the time.”

William had recently moved from the International Hotel, without telling

defendant, but had kept his old telephone number. William had not seen

defendant for six months to a year. During this period, defendant had called three

times, though William did not speak to him personally. Defendant telephoned

William again on December 8, 1982, at which time they engaged in small talk.

On December 14, 1982, police searched the El Monte residence defendant

shared with his girlfriend, Cynthia Cornwell. Items retrieved from the premises

included a pair of Levi’s, a buck knife, and a sheath. The burned remnants of a

jacket were found in a hibachi on the kitchen stove of the El Monte house. At

some point, police also recovered Aileen’s wallet from a sewer.

The Levi’s had a hole in the left knee and also contained three bloodstains.

One stain, near the hole, was consistent with defendant’s blood, but not with the

victims.’ A second stain was consistent with Francis’s blood, but not with

Aileen’s or defendant’s. A third stain was consistent with Aileen’s blood, but not

with Francis’s or defendant’s. The buck knife had a spot of human blood, but the

sample was too small to analyze for identity. The victims’ wounds could have

been inflicted with the buck knife, but not with a kitchen knife found on a counter

in the Harbitzes’ home.

John Kennedy testified under a grant of immunity as follows: In December

1982, he lived in Temple City, near El Monte. On December 7, 1982, Kennedy,

driving his mother’s car, arrived at the El Monte house shared by defendant and

Cornwell between 4:30 and 5:00 p.m. Defendant asked for a ride to his parents’

house so he could pick up money his father had received for selling one of his

guns. After 45 minutes or so, they departed. It was beginning to get dark.

Defendant was walking and talking normally. He was wearing a blue jacket.


Kennedy drove. They first stopped to buy a quarter-gram of cocaine from a

dealer Kennedy knew, with $25 Kennedy had borrowed from his brother for that

purpose. They injected the cocaine. Typically, a cocaine injection produced a

five-minute “rush” and a one-hour “high.”

After they consumed the cocaine, defendant directed Kennedy on a 10-

minute drive to defendant’s parents’ house. Kennedy stayed in the car. Defendant

went inside for 15 minutes. He returned with a tire and a foam mattress and said

his father had given him a check.

Next, defendant directed Kennedy a short distance to an apartment

complex, where defendant tried and failed to obtain a marijuana cigarette.

Defendant then had Kennedy drive to the International Hotel in Fullerton to find

“Bill.” This trip took about 20 minutes. When they arrived, both men went to an

apartment door, and defendant knocked. A young woman answered and said no

Bill lived there.

Remarking that Bill must have moved back with his parents, defendant told

Kennedy to drive to another location. Defendant first suggested they were headed

to “some dope dealer’s house,” but when they arrived at their destination—three

or four miles from the International Hotel— defendant said he was going “to Bill’s

parents’ house.” Darkness had fallen. Defendant directed Kennedy where to park.

Kennedy remained in the car. Defendant got out, walked around a corner, and

disappeared from view. He was acting normally.

After 45 minutes, defendant returned. He seemed to be walking normally,

and was carrying a towel. At that moment, a patrol vehicle with red lights on its

roof approached. Defendant walked to the back of Kennedy’s car and began

wiping the rear window with the towel. After the patrol car passed, defendant got

in and instructed Kennedy “to take off calmly, not to attract any attention.”


Kennedy did not know where they were, but, following defendant’s

directions, he drove back to the freeway. Defendant was “talk[ing] okay.” As

they drove, Kennedy saw defendant apply the towel to his left knee. Defendant

referred to “dope dealers that don’t have no dope,” and said “that he had to hurt

‘em.” Defendant indicated he himself had been stabbed.

Once they were on the freeway, Kennedy saw defendant going through two

wallets. Defendant said he needed to find a bushy area beside the freeway. As

they passed such an area, between the Durfee and Peck Road offramps of

Interstate 10 near El Monte, defendant threw out one of the wallets. He discarded

the second wallet in “a gutter, a sewer” beside the Temple City Boulevard

offramp. He instructed Kennedy not to tell anybody what had happened that


When they arrived back at the El Monte house, Kennedy saw the stab

wound in defendant’s knee. Defendant and Cornwell went into the bathroom to

tend the wound. At the house, Kennedy noticed defendant was wearing his buck

knife in a sheath on his waist. Before leaving, Kennedy saw this knife lying on a

dresser, blade open. There was blood on the knife.

To Kennedy’s knowledge, defendant injected cocaine three or four times a

week. Kennedy had, on occasion, seen defendant smoke phencyclidine (PCP) and

marijuana, and had observed him ingest cocaine and alcohol in combination.4


With respect to Kennedy, the parties stipulated that (1) in his police

interviews, including the interview concerning his immunity agreement, Kennedy
never mentioned injecting cocaine with defendant on December 7, 1982, (2) in his
original interview, Kennedy claimed defendant borrowed Kennedy’s car between
5:00 and 6:00 p.m. on December 7, 1982, and returned it between 7:00 and 7:30
p.m., and (3) at the preliminary hearing (preceding the 1984 trial), Kennedy
described injecting cocaine with defendant as they drove around together on the
evening of December 7, 1982.


Cynthia Cornwell testified under a grant of immunity as follows: In

December 1982, she, defendant, and her three children were living in a house on

Gibson Street in El Monte. Defendant and she were boyfriend and girlfriend.

Cornwell’s welfare check had been substantially cut when defendant moved in.

They were extremely poor and needed money for “everything.”

On the afternoon of December 7, 1982, Kennedy came to the house.

Sometime thereafter, Kennedy and defendant left together. Defendant was

wearing a blue jacket. Before departing, he said he was going to try to borrow

money from his parents. He asked Cornwell for $30, which she knew was the

price of cocaine. There was no money to give him.

When defendant and Kennedy returned, defendant was limping, and there

was blood on his knee. Cornwell asked where defendant had gone, what had

happened, and whether he had gotten any money. Defendant answered that he got

no money; he had “tried going to a loan shark and got in an argument with him,

and that’s what happened to his knee.” Defendant gave Cornwell $10. The two

went into the bathroom, where Cornwell tended defendant’s wound.

Before the police came to the house, but on the same day, defendant asked

Cornwell whether she would wait for him if something happened. Defendant then

got a telephone call from his mother, which seemed to upset him. When Cornwell

asked what was wrong, defendant said “something about a murder” and told

Cornwell “you are going to hate me.”

That evening, after defendant left the El Monte house with the police,

Cornwell burned defendant’s blue jacket in a hibachi on top of the kitchen stove.

She did so because defendant would be in a bad mood when he returned, “so

I figured if I burned the jacket, tomorrow was payday [i.e., welfare check day], he

was going to get a new one and he would be pacified.” The police arrested

Cornwell as an accessory when she told them about the jacket.


B. Defense case.

Dr. Ernest Klatte, a psychiatrist, interviewed defendant once in December

1982, once in January 1983, and twice more in 1990, for a total of eight and three-

quarter hours. Before the first interview, Dr. Klatte reviewed reports of the

Harbitz murder investigation prepared by the public defender and the Fullerton

Police, as well as the forensic report of the Orange County Sheriff’s crime lab. He

also reviewed defendant’s past medical reports. These included indications that,

in the past, defendant had suffered two serious traffic accidents, both of which

rendered him temporarily unconscious. According to Dr. Klatte, defendant

provided the following version of the events of December 7, 1982:

For some time, defendant had been injecting cocaine daily, and had been

drinking considerably. On December 7, he drank a “fair amount” of beer in the

morning and a half-pint of whiskey in the afternoon. After consuming the

whiskey, he smoked a PCP cigarette. He also shared a quarter-gram of cocaine

with Kennedy.

After injecting the cocaine, defendant and Kennedy drove to defendant’s

parents’ house, where defendant hoped to talk his mother out of money for more

drugs. However, his father was home, so he could not obtain the money. Next,

defendant went looking for William Harbitz, but found he had moved. Defendant

then had Kennedy drive him to the home of William’s parents, who had been nice

to him, to find out how to contact William. Defendant was developing “one of his

headaches, which he had on and off for some years.” During these episodes, he

did not like being around people and felt prone to anger easily. He did not

mention the headache to Kennedy. He was also starting to feel effects of the PCP

he had consumed.

When they arrived in the Harbitzes’ neighborhood, defendant told Kennedy

to park around the corner because Kennedy seemed “kind of edgy.” When


defendant knocked on the Harbitzes’ door, Aileen invited him in. The warmth

inside the house bothered him. After he chatted briefly with Aileen, she suggested

he go to the back bedroom and talk with Francis. He did so.

As defendant was leaving Francis’s room, he noticed a billfold out of the

corner of his eye, and “things started getting very strange.” He felt he was part of

Halloween II (1981), a popular horror movie. Events kept changing speeds, and

items inside the house became distorted.

In the 1982-1983 interviews, defendant said he recalled only that he

grabbed Aileen and that Francis came down the hall saying, “what’s going on

here.” According to defendant’s 1982-1983 account, he had no memory of pulling

out his knife or stabbing, and he remembered nothing else until he was outside

ready to leave in the car. In 1990, he said he was “tripping” and had actually

hallucinated a man coming at him with a knife.

Defendant did remember that he had two wallets when he left the Harbitz

house. He also acknowledged that he went through the wallets looking for money,

then discarded them in a bushy area and a sewer. Defendant discussed these

events in a way that implied he acted “to get rid of the evidence.”

Assuming defendant told the truth about the drugs he ingested on

December 7, 1982, Dr. Klatte opined that their effects would tend to make him

impulsive and explosive, with an impaired ability to interpret events, act

thoughtfully, exercise judgment, and weigh consequences. He would likely have

been paranoid, delusional, and excitable, and might have hallucinated.

Dr. Klatte acknowledged that defendant had an antisocial personality,

might have lied about the events of December 7, and might be malingering.

Defendant’s antisocial personality, plus his understanding that the mental

evaluation was intended to assist him at trial, raised a high clinical suspicion of

malingering. Kennedy’s and Cornwell’s assessments that defendant seemed sober


on December 7 also “raised a question in [Dr. Klatte’s] mind about what happened

inside the [victims’] house,” although experienced drug users become more adept

at masking their symptoms, and long-term use of drugs like cocaine and PCP can

produce momentary psychotic or other explosive effects unrelated to the most

recent ingestion. Dr. Klatte did particularly suspect defendant’s 1990

hallucination claim, because defendant had not mentioned this experience in his

earlier interviews. Dr. Klatte further conceded that, while defendant professed not

to remember the stabbings, much of his activity that night was goal oriented, to

obtain money for drugs.

Lawrence Plon, a pharmacist, testified to the usual effects of cocaine and

PCP. Plon said cocaine is a central nervous system stimulant. When injected, it

produces a very excited “high” feeling often compared to sexual orgasm. PCP

separates the consciousness from the body. It can produce excitement or catatonic

withdrawal, aggression, paranoia, hallucinations, and delusions.


A. Prosecution case.

The parties stipulated that on October 16, 1980, defendant pled guilty to

committing a misdemeanor assault against James Davis on September 15, 1980.

The prosecution also presented evidence, essentially uncontested, that defendant

participated in the armed robbery of a Payless Shoe Source store in Temple City

on October 12, 1982. Defendant personally pulled a handgun on the clerk, Paula

Kelly, and forced her to open both the cash register and the store safe.

Finally, the prosecution sought to prove that defendant murdered 75-year-

old Houston Compton in Fullerton on August 22, 1980. Compton’s blood-soaked

body, with the back pants pocket pulled out, was found around 7:30 that same

evening near the center of the Fullerton College campus. The victim was last seen


alive between 6:00 p.m. and 6:30 p.m. at Coco’s, a restaurant less than two miles

from the campus and about one mile from the International Hotel, where

defendant then lived.

The five-foot, two-inch, 115-pound victim suffered a stab wound to the

upper chest and some 34 slash wounds to the fingers, hands, forearms, elbows,

upper chest, face, and head. The fatal wound extended from the side of the face to

the neck, severed the jugular vein, and nicked the carotid artery, causing massive

loss of blood. The wounds could have been inflicted by a Frontiersman 124 buck


Compton’s early 1960’s Ford Fairlane was found abandoned in Santa

Monica on September 11, 1980. His wallet was lying on the front seat. There

were blood spots, spatters, and smears on the dashboard, the under-dash air

conditioning unit, a seat cushion on the front passenger side, and the inside of the

front passenger door, as well as pooled blood on the passenger side floorboards,

both front and rear. Extensive debris, including a McDonald’s restaurant bag with

a receipt inside and other discarded food wrappings and containers, was removed

from the car. The receipt was for a purchase of two hamburgers at 10:12 p.m. on

August 22, 1980, from the McDonald’s restaurant on Leffingwell Road in


The car’s interior also contained gun enthusiast magazines and papers

which were marked with Japanese writing and the handwritten names and

addresses, in English, of gun shops. In the trunk, police discovered a box labeled

“buck knife,” and, under a tire iron, a trench coat with the name “George Murphy”

embroidered inside. This coat also had labels identifying a tailor shop in Japan, as

well as a tag with handwritten letters that appeared to be a P and a B. No

matchable fingerprints were found in the vehicle or on any items taken from it.


DNA test results for the genetic materials collected in the case (i.e., blood, hairs,

scrapings from the victim’s fingernails) did not point to defendant.

Roger Green testified as follows: In 1980, he owned a gun shop in

Whittier. In late August of that year, he sold a Frontiersman 124 buck knife, in its

box, to two men. The men also expressed an interest in purchasing a Walther

handgun, which Green did not sell. One of these customers resembled a photo of

a man named Charles Connell.

The prosecution sought to prove defendant’s identity as Compton’s killer in

several ways. William Harbitz testified as follows: One evening in August 1980,

defendant came to the door of Harbitz’s apartment. Defendant had been drinking,

and said he had been in a knife fight. There was blood on defendant’s T-shirt.

The next morning, Harbitz found blood on the fender of his dune buggy, which

was parked in the direction from which defendant had approached.

Linda Weissinger testified as follows: In August 1980, then 16 years old,

she worked at the McDonald’s restaurant on Leffingwell Road in Whittier.

Around 10:15 p.m. on August 22, 1980, during the closing rush, a man driving a

white early ‘60s car like Compton’s ordered two hamburgers at the drive-through

window. Weissinger took the order, while another employee, Shelly Stowell,

received the customer’s money and handed him the food. They noticed the man

because he had blood on his T-shirt—Stowell remarked what a “slob” he was—

and because, unlike most customers, he parked away from the drive-through

window, and leaned toward the passenger side of the car, as if he did not wish to

be seen. Weissinger observed the man for 40 to 50 seconds. From her angle, she

saw him only in three-quarters profile, and the car’s roof prevented her from

observing his upper forehead and hair. Nonetheless, in May 1983, she picked

defendant’s picture from a six-photo array. At trial in 1992, Weissinger confirmed


she was “sure” in May 1983 that the photo she picked at that time showed the man

she saw at McDonald’s on August 22, 1980.

During direct and cross-examination, Weissinger revealed that, before she

identified defendant in May 1983, she had picked other men at November 1980

and July 1981 live lineups. The man Weissinger identified with “99 percent”

certainty at the November 1980 live lineup was some 50 pounds heavier than the

person she saw on August 22, 1980, and there were also differences in facial hair

and hair style and color. The man she identified at the July 1981 live lineup

“seem[ed] to have lost some weight and grown some facial hair.” Weissinger

explained that the police had told her to discount such differences, because

someone’s appearance could change in those ways over time. After picking

defendant from the May 1983 photo array, she was shown the same group of

photos on two later occasions—in April 1985 and January 1991. These were the

only times she saw the same photos more than once.

B. Defense case.

Responding to Weissinger’s testimony for the prosecution, Dr. Kathy

Pezdek, a clinical psychologist, testified about factors undermining the accuracy of

eyewitness identifications. Dr. Pezdek indicated that stress, a poor opportunity to

observe in the first instance, and loss of memory due to passage of time can all

contribute to mistaken identification. Accuracy can also be compromised, Dr.

Pezdek explained, when the witness is anxious to help the police by identifying

someone. In Dr. Pezdek’s view, Weissinger’s multiple identifications of different

persons implied she was suggestible in this way. The sharply different

appearances of the other men Weissinger identified cast further doubt on her

accuracy. Moreover, Dr. Pezdek observed, one who meets many people, such as a

McDonald’s worker, might misidentify someone observed on a particular occasion


by unconsciously transferring a memory of someone seen in a entirely different

context, such as a neighbor.5

Dorothy Boyer, defendant’s adoptive mother, testified that defendant was

four years old when adopted. Dorothy and her husband Del went to the apartment

of defendant’s natural mother to pick defendant up. Conditions in that home were

poor. The natural mother was anxious to get rid of defendant, and he showed no

emotion at their parting. The Boyers agreed on the spot to take defendant’s

younger sister also. When defendant was adopted, he could hardly talk, and he

communicated with grunts. He was in poor physical condition, with boils all over

his body, the result of an inadequate diet. The natural mother said defendant’s

speech problems were because he “didn’t get enough oxygen or something” at


Dorothy recounted that as a young child, defendant had many friends, and

the Boyer living room “belonged to the whole neighborhood.” However, speech

problems persisted through defendant’s childhood, despite the Boyers’ attempts to

help, and he began wearing glasses in the third or fourth grade. As a consequence,

other children made fun of him, and his social and academic development was

impaired. He became more withdrawn. He wet his bed until he was 10 or 11

years old. Initially, he worked hard in school and obeyed the rules, but he

repeated second grade, and despite home tutoring, his performance worsened

through elementary school. The Boyers spent money to support defendant’s


With respect to the defense effort to focus suspicion on “Charles Connell”

and “George Murphy” as Compton’s killers, the parties stipulated, at the
conclusion of the defense case, to the following: In 1974, one Charles Connell
was convicted of voluntary manslaughter and sentenced to prison. Men named
Charles Connell and George Murphy, who had been housed in the same cellblock,
were released from the Orange County Jail within half an hour of each other on
the morning of August 22, 1980. One Charles Connell died in a Veterans’
Administration hospital in 1989.


interests in art and music. Del, whom defendant idolized, engaged in many

pursuits with him, including homework, chess, baseball, and soapbox derby. The

family attended church regularly, traveled to Yosemite each year, and took ski

vacations together in the winter.

Defendant’s school attendance and performance deteriorated further during

his teenage years. Dorothy’s communication with him became difficult, though he

remained close to Del and protective of his younger sister. When defendant was

17, money and a small television turned up missing from the Boyer home. The

Boyers suspected drugs. As a result, Del told defendant he would have to leave

home when he turned 18. Around the same time, defendant had two traffic

accidents. The first time, he was thrown from a car onto the pavement. He hit his

head, and was hospitalized for three or four days. Subsequently, in a motorcycle

crash, he seriously fractured his leg and crushed his hip. This time he was in the

hospital for three or four months.

After defendant left home, the Boyers moved to a condominium complex

on East Oxford Drive in La Mirada. Around August 1980, defendant periodically

visited them there.6 During this period, Dorothy sensed that defendant had a

continuing drug problem and was not choosing his friends well.

Dorothy indicated that she and Del tried to visit defendant in prison, but

were treated so badly that defendant urged them not to return. Thereafter, they


Defense counsel had previously elicited from prosecution witness

Weissinger, who identified defendant’s photo in relation to the Compton murder,
that in August 1980, Weissinger lived with her parents in a condominium on East
Oxford Drive in La Mirada—apparently located in the same complex where
defendant visited his parents around that time. This, in turn, was intended to
support the defense theory, alluded to by Dr. Pezdek, the defense eyewitness
identification expert, that Weissinger may have seen defendant in the complex,
then mistakenly transferred that memory to the man she saw at the McDonald’s
restaurant on August 22, 1980.


spoke with him by telephone twice a week, and he regularly sent handmade

birthday and holiday cards with his own drawings and cartoons. Dorothy said

defendant had often expressed remorse for killing the Harbitzes.

Nancy Ann Lucia was the neighbor of the Boyers’ who helped arrange his

adoption. She accompanied the Boyers to pick up defendant and his sister from

their natural mother. Nancy confirmed defendant’s poor environment and

physical condition at that time, as well as the obvious lack of bonding between

child and natural mother. Nancy said defendant was “a very frightened little boy.”

According to Nancy, the Boyers were loving and attentive adoptive parents, but

Del was a perfectionist who put too much pressure on defendant. Defendant and

Nancy’s son, who was the same age, had a normal playmate relationship. The

Lucias moved away permanently when the two boys were in the fourth or fifth

grade, and Nancy did not see defendant after that.

Luis Lucia, Nancy’s son, confirmed his close childhood friendship with

defendant. Luis did not know defendant as an adult guilty of capital crimes, but he

insisted that everyone makes mistakes, and that defendant did not deserve to die.

Sally Forbes, a marriage, family, and child counselor, conducted multiple

interviews with defendant and his parents. On this basis, she testified at length

about defendant’s background and its effect on his psychological makeup. Forbes

attached particular significance to defendant’s lack of emotion upon parting from

his natural mother. Forbes stressed the importance of the first four years of

childhood as an influence on later behavior. During this period, Forbes said,

children develop autonomy and self-esteem, and they learn about trust and

mistrust. Instinctively aware of their need for adult care, they will cling to parents

despite neglect and mistreatment. Defendant’s lack of bonding with his natural

parent, Forbes opined, thus indicated severe mental and emotional deprivation

during his earliest years. Moreover, childhood events described by defendant and


the Boyers—his persistent speech problem, his night fears including visual

hallucinations, and his bed wetting—as well as his episodes of “acting out,” such

as lying and setting fires, also suggested some great fear- or terror-inducing

trauma in his background.

Defendant scored 90 on the Wechsler Adult Intelligence Scale, indicating

low average intelligence. With effort, Forbes indicated, defendant thus should

have been able to do adequate schoolwork. It appeared from defendant’s school

history that, responding to the Boyers’ love and attention, he was initially

enthusiastic, but that he later lacked motivation and simply gave up. As a possible

explanation, Forbes noted that adopted children are always insecure about why

their real parents did not want them. Usually, Forbes observed, this issue gets

worked out through family communication and therapy, but here it did not.

Forbes acknowledged school reports documenting an increasing degree of

antisocial behavior as defendant got older, and she agreed that his adolescent

truancy suggested problems with drugs and alcohol.

Considering the extent of defendant’s difficulties, Forbes felt her initial

interviews did not uncover the “full story” of his possible preadoption trauma. In

1984, after 30 or 40 interviews, defendant revealed that his natural father had

sexually abused him. Defendant said the father would come home, send

defendant’s older sister out to play, take defendant into the bedroom, force him to

perform oral sex, give him pink and orange cookies, and make him promise not to

tell. Forbes believed this occurred when defendant was between two and four

years old. Early childhood sexual abuse, Forbes indicated, produces deep-seated

guilt feelings. It could account, she believed, for defendant’s night fears, fire

setting, and bed wetting during childhood, and could permanently impair his

ability to trust, thus producing an alienated “loner.”


In Forbes’s later interviews with defendant, he had softened his cynical

attitudes, and had become more compassionate, mature, and insightful—a change

also noticeable in his artwork. He was now able, Forbes said, to set short-term

goals, postpone gratification, avoid losing his temper, and judge and react

appropriately to situations.

Dr. Jonathan Salk, a psychiatrist, had a single interview with defendant at

the Orange County jail. Forbes accompanied Dr. Salk to the jail, but she left the

interview room when defendant expressed embarrassment about discussing certain

matters in her presence. Defendant then confirmed to Dr. Salk his memories of

sexual abuse by an adult male, probably his natural father, when he was a very

young child. The details generally corresponded to those defendant had given

Forbes. Defendant also recalled incidents of physical violence at his father’s

hands. In Dr. Salk’s opinion, defendant’s demeanor and manner of describing

these events indicated he was telling the truth. Defendant generally depicted his

preadoption childhood as chaotic; his mother was an alcoholic, his father was at

home only intermittently, and his older sister was his primary caregiver. Dr. Salk

believed defendant exhibited many childhood behaviors linked to severe

psychological trauma.

Luis Munoz and Edward Wood, Orange County jail guards, testified that

defendant was an average, cooperative inmate who gave no trouble while confined

there. Defendant volunteered to clean up the cafeteria, a duty that allowed him to

be out of his cell. Toni Bovee, a defense investigator, showed examples of the

many original drawings and poems defendant had sent her and her daughter.

Bovee said defendant had often expressed remorse for the Harbitz homicides.

Clayton Griffith, a prison art instructor, testified that, in their initial

encounters, defendant displayed a “biker macho” demeanor, and his artwork was

cold, impersonal, and detached. Over time, however, defendant’s artwork


softened, and he began to combine poetry with drawing. Defendant was always

reserved, but after six months or so, he became less formal, and more friendly and

expressive. His hard demeanor came to seem more like a façade. Defendant was

generally polite and caring of others insofar as he had contact with them. He

appeared to have good relations with peers and supervisors.

Because he was unavailable at the 1992 trial, the testimony of James

Verwys from the prior trial was read into the record as follows: Verwys was a Los

Angeles police officer. He occupied the hospital bed next to defendant’s after

defendant’s motorcycle accident. Verwys liked defendant the best of his 20 or so

hospital roommates. Defendant seemed a genuine, caring person. He was the

only roommate to return after his release from the hospital to visit Verwys. They

kept in touch and socialized after Verwys was released. Defendant has redeeming

qualities and is worth keeping alive.



A. Motion to suppress evidence.

As noted above, in Boyer I we reversed defendant’s original conviction on

grounds that his confession in police custody was illegally obtained and should

have been suppressed, but we ruled that other evidence in the case was not

similarly subject to exclusion as the product, or “tainted fruit,” of the illegal police

conduct. (Boyer I, supra, 48 Cal.3d 247, 276 et seq.) Prior to the retrial,

defendant moved anew to suppress evidence other than his confession, including

the evidence discussed in Boyer I, on multiple grounds. His motion was denied,

and the challenged evidence was again admitted against him on the issue of guilt.

Defendant urges on appeal that the trial court committed multiple errors in

denying his new suppression motion. We find no prejudicial error. Our analysis

requires, at the outset, an extensive factual recitation.


1. Factual and procedural background.

Before the 1984 trials, defendant moved to exclude his incriminating

statements to police, as well as other evidence, on grounds they were obtained in

violation of his rights under the Fourth Amendment and Miranda v. Arizona,

supra, 384 U.S. 436. On the motion, the following facts were adduced:

On the evening of December 14, 1982, without an arrest or search warrant,

or probable cause for either, detectives from the Fullerton and El Monte Police

Departments surrounded the El Monte house defendant shared with Cynthia

Cornwell and her children. When defendant emerged from the back door, he was

detained, and he agreed to accompany detectives to the Fullerton police station for

an interview about the Harbitz murders.

Once at the station, defendant received Miranda warnings and then

underwent a two-hour tape-recorded interrogation by Detective Lewis. Lewis

indicated he thought defendant was guilty, did not credit defendant’s contrary

protestations, and believed defendant could not live with the guilt. Defendant’s

efforts to invoke his Miranda rights to silence and counsel, and to ascertain

whether he was under arrest, were repeatedly ignored or evaded. However,

questioning finally ceased, and the recorder was turned off.

Lewis then asked defendant if the police could search the El Monte house.

Defendant said it was all right with him, but they would have to obtain Cornwell’s

consent, because “[i]t’s her house.” Officers Davinroy and Ritter, waiting in El

Monte, were dispatched to obtain Cornwell’s permission.

Meanwhile in Fullerton, defendant consented to fingerprinting and was

taken to the jail facility for that purpose. When he returned from fingerprinting, he

spoke with Cornwell by telephone. Though defendant had not yet made any

incriminating statements and, according to Lewis, was not under arrest, Lewis

overheard defendant tell Cornwell he was being charged with two counts of


murder. Defendant advised Cornwell that the decision whether to allow a

residential search was hers, because it was her house. After speaking with

defendant, and with her own attorney, Cornwell gave oral consent, and the search


At the Fullerton police station, Lewis asked defendant to step back into the

interrogation room “for a few minutes.” The tape recorder was not turned on.

Lewis indicated he could not solicit further statements from defendant, because

defendant had asked for an attorney. However, Lewis said, he wanted to “tell

[defendant] a couple things.” Lewis then related to defendant that certain portions

of defendant’s story did not ring true, in that Paul Harbitz, one of the victims’

sons, indicated defendant had done yard work for the senior Harbitzes more

recently than defendant maintained. Hence, Lewis admonished, he would be

“checking further into the case with Bill Harbitz.”

As Lewis then turned to leave the room, defendant called him back and said

“I did it.” Lewis reactivated the tape recorder and took a new waiver of

defendant’s Miranda rights. Defendant thereupon gave a more complete

statement. (Boyer I, supra, 48 Cal.3d 247, 263-267.)

Among other things, defendant disclosed that during the fatal encounter, he

had stabbed himself in the knee. He revealed that the knife he used to stab the

Harbitzes was in his bedroom in El Monte, most likely in a dresser drawer. He

said that he had worn Levi’s and a blue jacket the night of the murders, and that

the jacket had gotten blood on it. He indicated the jacket was on the bedroom


Neither Cornwell nor the attorney with whom she spoke testified in the

suppression hearing that preceded the 1984 trials. Evidence of the circumstances
of her consent to the search of the El Monte house came from Detective Lewis,
who overheard defendant’s end of the telephone conversation with Cornwell, and
from Detectives Davinroy and Ritter, who were at the El Monte house to obtain
Cornwell’s consent.


floor and the Levi’s were in the bedroom closet. Defendant represented that he

had gone alone to the victims’ home in a car belonging to the mother of his friend

John Kennedy.8 At some point, defendant also directed police to the location of

Aileen Harbitz’s wallet, which he had discarded near a freeway off-ramp.

As soon as defendant confessed, information about the Levi’s, the jacket,

and the knife was transmitted to the officers searching the El Monte house. They

recovered bloody Levi’s from the bedroom closet and a knife from a dresser

drawer, but they found no blue denim jacket. When they asked Cornwell about

the jacket, she told them she had burned it in a hibachi on the kitchen stove. The

officers advised her she might thereby be implicated in a murder. They placed her

under arrest as an accessory and advised her of her Miranda rights. She agreed to


Detectives also located and questioned Kennedy, who ultimately admitted

he drove defendant from the El Monte house to the Harbitz residence on the night

of the murders. Kennedy also confirmed the exact location where defendant had

discarded the wallet beside the freeway off-ramp.

Defendant’s motion to suppress was denied, and his statement to the police

was introduced in the prosecution’s case-in-chief. Both Kennedy and Cornwell

testified for the prosecution under grants of immunity. The knife, the bloody

Levi’s, and the recovered wallet were also admitted in evidence.

On appeal from the 1984 judgment, we agreed with defendant that his

incriminating statements to the police on December 14, 1982, were the product of


At various points in this opinion, we recite, and rely upon, facts that are

gleaned from the record of the 1984 trials, but do not appear on the face of our
opinion in Boyer I. By prior order in this appeal, we granted defendant’s requests
that we take judicial notice of the entire record of the proceedings leading to the
appeal in Boyer I. (Evid. Code, §§ 452, subd. (d), 459; cf. People v. Snow (2003)
30 Cal.4th 43, 109-110, fn. 26 (Snow).)


violations of his rights under the Fourth Amendment and Miranda v. Arizona,

supra, 384 U.S. 436. Thus, we ruled, these statements should not have been

admitted in the prosecution’s case-in-chief to prove defendant’s guilt, and the error

was prejudicial. On this basis, we reversed defendant’s conviction. (Boyer I,

supra, 48 Cal.3d 247, 267-275.)

Defendant pressed the further contention that the knife and bloody Levi’s,

Kennedy’s testimony, and the wallet recovered near the freeway offramp were

“ ‘tainted fruit’ of the illegal police conduct,” and thus also inadmissible. (Boyer

I, supra, 48 Cal.3d 247, 256.) He urged that the evidence recovered from the El

Monte house was based on his invalid consent to search given while he was

illegally detained. He further asserted that the authorities had improperly obtained

Kennedy’s testimony, and had recovered the wallet, as the result of information

invalidly obtained from defendant. (Id. at p. 276 et seq.)

We rejected these arguments. Based on the record then before us, we

reasoned as follows: The search of the El Monte house was based not on

defendant’s invalid consent, but on the voluntary, untainted consent of Cornwell.

During the consensual search, and after the authorities located the knife and

bloody Levi’s the search would inevitably have produced, Cornwell volunteered

she had burned the blue jacket, an inherently suspicious event leading to the arrest

that persuaded her to cooperate with the authorities. Cornwell’s cooperation

would have led the police to Kennedy, for she knew defendant was in Kennedy’s

company on the night of the murders. Armed with information from Cornwell

about Kennedy’s involvement, police would certainly have obtained his

cooperation. Thus, both his testimony and his independent knowledge of the

discarded wallet’s location would have been procured regardless of defendant’s

statement. (Boyer I, supra, 48 Cal.3d 247, 276-279.)


On retrial, defendant filed a new motion seeking to suppress the knife, the

Levi’s, the wallet, and the anticipated testimony of both Cornwell and Kennedy as

“tainted fruit” of his illegal detention and confession. Defendant also claimed that

Cornwell’s consent to search the El Monte house, and her anticipated testimony on

retrial, were the result of coercive tactics by the authorities against her. Defendant

sought an evidentiary hearing on these issues.

The trial court determined that our decision in Boyer I was the law of the

case as to all issues addressed therein, and that relitigation of those issues was thus

foreclosed. Accordingly, the court ruled, defendant could not raise claims (1) that

the search of the El Monte house was the “tainted fruit” of defendant’s illegal

detention, confession, and consent, (2) that Cornwell’s consent to the search was

involuntary, or (3) that procurement of Kennedy’s information and testimony was

not inevitable.

However, the trial court permitted defendant to litigate his claim, not raised

or addressed in Boyer I, that Cornwell’s testimony should be excluded as the result

of official coercion against her, and as the tainted product of defendant’s illegal

arrest, detention, and confession. The parties stipulated “as far as the purposes of

this hearing,” that the facts recited by our opinion in Boyer I were true.

At the evidentiary hearing, Detective Lewis testified for the prosecution as

follows: When he and other officers approached the El Monte house on the

evening of December 14, 1982, he knew defendant lived there with a woman and

her three children. Had defendant not been home, and had the woman been

cooperative, Lewis would have inquired about defendant’s whereabouts, and

would also have asked her where defendant was on the night of December 7. If

she were not cooperative, Lewis would have left.9


On cross-examination, Lewis indicated that he might have told Cornwell

what the investigation was about and asked if she was willing to talk, but if she


When the officers knocked, Cornwell came to a window and indicated that

defendant was there but could not come to the front door because it was

jammed.10 After defendant emerged from the back door and was detained, the

officers and defendant went back inside, where Lewis explained to Cornwell, who

was very emotional, that defendant had agreed to accompany them to the Fullerton

station for an interview. Lewis indicated defendant would be gone about three

hours. Cornwell asked if defendant was under arrest; Lewis said he was not.

Cornwell also asked if she could follow them to the police station. Lewis agreed,

but Cornwell was unable to arrange transportation or child care. Lewis did not

recall telling Cornwell that the matter involved a murder investigation.

While in Lewis’s presence at the station, defendant had two phone

conversations with Cornwell, one “after the initial interview,” and the second after

defendant returned from fingerprinting. In the first call, Lewis heard defendant

tell Cornwell it was her decision whether to allow a search.11 Lewis did not know

the substance of the second call, but he did hear defendant tell Cornwell he was

“arrested for a couple murders.”12 To the best of Lewis’s recollection, both of

these calls occurred before defendant confessed.

Other evidence established that Cornwell was arrested and jailed overnight

after officers searching the El Monte house pursuant to her prior oral consent

had strongly expressed an unwillingness to cooperate, he said, “at that point in the
investigation, I wouldn’t have been that strong on whether or not I talked to her.”


Lewis considered Cornwell to be cooperative at this point, but in hindsight,

he conceded, she might just have been trying to buy time for defendant to escape
out the back.


Lewis confirmed that, at some point, there was a decision by police to seek

a permissive search.


Lewis conceded that Detective Ritter, who was then at the El Monte house,

placed the calls on Cornwell’s behalf, and that Cornwell would not have been
allowed to speak immediately to defendant if Ritter had not placed the calls.


learned of defendant’s confession and the significance of the blue jacket, asked her

about the jacket, and were told she had burned it. (See discussion, ante and post.)

In response to defense counsel’s question on cross-examination, Lewis agreed

that, before defendant confessed, it would not have been appropriate to arrest

someone as an accomplice for destroying evidence such as a bloody jacket,

because until then, “I didn’t know he had committed the murder.”

On December 21, 1982, Lewis returned to the El Monte house to interview

Cornwell further. Cornwell was “edgy” but calmer than on December 14. She

said she was under a doctor’s care and did not want to speak to the police. Lewis

told her defendant had confessed, “so she might as well talk to us.” In taking this

approach, Lewis, aware of Cornwell’s emotional attachment to defendant, was

seeking to persuade her that she “wouldn’t be telling us anything we didn’t already

know.” Cornwell declined to talk on that occasion but said she might do so later

after speaking to her psychologist and her attorney.

Cynthia Cornwell testified for the defense as follows: On December 14,

1982, some three or four hours after defendant was taken to the police station, “at

least” two other detectives came to the house. She did not recall whether they

asked to search, or whether she consented to the search before or after she learned

defendant had been arrested. She did speak by telephone both to defendant and to

her attorney about allowing a search. She remembered little about the substance

of those conversations, or how the calls were placed. During the search, she knew

defendant was suspected of murder. She also was aware the police had not kept

their promise to have defendant home in two or three hours.

According to Cornwell, both before and during the search, the officers

mentioned that her children could be taken away because the house was dirty and

messy. She could not recall whether this was first said before or after she

consented to the search, but it was after she spoke to defendant and her attorney.


She took the reference to her children as a threat unless she cooperated against

defendant. During this time, Cornwell was “upset,” “scared,” and “very, very


Something that “terrified” Cornwell during the search was that one of the

officers tossed or dropped her infant daughter off a bed, from a height of 12 to 18

inches, so he could look underneath it. One other detective and Cornwell’s five-

year-old daughter were also in the room at this time. The baby was not hurt, but

Cornwell felt the officer did this to “intimidate me.” Also, Cornwell wanted to

give her children baths to keep them calm, but detectives would not let her do so

unless an officer “stood right there and watched the whole thing.”

During the search, the officers asked Cornwell where certain items of

clothing could be found, “and I was telling them.” When they asked about the

jacket, she told them she burned it on the stove. She showed the officers the

scraps that were left. They said she could or would be charged as an accessory.

They arrested her, had her sign a search consent form, and took her to jail. At the

time she was arrested, she knew defendant had confessed. She felt that some

pressure was being applied against her at the time of her arrest. The police sought

to interview her while she was in jail, but she realized they had lied to her, and

were still lying to her, so she refused.

Cornwell was released the next day; she assumed it was because she was

sick. She did not know whether she would be charged, and she did not want to

know. She did not call a lawyer after she was released. Shortly after her release,

she was hospitalized with hepatitis and jaundice. She also was placed on

medication for mental problems, including anxiety, “so I [could] walk out of my

house without panicking if I saw a man in a business suit.” The medication

helped, and she was no longer taking it.


Cornwell thought any information she had would help defendant, because

she “honestly did not believe he did it,” but at first she was not willing to testify.

Defendant’s confession had nothing to do with her ultimate decision to cooperate.

She decided to do so when told she would have immunity, out of fear she would

otherwise be prosecuted. Moreover, though she later realized they could not take

her children, the police threats to do so, and the incident with her baby daughter,

caused her to believe that her own life was threatened, and that the police might

find a way to retaliate.

At one point, the court asked Cornwell, “[a]s I understand, your consent to

search the house was based on the activities of the officers making the threats and

the way they threatened your child . . . also, is that correct?” (Italics added.)

Cornwell replied, “Correct.”

Ruth Ohanessian testified for the defense as follows: Cornwell had

previously consulted Ohanessian, then a lawyer, about a custody matter.13 Late

one December night, Cornwell called to seek advice about whether she should

allow the police to search her house. Cornwell, who was “very upset,” and

“almost hysterical,” indicated “they were threatening to take the children.”

Ohanessian told Cornwell to stay calm and not to antagonize the officers until

Ohanessian called back.

Ohanessian then tried two or three times to call Cornwell directly. Each

time, a “brusque” male voice answered, saying Ohanessian had a wrong number,

disclaiming that Cornwell was there, and then terminating the conversation.

Finally, with operator assistance, Ohanessian reached someone who identified

himself as a police officer. Ohanessian asked why they were saying they were


At the time of her testimony, Ohanessian was serving a six-year sentence

upon a conviction for grand theft.


going to take the children. The other party was not willing to give much

information. He did not seem surprised at the question, did not deny discussing

the children with Cornwell, and gave no legitimate reason why they could be

taken. However, he acted somewhat conciliatory and said “they really didn’t have

any intentions of taking the children. He indicated they were there about

something that had nothing to do with [Cornwell], something having to do with

her boyfriend.”

Ohanessian then spoke to Cornwell. Ohanessian advised that Cornwell

“didn’t have to be terribly worried about their taking the children” and should

“give as little permission as she could” to avoid having the children taken. They

were able to talk only briefly, and Ohanessian told Cornwell she would call back

later. As the conversation ended, Cornwell was “still upset,” but, having been

reassured about the children, she was “a tiny bit calmer.”

After again trying several times without success, Ohanessian called back

much later, shortly after midnight, and spoke to Cornwell. Cornwell said she was

being arrested and asked Ohanessian to contact a family member for assistance

with the children and possibly to arrange bail.

Detective Rick Ritter testified for the People in rebuttal as follows: He

arrived at the El Monte house around 5:50 p.m. on December 14, 1982, and left

sometime after 1:00 a.m. He obtained Cornwell’s consent to search some four or

five hours after he first arrived.14 His partner, Detective Davinroy, had been told


Read out of context, Ritter’s testimony might suggest he was in Cornwell’s

home at all times between 5:50 p.m. and 1:00 a.m., but all other evidence,
including Cornwell’s own testimony, is that officers left the house when defendant
was taken to the police station. Though perhaps stationed nearby, they apparently
did not return until several hours later when, after defendant indicated that a search
was up to Cornwell, they received word from the Fullerton police station that they
should attempt to obtain Cornwell’s consent to search.


over the telephone at a nearby fire station that defendant had given permission to

search, “and we were to contact [Cornwell] at the residence and explain to her

what the situation was and request to be allowed to search.”

Cornwell was nervous when her consent was requested, and she may have

cried at some point. Initially, she expressed particular distrust of Davinroy and

said that if Davinroy was going to participate in the search, she wanted to be

present, and she wanted receipts. Ritter agreed.

Ultimately, six or seven officers were present in the house. Davinroy and

Ritter had called for additional officers so that, if consent was refused, the

premises could be secured while a warrant was obtained. While the officers were

in the house, and prior to Cornwell’s arrest, detectives were monitoring

Cornwell’s calls. Davinroy was answering the telephone because the officers were

expecting and receiving calls from the police station. However, when Cornwell

said she wanted to call her attorney before authorizing a search, Ritter said “go

ahead.” When Ohanessian called back, she was allowed to speak to Cornwell

once she identified herself.

Ritter insisted he made no threats, about the children or otherwise, to

Cornwell at any time, nor did he hear anyone else do so. According to Ritter,

when Cornwell first realized she was going to be arrested, she was concerned

about what would happen to the children, but when Ritter assured her they would

be taken care of, she calmed down.

At some time during the evening, Ritter saw two detectives, Cornwell,

Cornwell’s daughter, and an infant together in the bedroom, but he never observed

anyone touch the baby, pick up the baby, or toss the baby on the floor. He was not

always in the same room with every child or every officer. However, he stayed

with Cornwell at all times and never let her out of his sight, because “she was a

witness in a homicide and/or a suspect.”


At the time the detectives obtained Cornwell’s consent, they did not know

defendant had confessed. However, they did know of defendant’s confession by

the time Cornwell was arrested.

On this record, the trial court ruled that Cornwell’s testimony was neither

coerced nor tainted. The court found nothing coercive in the initial contact with

the police, particularly since Cornwell was told that she could accompany

defendant to the station and that the interview would last only two or three hours.

Similarly, the court saw nothing objectionable in “the officer . . . answering the

phone and things of that nature.” As to the claim of a threat to take Cornwell’s

children, the court found that no such threat occurred. The court surmised that

Cornwell, in an emotional state and already concerned about child custody issues,

might have misinterpreted innocent remarks. While the court declined to

determine whether Cornwell’s baby was tossed from the bed, the court’s

comments suggested doubt that such an incident occurred.15 In the court’s words,

“I don’t see there’s anything here that the officers did that was certainly

threatening to the children.”

The court next noted our conclusions in Boyer I—accepted for purposes of

this hearing—that, though initially hostile when asked for consent to search,

Cornwell became cooperative after consulting with defendant, “which she did,”

and with her attorney, “which she surely did,” and that during the ensuing lawful

search, the police found the knife and bloody Levi’s and asked about the jacket.

The court also noted our Boyer I determination that, even if defendant had not

mentioned the jacket and its significance, the officers would have discovered the


After noting that the evidence was in conflict on this issue, the court said,

“I don’t know if it happened or it didn’t happen. [It] [w]ould seem to me that the
officers would pick up on the fact that they are dealing with someone who is
difficult because of her emotional situation, so we have that situation to start


burned jacket, scraps of which were still flying around the kitchen, would have

questioned Cornwell about this “unusual and suspicious event,” and would have

received the explanation Cornwell readily volunteered.

In sum, the court concluded “that [Cornwell] cooperated of her own free

will and volition,” and that her later statements were not tainted by defendant’s

illegal arrest because her testimony would inevitably have been procured by

lawful means. Accordingly, the court denied defendant’s motion to suppress.

On appeal defendant renews his contention that the testimony of Cornwell

and Kennedy, the bloody Levi’s, the knife, and the wallet should have been

suppressed because (1) they were obtained by exploiting defendant’s illegal

detention and the invalid confession thereby obtained, and (2) they would not

inevitably have been procured by, other lawful means. He urges further that

Cornwell’s consent to the search of the El Monte house, and her agreement to

testify at trial, were the involuntary products of official coercion toward her.16


In Boyer I, we concluded that defendant had suffered violations of his

rights under both the Fourth Amendment and Miranda v. Arizona, supra, 384 U.S.
436. However, the new suppression motion on retrial was brought under Penal
Code section 1538.5 (governing suppression of evidence obtained as a result of
illegal searches and seizures), and to the extent the new motion argued that
evidence should be excluded as the “tainted fruit” of the illegal police conduct
found in Boyer I, it did not allude to Miranda. Similarly on appeal, defendant has
not cited Miranda as a basis for his “tainted fruit” arguments. With respect to
these claims, we therefore address only the exclusionary rules applicable to search
and seizure violations under state and federal law. In that regard, we note that the
Harbitz murders were committed in December 1982, after the effective date (June
1982) of Proposition 8’s Truth-in-Evidence provisions (Cal. Const., art. I, § 28,
subd. (d)). Proposition 8 therefore applies to this case. (People v. Smith (1983)
34 Cal.3d 251, 257-263.) Accordingly, relevant evidence obtained in violation of
defendant’s rights, state or federal, against unreasonable searches and seizures
may be excluded only as required under the Fourth Amendment. (In re Lance W.
(1985) 37 Cal.3d 873, 890.)


2. Law of the case.

Defendant first asserts, as he did below, that the trial court should not have

invoked the law-of-the-case doctrine to limit the suppression theories he could

litigate on retrial. He argues the doctrine is inapplicable at the threshold because

Boyer I’s discussion of evidence other than defendant’s illegal confession was

mere dictum. He further contends that, because “inevitable discovery” and the

validity of Cornwell’s consent to search were not litigated in the original trial, the

record we analyzed in Boyer I was not fully developed. By invoking the law of

the case in order to allow the introduction of incriminating evidence on untested

theories of consent and inevitable discovery, defendant insists, the instant trial

court thus lightened the prosecution’s burden of proof in violation of the due

process clause of the Fourteenth Amendment. As a consequence, defendant urges,

he suffered infringement of his Sixth Amendment rights to a jury trial and to

present a defense, and of his Eighth Amendment right to present all evidence

material to his defense against a judgment of death.17


With respect to this and virtually every other claim raised on appeal,

defendant urges that the error or misconduct he is asserting infringed various of
his constitutional rights to a fair and reliable trial. In most instances, insofar as
defendant raised the issue at all in the trial court, he failed explicitly to make some
or all of the constitutional arguments he now advances. In each instance, unless
otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g.,
failure to instruct sua sponte; erroneous instruction affecting defendant’s
substantial rights) that required no trial court action by the defendant to preserve it,
or (2) the new arguments do not invoke facts or legal standards different from
those the trial court itself was asked to apply, but merely assert that the trial
court’s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional legal consequence of violating the Constitution. To that
extent, defendant’s new constitutional arguments are not forfeited on appeal. (See
People v. Partida (2005) 37 Cal.4th 428, 433-439; see also People v. Cole (2004)
33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003) 31 Cal.4th 93, 117.)

In the latter instance, of course, rejection, on the merits, of a claim that the

trial court erred on the issue actually before that court necessarily leads to


“[W]here an appellate court states a rule of law necessary to its decision,

such rule ‘ “must be adhered to” ’ in any ‘ “subsequent appeal” ’ in the same case,

even where the former decision appears to be ‘ “erroneous” ’ ” (People v. Whitt

(1990) 51 Cal.3d 620, 638 (Whitt), quoting People v. Shuey (1975) 13 Cal.3d 835,

841.) Thus, the law-of-the-case doctrine “prevents the parties from seeking

appellate reconsideration of an already decided issue in the same case absent some

significant change in circumstances.” (Whitt, supra, at p. 638.) The doctrine is

one of procedure, not jurisdiction, and it will not be applied “where its application

will result in an unjust decision, e.g., where there has been a ‘manifest

misapplication of existing principles resulting in substantial injustice’

[citation] . . . .” (People v. Stanley (1995) 10 Cal.4th 764, 787 (Stanley).)

Defendant first suggests the law-of-the-case doctrine is inapplicable here

because Boyer I’s discussion of evidence other than the illegal confession that led

to our reversal was not “necessary to [our] decision” (Whitt, supra, 51 Cal.3d 620,

638), but was mere dictum (see Stockton Theaters v. Palermo (1956) 47 Cal.2d

469, 474). We disagree. In Boyer I, supra, 48 Cal.3d 247, 256, defendant pressed

his “tainted fruit” arguments for the clear purpose of establishing that not only his

confession, but also most of the other evidence introduced against him, was subject

to exclusion. Had we accepted defendant’s claims, the result might well have

been to preclude a retrial for lack of legally sufficient admissible evidence.

Boyer I’s determination that the challenged evidence appeared free of taint thus

ensured that the case could properly be set at large.

Moreover, “[a] decision on a matter properly presented on a prior appeal

becomes the law of the case even though it may not have been absolutely

rejection of the newly applied constitutional “gloss” as well. No separate
constitutional discussion is required in such cases, and we therefore provide none.


necessary to the determination of the question whether the judgment appealed

from should be reversed. [Citations].” (Steelduct Co. v. Henger-Seltzer Co.

(1945) 26 Cal.2d 634, 643.) Thus, application of the law-of-the-case doctrine is

appropriate where an issue presented and decided in the prior appeal, even if not

essential to the appellate disposition, “was proper as a guide to the court below on

a new trial.” (Westerfield v. New York Life Ins. Co. (1910) 157 Cal. 339, 345.)

On the other hand, the law-of-the-case doctrine governs only the principles

of law laid down by an appellate court, as applicable to a retrial of fact, and it

controls the outcome on retrial only to the extent the evidence is substantially the

same. (E.g., People v. Barragan (2004) 32 Cal.4th 236, 246.) The doctrine does

not limit the new evidence a party may introduce on retrial. (Id. at p. 247.) Thus,

it does not preclude the presentation of new evidence on suppression issues when

an appellate court reverses a conviction and sets the cause at large for a new trial.

We so concluded, on the People’s behalf, in People v. Mattson (1990)

50 Cal.3d 826 (Mattson II). Previously, in People v. Mattson (1984) 37 Cal.3d 85

(Mattson I), we had reversed the defendant’s convictions of capital and noncapital

crimes because the trial record indicated that, in violation of California law, he had

confessed to two murders and various sexual offenses in response to custodial

interrogations initiated by police officers after he invoked his rights to silence and

counsel. On retrial, the People were allowed to relitigate the admissibility of the

confessions. The People presented evidence, not previously adduced, that the

defendant had initiated the conversations leading to his confessions, and the trial

court admitted the confessions. On appeal, the defendant urged that relitigation of

this issue was inappropriate because, among other reasons, Mattson I’s

determination that the confessions were inadmissible was the law of the case.

We rejected this contention, explaining that “[t]he law-of-the-case doctrine

binds the trial court as to the law but controls the outcome only if the evidence on


retrial or rehearing of an issue is substantially the same as that upon which the

appellate ruling was based. [Citations.] The law-of-the-case doctrine applied to

this court’s prior ruling only insofar as we held that California law governed the

admissibility of the confessions. The trial court did not depart from that ruling in

its determination, based on new evidence, that the confessions were admissible.”

(Mattson II, supra, 50 Cal.3d 826, 850.)18

The same principle governs here. Our discussion of suppression issues in

Boyer I was based on the record then before us. Even if the law-of-the-case

doctrine makes Boyer I conclusive on the legal principles there established, the


Mattson II also found no other basis for precluding relitigation of the

confessions’ admissibility after a reversal on appeal. As we explained, “A reversal
of a judgment without directions is an order for a new trial. (§ 1262.) ‘An
unqualified reversal remands the cause for new trial and places the parties in the
trial court in the same position as if the cause had never been tried.’ [Citation.]
‘The granting of a new trial places the parties in the same position as if no trial had
been had. . . .’ (§ 1180.) [¶] That status even permits amendment of the
accusatory pleading [citation], as well as renewal and reconsideration of pretrial
motions and objections to the admission of evidence. [Citation.]” (Mattson II,
supra, 50 Cal.3d 826, 849.)

As noted above (fn. 15, ante), defendant’s renewed suppression motion,

which included claims previously addressed in Boyer I, was brought under section
1538.5, governing the suppression of evidence obtained as the result of illegal
searches and seizures. Section 1538.5 imposes certain limits on the relitigation of
suppression issues. However, no case has decided the extent to which section
1538.5 precludes such relitigation after an appellate reversal. (See, e.g.,
Mattson II, supra, 50 Cal.3d 826, 850, & fn. 10; but cf. People v. Brooks (1980)
26 Cal.3d 471, 475-483; Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-
641.) Moreover, aside from a brief response at oral argument to a question from
the bench, the People have never argued, either in the trial court or on appeal, that
the new suppression motion in this case was barred by section 1538.5. We
therefore do not address the issue.


doctrine did not foreclose new evidence on retrial indicating that the dispositive

facts are materially different than those we addressed.19

The trial court therefore erred in ruling that the law-of-the-case doctrine

precluded defendant from relitigating, on the basis of new evidence, the issues we

addressed in Boyer I. The question remains whether we can nonetheless uphold

the trial court’s denial of defendant’s motion to suppress, in whole or in part. For

the reasons that follow, we conclude that we may affirm the trial court’s ruling in

its entirety.

3. Claim that Cornwell’s testimony was coerced.

We first address defendant’s claim that Cornwell’s testimony was procured

by coercive police tactics. This assertion, not raised in the original trials or

addressed in Boyer I, was fully litigated on retrial. On the record thus developed,

we find no basis to disagree with the trial court’s determination that Cornwell’s

testimony was not suppressible on this ground.

The principles applicable to a coerced-testimony claim are settled. The

defendant has no standing to assert a violation of another’s constitutional rights.

The coerced testimony of a witness other than the accused is excluded in order to

protect the defendant’s own federal due process right to a fair trial, and in

particular, to ensure the reliability of testimony offered against him. A claim that


Stanley, supra, 10 Cal.4th 764 is not to the contrary. There, after the trial

court granted in part, and denied in part, a motion to suppress evidence in a capital
case, both the defense and the prosecution petitioned for writs of mandate. In an
unpublished decision, the Court of Appeal granted in part, and denied in part, each
petition. We denied the defendant’s petition for review. On automatic appeal
from the subsequent death judgment, the defendant sought our reconsideration of
the exact suppression issues previously, and finally, decided by the Court of
Appeal. We concluded that, absent manifest injustice or an intervening change in
applicable law, the law-of-the-case doctrine precluded such reconsideration.
(Stanley, supra, at pp. 786-790.)


a witness’s testimony is coerced thus cannot prevail simply on grounds that the

testimony is the “fruit” of some constitutional transgression against the witness.

Instead, the defendant must demonstrate how such misconduct, if any, has directly

impaired the free and voluntary nature of the anticipated testimony in the trial

itself. (People v. Badgett (1995) 10 Cal.4th 330, 342-350 (Badgett); People v.

Douglas (1990) 50 Cal.3d 468, 501-502.)

On appeal, we independently review the entire record to determine whether

a witness’s testimony was coerced, so as to render the defendant’s trial unfair.

(Badgett, supra, 10 Cal.4th 330, 350-351.) In doing so, however, we defer to the

trial court’s credibility determinations, and to its findings of physical and

chronological fact, insofar as they are supported by substantial evidence.

Applying these standards, we accept the trial court’s finding that the

authorities engaged in no improper coercive conduct toward Cornwell that caused

her testimony at the 1992 retrial to be involuntary. Cornwell implied that she was

intimidated by events that occurred on the night of December 14, 1982, when the

police searched the El Monte house. These incidents, according to Cornwell,

included police threats to take away her children, and her observation of an officer

tossing her infant daughter off a bed.

However, the trial court credited the testimony of Detective Ritter that no

threats about the children’s custody were made. Detective Ritter further testified

that he had Cornwell in his sight at all times on the night of December 14, and he

neither committed nor saw any physical mishandling of a child. On this basis, the

court properly expressed doubt about the “baby tossing” episode as well.

Moreover, Cornwell herself made clear that her primary reason for her

cooperation at trial was the prosecution’s offer of immunity from prosecution as

an accessory, based on her burning of the jacket defendant wore on the night of the

murders, in return for her truthful testimony. There is nothing improperly coercive


about confronting a lesser participant in a crime with his or her predicament, and

offering immunity from prosecution for the witness’s criminal role in return for

the witness’s promise to testify fully and fairly. (Badgett, supra, 10 Cal.4th 330,

354-355; People v. Daniels (1991) 52 Cal.3d 815, 862; People v. Allen (1986)

42 Cal.3d 1222, 1252 (Allen).) As we conclude elsewhere in this opinion,

Cornwell’s immunity agreement was not coercive, because it did not require her to

testify to a particular version of events, or in conformity with any prior statement,

but was conditioned entirely on her telling the truth. (See discussion, post, at

pp. 56-57.)

Cornwell testified in both trials, and there was more than a nine-year lapse

between the 1982 murders and Cornwell’s testimony in defendant’s 1992 retrial.

This ample period for reflection, during which Cornwell conceded she realized the

police could not take her children, further ameliorates any effect of her

confrontation with the police on December 14, 1982, as a factor undermining the

voluntary nature of her subsequent testimony. (See, e.g., Badgett, supra,

10 Cal.4th 330, 353.) Under these circumstances, the record amply persuades us

that Cornwell’s testimony was not improperly coerced.

4. Claim of involuntary consent to search.

Defendant next urges that Cornwell’s consent to search the El Monte house

she shared with defendant was involuntary and thus invalid because she was

coerced by police threats and intimidation. A warrantless search may, of course,

be based on the consent of a person, other than the accused, who has joint

dominion or control over the area or thing to be searched. However, the defendant

may challenge the validity of the consent insofar as the search infringed his own

expectations of privacy under the Fourth Amendment. (Minnesota v. Carter

(1998) 525 U.S. 83, 88; United States v. Matlock (1974) 415 U.S. 164, 170-171;


People v. Jenkins (2000) 22 Cal.4th 900, 971-972 (Jenkins).) A consent to search

is invalid if not freely and voluntarily given. (Florida v. Royer (1983) 460 U.S.

491, 497 (Royer).)

The voluntariness of consent is a question of fact to be determined from the

totality of circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227

(Schneckloth); Jenkins, supra, 22 Cal.4th 900, 973.) If the validity of a consent is

challenged, the prosecution must prove it was freely and voluntarily given—i.e.,

“that it was [not] coerced by threats or force, or granted only in submission to a

claim of lawful authority.” (Schneckloth, supra, at p. 233; see Royer, supra,
460 U.S. 491, 497.)

In Boyer I, we found, on the record then before us, “no evidence or

contention that Cornwell was improperly coerced to give her consent.” (Boyer I,

supra, 48 Cal.3d 247, 276.) Specifically, we noted, Cornwell, “[t]hough initially

hostile, . . . became cooperative” (id. at p. 278) after consulting with defendant,

who left the matter entirely up to her, and with an attorney (id. at pp. 277-278).

Though defendant insists otherwise, it appears any new facts bearing on

this issue were fully disclosed during the suppression hearing conducted on retrial.

There, in the context of litigating whether Cornwell’s testimony was coerced (see

text discussion, ante, pp. 37-39)—and with the burden of proof on the People—the

circumstances surrounding Cornwell’s consent to search were thoroughly

explored. Detective Lewis testified, as in the prior trial, about the circumstances

of defendant’s preconsent telephone conversation with Cornwell. Cornwell and

Detective Ritter, both present at the El Monte house, described at length the events

there that led to Cornwell’s consent to search. Ruth Ohanessian, the lawyer with

whom Cornwell consulted, also testified about the circumstances and substance of

their conversations. In response to a specific question by the trial court, Cornwell


conceded she was describing the events crucial to her agreement to allow the El

Monte house to be searched.

Under these circumstances, we are convinced we may confirm, on the

totality of circumstances, our prior conclusion that Cornwell’s consent to search

was voluntary. The request for consent took place in an environment most

familiar and comforting to her—her own home. Cornwell was, of course, upset

and emotional when the police took defendant to the Fullerton station, and again

when officers returned to seek permission to search. Such events are inherently

stressful. However, several hours intervened between the officers’ original

departure and their return. No effort was made to secure the premises during this

interlude. Cornwell was alone with her children, giving her time for reflection and

calm. Indeed, she took the opportunity to burn the jacket defendant wore on the

night of the murder.

Once the detectives did return, there is no indication, other than as

discussed below, that they behaved discourteously. Though eventually there were

six or seven officers on the premises, Cornwell gave no indication her will was

overborne by the sheer number of personnel in the house. (Cf., e.g., People v.

Weaver (2001) 26 Cal.4th 876, 924 (Weaver).) Similarly, Cornwell did not

suggest she was affected by the monitoring of her telephone, or by her

understanding that defendant was suspected of murder.

Significantly, Cornwell acknowledged she was allowed to consult with both

defendant and an attorney before giving her permission. Despite her stress, she

had the presence of mind to insist on doing both. Though she signed a written


consent form only after her arrest, she gave oral permission well before that


Cornwell did testify at the suppression hearing on retrial that she was

threatened with the loss of her children, and that an officer roughly handled her

infant daughter, with the purpose, Cornwell believed, of “intimidat[ing]” her.

However, based on the contrary testimony of Detective Ritter, and its observation

of both witnesses, the trial court declined to credit Cornwell on these points. We

have no basis to disagree. (See Jenkins, supra, 22 Cal.4th 900, 973.) In our view,

the record, now fully developed, amply demonstrates that Cornwell gave voluntary

consent to the search of the El Monte house.21


There is no evidence the officers specifically told Cornwell she had a right

to refuse consent, but such advice is not essential to a finding of valid consent.
(Schneckloth, supra, 412 U.S. 218, 231.)


Defendant urges that even if the searching officers did not actually threaten

to take Cornwell’s children, the officers knew (by overhearing Cornwell’s
telephone statements to her lawyer, Ohanessian, and by one officer’s direct
telephone exchange with Ohanessian) that Cornwell believed such threats had
been made. They therefore engaged in subtle “coercion,” he insists, by doing
nothing to allay Cornwell’s fears. However, the issue is whether the officers
obtained Cornwell’s consent by “official coercion” (Schneckloth, supra, 412 U.S.
218, 229), i.e., by “threat,” express or implied, or “force,” overt or covert (id. at
p. 228). While the subject’s personal characteristics, including his or her
“possibly vulnerable subjective [mental] state,” are relevant, in the totality of
circumstances, to whether the officers used coercive tactics (id. at p. 229), the
subject’s mere perception of coercion cannot support a finding of involuntary
consent when, in fact, there was no coercion, plain or subtle. Were it otherwise,
no search based on consent could be upheld against the subject’s testimony that he
or she perceived a threat. Moreover, we know of no case, and defendant has cited
none, for the proposition that the police, having made no threats, express or
implied, are guilty of “official coercion” (id. at p. 229) unless they take pains to
disclaim threats merely perceived by the subject.


5. “Tainted fruit” claim.

Finally, defendant urges that the testimony of Cornwell and John Kennedy,

and the admission into evidence of the knife, Levi’s, and wallet, are “tainted fruit”

of the illegal police conduct toward defendant himself, and are therefore subject to

suppression. In Boyer I, we concluded, based on the record then before us, that

regardless of the police illegality, the evidence there challenged (which did not

include Cornwell’s testimony) was nonetheless admissible because it would

inevitably have been discovered by lawful means.

As previously noted, defendant complains that the instant trial court

erroneously invoked the law of the case to foreclose full litigation of the issue of

“taint,” and to insulate the People from proving the evidence was not tainted. In

any event, he urges, the existing record does not support a conclusion that the

challenged evidence is untainted. The record does not show, he insists, that at

every step, the police investigation was proceeding on a lawful track which would

“inevitably” have procured the evidence at issue, or that the means by which such

evidence was obtained was otherwise “attenuated” from the original illegality. We

nonetheless confirm our prior conclusion that the evidence under scrutiny was

properly admissible.

Evidence need not be suppressed as “fruit of the poisonous tree,” though

actually procured as the result of a Fourth Amendment violation against the

defendant, if it inevitably would have been obtained by lawful means in any event.

(Nix v. Williams (1984) 467 U.S. 431, 441-448 (Nix).) Moreover, suppression is

not necessarily required even if the evidence would not have come to light but for

an infringement of the defendant’s Fourth Amendment rights. (Wong Sun v.

United States (1963) 371 U.S. 471, 487-488 (Wong Sun).)

Rejecting a strict “but for” test, the United States Supreme Court has

admonished that in such cases, “the more apt question . . . is ‘whether, granting


establishment of the primary illegality, the evidence to which instant objection is

made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.’ [Citation.]” (Wong

Sun, supra, 371 U.S. 471, 488.) “Under Wong Sun, evidence is not to be excluded

merely because it would not have been obtained but for the illegal police activity.

[Citation.] The question is whether the evidence was obtained by the

government’s exploitation of the illegality or whether the illegality has become

attenuated so as to dissipate the taint. [Citation.]” (People v. Caratti (1980)

103 Cal.App.3d 847, 851.)

Relevant factors in this “attenuation” analysis include the temporal

proximity of the Fourth Amendment violation to the procurement of the

challenged evidence, the presence of intervening circumstances, and the flagrancy

of the official misconduct. (Brown v. Illinois (1975) 422 U.S. 590, 603-604

(Brown).) Where the testimony of live witnesses is at issue, the test focuses

primarily on the effect of the illegality on the witness’s willingness to testify, and

less on whether illegal conduct led to discovery of the witness’s identity. (United

States v. Ceccolini (1978) 435 U.S. 268, 276-277.)

Granting, as we do, the prosecution’s burden of proof on issues of

attenuation, including inevitable discovery (See, e.g., Nix, supra, 467 U.S. 431,

447; Dunaway v. New York (1979) 442 U.S. 200, 204), we may nonetheless

resolve such issues on appeal, even if not explicitly litigated below, if their factual

bases are fully set forth in the record. (E.g., People v. Robles (2000) 23 Cal.4th

789, 801, fn. 7; People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19 (Clark); Green v.

Superior Court (1985) 40 Cal.3d 126, 137-138 (lead opn. of Kaus, J.).) We

conclude that such is the case here.

Defendant first contends there is no proof the police, lacking hard evidence

of defendant’s involvement in the Harbitz murders, would inevitably have sought


Cynthia Cornwell’s cooperation, including her consent to search the El Monte

house. For a contrary inference, defendant stresses Detective Lewis’s testimony

that, on December 14, 1982, if defendant had not been home and if Cornwell had

proven uncooperative, Lewis would simply have gone away.

However, as we noted in Boyer I, “[l]acking a ready suspect for two brutal

homicides, the police were pursuing a broad-based investigation of every person

who might possibly be involved.” (Boyer I, 48 Cal.3d 247, 278; see also People v.

Carpenter (1999) 21 Cal.4th 1016, 1040 [noting “sheer size and scope of the

investigation” as factor bearing on inevitability that evidence would be

discovered].) Information received from William Harbitz had focused particular

suspicion on defendant. The police evidenced this suspicion, and their intent to

pursue it, in numerous ways. Detectives learned where, and with whom,

defendant lived. They surrounded his El Monte home, detained him, and asked

him to accompany them to the Fullerton police station for an interview. When

they departed with defendant, they left officers behind in El Monte, poised to

commence a search of the house if the opportunity presented itself.

Then, before defendant had said anything incriminating that might further

isolate him as a suspect, the police asked for his consent to search the El Monte

house.22 When defendant said it was up to Cornwell, they immediately pursued

that avenue by dispatching the officers who were standing by in El Monte to

request Cornwell’s permission. Under these circumstances, the record sufficiently


Before being transported to the Fullerton station on the evening of

December 14, 1982, and before hearing his Miranda rights, defendant mentioned
that, earlier in the week, he had used a car belonging to the mother of his friend
John Kennedy to visit his own parents in La Mirada. (Boyer I, supra, 48 Cal.3d
247, 277.) While the La Mirada destination was relatively near the murder scene
(ibid.), there is nothing to indicate that this remark, made at this stage of the
investigation, further aroused police interest in defendant as a suspect in the
Harbitz murders.


establishes that, aside from their illegal detention and interrogation of defendant,

the police meant to search the house, and to do so with the permission of an

authorized consenter if possible.

Defendant next urges the evidence fails to show that, absent the illegal

police conduct against defendant, Cornwell would inevitably have consented to

the search. We need not resolve this question directly because, even if Cornwell’s

consent was not “inevitable”—i.e., even if, in the strictest sense, it might not have

been obtained “but for” the illegal conduct—it was nonetheless sufficiently

attenuated from the primary illegality to purge any taint. (Wong Sun, supra,
371 U.S. 471, 477-488.)

When the accused claims a consent to search is tainted by a prior Fourth

Amendment violation, mere voluntariness of the consent is not enough to dissipate

the taint. (E.g., United States v. Bautista (9th Cir. 2004) 362 F.3d 584, 592;

People v. Richard (5th Cir. 1993) 994 F.2d 244, 252 (Richard).) In such cases, we

must additionally examine the “attenuation” factors set forth in Brown, supra,
422 U.S. 590, to determine whether, on the particular facts, the twin purposes of

the “poisonous fruit” rule—to deter the exploitation of official misconduct and to

promote judicial integrity—are outweighed by the cost of excluding the

challenged evidence.

We first consider temporal proximity. The request for Cornwell’s

permission to search occurred several hours after defendant was taken to the

Fullerton police station. In the meantime, Cornwell was left alone. The

substantial lapse of time between the Fourth Amendment violation and the

challenged consent weighs in favor of a finding that any taint had dissipated.

Moreover, significant intervening events separated the Fourth Amendment

violation against defendant from Cornwell’s later voluntary consent to search. For

one thing, discussions with Cornwell about obtaining her permission for the search


occurred at a location remote from where defendant was being detained illegally.

(Compare, e.g., Richard, supra, 994 F.2d 244, 252 [finding, as a significant

intervening circumstance, that consent provided, in noncoercive circumstances, by

defendant’s girlfriend was remote in time and place from invalid consent given by

defendant himself; taint deemed purged even though girlfriend was told that

defendant had given consent].)

Moreover, Cornwell was permitted to consult not only with defendant,23

but with an attorney, before deciding whether to allow the search. Cases have

stressed that the opportunity for legal consultation is critically important in

determining whether a consent to search was purged of the primary taint of a prior

Fourth Amendment violation. Closely on point in this regard is United States v.

Wellins (9th Cir. 1981) 654 F.2d 550. There, police illegally entered the

defendant’s hotel suite, illegally conducted a “sweep search” of the premises, and

illegally arrested him. He then consented to a more complete search after he was

allowed, in the officers’ presence, to speak with his attorney by telephone. On

appeal, the court deemed this factor “dispositive” in determining that the consent


It is true that Cornwell’s conversation with defendant occurred while he

was still in police custody, and this may marginally weigh against a finding of
attenuation. Still, that fact seems to have had little bearing on the consent
ultimately obtained from Cornwell. In the conversation, defendant simply told her
that it was her decision. Cornwell never testified that defendant’s illegal custodial
status had any bearing on her decision to consent. On appeal, defendant
speculates vaguely about the possibility of a police “conspiracy” to enlist his aid in
obtaining Cornwell’s consent. But he never raised any such theory below, and the
record belies it by demonstrating that he provided no such aid—he simply
professed neutrality.


was sufficiently attenuated by intervening events from the prior illegal conduct,

and therefore valid. (Id. at p. 555.) Similar reasoning applies here.24

Finally, the police erred seriously by subjecting defendant to an illegal

custodial interrogation without a warrant or probable cause for his arrest. As a

consequence, all resulting statements obtained from defendant have been

suppressed. (Boyer I, supra, 48 Cal.3d 247, 275.) Nonetheless, we do not deem

the misconduct against defendant so “flagrant” as to require suppression of

evidence obtained as a result of Cornwell’s later voluntary consent to search. It

does not appear the one had any strong bearing on the other. Cornwell did not

suggest her consent was influenced by the fact of defendant’s illegal arrest, and

her consent was obtained by means essentially independent of the specific

illegalities committed against defendant. Accordingly, we conclude the consent

was not “ ‘come at by exploitation of [the primary] illegality, [but] by means

sufficiently distinguishable to be purged of the primary taint.’ ” (Wong Sun,


(See also, e.g., United States v. Washington (9th Cir. 2004) 387 F.3d 1060,

1073-1074 [where defendant’s consent occurred shortly after police illegally
arrested him and viewed interior of his hotel room, his signature on consent form
advising of right to refuse consent did not substitute, as significant intervening
event, for appearance before a magistrate or consultation with an attorney]; United
States v. McCoy
(D.Or. 1993) 839 F.Supp. 1442, 1447 [consent to search given by
defendant’s handcuffed girlfriend, minutes after both were illegally called out of
their home and arrested, was not purged of primary taint; brief opportunity to
consult with family members was not akin to consultation with attorney that might
constitute significant intervening circumstance]; also cf. United States v. Kelley
(5th Cir. 1993) 981 F.2d 1464, 1471-1472 [even if “seat belt” detention and
questioning of defendant driver was illegal, at-the-scene consent to search vehicle
by its owner-passenger was purged of primary taint by police advice of her right to
refuse consent].)


supra, 371 U.S. 471, 488.) That being so, the cost of excluding the highly relevant

evidence thereby obtained outweighs the deterrent value of suppressing it.25

We remain persuaded, as in Boyer I, that once Cornwell did validly consent

to the search of the El Monte house, the challenged testimony and physical

evidence would inevitably have been procured. When alerted that defendant had

indicated where to find the Levi’s and knife, officers were already searching the

bedroom in which these articles were located. Because both items contained

blood, no competent officer would have overlooked them in any event. (Boyer I,

supra, 48 Cal.3d 247, 277, fn. 18.) The subsequent forensic analyses would have

confirmed their evidentiary significance to the case.

As defendant observes, he also told police he had worn the blue jacket on

the night of the Harbitz murders, and this led the searching officers to ask

Cornwell about it. However, they inevitably would have come upon the jacket

evidence anyway. A thorough and competent search of the El Monte house could


Defendant claims the police misconduct here was more egregious than in

People v. Superior Court (1969) 71 Cal.2d 265 (hereafter Shasta County), a case
in which we found that a consent to search was not attenuated from a prior
illegality. There, during a traffic stop, a highway patrol officer illegally searched a
passenger’s purse, finding a small quantity of marijuana. He held the remaining
occupants of the stopped car at the scene for 30 minutes, without explanation,
while backup officers arrived. Then he approached the vehicle and asked another
passenger, the owner, for consent to search the car. That search disclosed larger
quantities of marijuana, leading to drug charges against the driver. On those
particular facts, we found a “straight” road from the first illegal search to the
subsequent consent, declining to hold, under the circumstances, that the 30-minute
hiatus between the two events was sufficient attenuation. (Id. at p. 274.) Here, by
contrast, there is no evidence that the illegal police conduct toward defendant was
the impetus for the decision to attempt to search the El Monte house. The request
for Cornwell’s consent came hours after defendant had been transported to the
Fullerton station, and at a residential location remote from the detention; Cornwell
was left free and unmolested in the meantime. She was allowed to consult an
attorney before deciding whether to consent. Nothing in Shasta County precludes
us from finding Cornwell’s consent valid.


hardly have missed the unusual spectacle, in plain view, of a hibachi containing

scraps of recently burned clothing, sitting atop the kitchen stove. Cornwell

testified in the prior trial that “ ‘little pieces of [the] jacket’ ” were still “ ‘flying

around’ ” “ ‘in the kitchen.’ ” (Boyer I, supra, 48 Cal.3d 247, 278, fn. 20, italics


Furthermore, even without defendant’s confession or the details supplied by

him, the police would have grasped the potential criminal significance of the

obvious fact that Cornwell had burned this item. Common sense did not readily

disclose an innocent reason for doing so. Accordingly, competent officers would

have inquired, as they did. Cornwell’s implausible explanation, that she burned

the jacket, without informing defendant, because she intended to buy him a new

one, would only have increased police suspicion.

Moreover, officers already had, or shortly would have, found the bloody

Levi’s and defendant’s knife containing traces of human blood. These

incriminating items tightened the evidentiary net around defendant and cast further

doubt on the innocent nature of Cornwell’s action. In addition, the police knew

she had burned the jacket immediately after he was taken from the El Monte house


to the Fullerton police station. The timing of her act enhanced the compelling

inference that she was destroying evidence.26

Under these circumstances, the police undoubtedly would have pressed the

issue by explaining to Cornwell her vulnerability as an accessory. Most likely

they would have arrested her at that time, as they did. But even if not, they

certainly would have taken such action as soon as forensic analysis revealed that

the Levi’s recovered from the El Monte house contained blood consistent with that

of the murder victims. Cornwell conceded that her arrest and the legitimate threat

of prosecution as an accessory to murder were the prime factors leading to her

cooperation and eventual testimony.27

Finally, defendant insists there is no proof Kennedy would inevitably have

been found, or his testimony procured. However, it appears manifest that once

Cornwell agreed to cooperate, police would inevitably have learned of Kennedy’s


The evidence does not indicate that if Cornwell meant to destroy evidence,

she did so only because of the illegal police activities on the night of
December 14, 1982. Cornwell testified in the retrial itself that when defendant left
the El Monte house with Kennedy on December 7, he was wearing the blue jacket.
When the two men returned, Cornwell recounted, defendant’s Levi’s were
bloodstained, and he had a wound in his knee, for which he gave a suspicious
explanation. Cornwell also indicated that earlier on December 14, defendant
seemed upset after receiving a telephone call from his mother; when Cornwell
asked what was wrong, defendant said “something about a murder” and told
Cornwell “you are going to hate me.” Shortly thereafter, the police arrived and
departed with defendant, leaving nobody behind to secure the premises. Thus, at
most, they merely gave Cornwell the opportunity to get rid of an item she already
had every reason to suspect was evidence in a murder case.


We need not give dispositive effect to Detective Lewis’s testimony that it

would not have been appropriate to arrest anyone as an accessory for burning the
jacket until after defendant confessed. Lewis was suggesting, at most, that other
evidence of defendant’s guilt would have been required. Forensic analysis of the
bloody Levi’s would inevitably have produced such evidence.


involvement and obtained his cooperation. As she testified in both trials, Cornwell

knew Kennedy had left and returned with defendant on the night of the murders.

She undoubtedly would so have informed the police. Kennedy’s telephone

number was written down at the El Monte house. His address was traced from the

telephone number. (Boyer I, supra, 48 Cal.3d 247, 277.)

Defendant asserts that Kennedy’s cooperation cannot be deemed automatic,

especially in light of the fact that he “lied” to the police when they first spoke with

him. But the record belies defendant’s argument in several respects. At the prior

trial, there was evidence that as soon as the police told Kennedy they suspected his

involvement, he “ ‘became visibly shaken and stated that he didn’t want to go to

jail on that type of thing.’ ” (Boyer I, supra, 48 Cal.3d 247, 277.) At the 1992

retrial, Kennedy did testify that when detectives first contacted him, they simply

told him defendant claimed to have borrowed a car belonging to Kennedy’s

mother, and Kennedy did not contradict them. However, Kennedy insisted, he

later contacted the police on his own initiative and asked them to return for

another interview, because he “wanted to tell them the truth.” As a result of this

second interview, in which Kennedy admitted he was with defendant on the night

of the murders, Kennedy was arrested, and he gave the statements leading to his

immunized testimony at trial.

In sum, the record, as augmented by the retrial suppression hearing,

demonstrates that the physical and testimonial evidence introduced against

defendant was not the product of improper coercion, and would inevitably have

been obtained, or was otherwise procured by means sufficiently attenuated from

the Fourth Amendment violation committed against defendant. Hence, we affirm

our conclusion in Boyer I, supra, 48 Cal.3d 247, that this evidence was not



B. Kennedy’s immunity agreement.

John Kennedy testified for the prosecution pursuant to an immunity

agreement. Defendant claims the agreement was improperly coercive, in that it

obliged Kennedy, as a condition of immunity, to testify in strict accordance with

certain prior statements he gave the police. Admission of this coerced testimony,

defendant avers, violated his Fifth and Fourteenth Amendment rights to due

process; his Sixth Amendment rights to a fair trial, fair cross-examination, and a

jury trial; and his Eighth and Fourteenth Amendment rights to reliability in the

guilt and sentencing phases of a capital trial. (See, e.g., People v. Riel (2000)

22 Cal.4th 1153, 1179; Allen, supra, 42 Cal.3d 1222, 1251.)

At the outset, defendant has forfeited the claim by failing to raise it below.

In both trials, defendant urged that Kennedy’s testimony was the “tainted fruit” of

illegal police conduct against defendant (see text discussion, ante), but defendant

never asserted, until now, that the immunity agreement was coercive as to

Kennedy for the reasons advanced in this appeal. (People v. Kennedy (2005)

36 Cal.4th 595, 612.)28


Defendant urges that, despite the lack of a specifically focused objection,

the issue was before the court by virtue of defense counsel’s cross-examination of
Kennedy concerning the terms of the grant of immunity. (See text discussion,
post.) We disagree. This examination, in the course of Kennedy’s trial testimony,
was intended only to impeach Kennedy’s credibility before the jury. The defense
never asked the trial court to exclude or strike Kennedy’s testimony on grounds
that his grant of immunity was improperly coercive.


Moreover, defendant’s argument on appeal is clearly meritless. Defendant

has materially mischaracterized the agreement at issue.

The written immunity agreement, entered before the original trial, said

Kennedy had been told that he would not be prosecuted for “any act or fact

concerning which [he] was required to testify in this case,” but that “this immunity

does not extend to any false testimony that may be given under oath by [him] in

this case, which testimony would make [him] subject to prosecution for perjury.”

Further, the agreement stated, “the witness has represented that [his] testimony . . .

will be in substance as follows: Consistent with the tape recorded statements

given to Fullerton Police Department, Detective Lewis, on December 17, 1982,

. . . and December 20, 1982, . . . [t]ranscriptions of which are attached hereto and

incorporated by reference.” At the preliminary hearing, the magistrate explained

to Kennedy that, under the agreement, “the District Attorney can prosecute if they

find that you have lied, prosecute you for perjury.”

During cross-examination of Kennedy at the retrial, defense counsel asked

Kennedy whether it was explained to him, in court proceedings concerning the

immunity agreement, “that if your testimony was inconsistent with what you had

been telling the District Attorney . . . that all bets were off and you could be

prosecuted for this case again.” Kennedy replied, “Yes.” On redirect, however,

the prosecutor asked Kennedy whether “you [were] ever told anything by a

member of the District Attorney’s office other than to testify truthfully,” and

whether “you [were] ever told what to testify to or how to testify.” Kennedy

answered both questions “[n]o.”

A prosecutor may grant immunity from prosecution to a witness on

condition that he or she testify truthfully to the facts involved. (People v. Green

(1951) 102 Cal.App.2d 831, 838-839.) But if the immunity agreement places the

witness under a strong compulsion to testify in a particular fashion, the testimony


is tainted by the witness’s self-interest, and thus inadmissible. (People v. Medina

(1974) 41 Cal.App.3d 438, 455.) Such a “strong compulsion” may be created by a

condition “ ‘that the witness not materially or substantially change her testimony

from her tape-recorded statement already given to . . . law enforcement officers.’ ”

(People v. Medina, supra, 41 Cal.App.3d at p. 450.)

On the other hand, we have upheld the admission of testimony subject to

grants of immunity which simply suggested the prosecution believed the prior

statement to be the truth, and where the witness understood that his or her sole

obligation was to testify fully and fairly. Thus, in People v. Fields (1983)

35 Cal.3d 329 (Fields), defense counsel elicited from a prosecution witness that

her immunity was conditioned on testimony consistent with her prior statement.

On redirect, however, the witness made clear that her prior statement was the

truth, that the prosecutor had asked her to testify to the truth, and that she was

never asked to testify to a certain story. (Id. at pp. 359-360.) As we explained, the

record suggested, at most, that the witness understood she was obliged to recount

her prior statement because it was the truth. We found the evidence insufficient to

conclude that the grant of immunity required the witness to testify in accord with a

prior statement regardless of its truth. (Id. at pp. 360-361.)

Similarly, in People v. Garrison (1989) 47 Cal.3d 746 (Garrison), witness

Roelle’s plea agreement, as disclosed at his preliminary hearing, provided that

Roelle would testify truthfully at Garrison’s trial, and that “ ‘a further part of this

. . . agreement is that. . . [Roelle] has already truthfully stated to the investigating

detectives what happened in this case.’ ” (Id. at p. 768, italics omitted.) Roelle’s

counsel advised the court that Roelle had passed a polygraph examination, and the

prosecutor examined Roelle on voir dire to confirm the latter’s understanding that,

as part of his bargain, “ ‘he [was] going to come in and tell the truth about what

happened.’ ” (Ibid.)


On this record, we declined to accept the premise that Roelle’s bargain was

conditioned on the truthfulness of his prior statements. Rather, we noted that as in

Fields, “the record does not demonstrate either that the plea bargain required

Roelle to testify in accord with his statement regardless of its truth, or that Roelle

so understood the agreement.” Instead, we observed, “the record reflects that the

district attorney and Roelle’s counsel sought to ensure that the record reflected the

factual basis for their belief that permitting Roelle to plead guilty to the lesser

charges would be appropriate in light of their understanding of his actual

involvement in the offenses.” (Garrison, supra, 47 Cal.3d 746, 770.) We held

that “unless the bargain is expressly contingent on the witness sticking to a

particular version, the principles of [People v.] Medina, supra, 41 Cal.[App.]3d

438, and [People v.] Green, supra, 102 Cal.App.3d 831, are not violated.”

(Garrison, supra, at p. 771, italics added.)

That reasoning governs here. The grant of immunity to Kennedy, by its

terms, was based on his truthful testimony, which Kennedy himself “represented”

would be in accordance with his prior statements. Thus, the agreement simply

reflected the parties’ mutual understanding that the prior statements were the truth,

not that Kennedy must testify consistently with those statements regardless of their

truth. Kennedy so confirmed on the stand.29 Accordingly, Kennedy’s testimony

was not rendered inadmissible by the terms of his grant of immunity.


Indeed, Kennedy’s trial testimony departed from the specified statements in

at least one significant respect. In his taped police interviews of December 17 and
December 20, 1982, Kennedy consistently denied that he had consumed any drugs
before he drove defendant to the Harbitzes’ residence on December 7, 1982, and
he also stated he did not see defendant do so. At the retrial, by contrast, he
testified that he and defendant ingested cocaine together before proceeding to the
victims’ residence. (See text discussion, ante, p. 5.)


C. Cornwell’s immunity agreement.

Defendant makes similar arguments concerning Cornwell’s grant of

immunity, and we reach the same results. As with Kennedy, the defense never

objected below that Cornwell’s testimony should be excluded because her

immunity agreement improperly forced her to testify to a certain version of events

regardless of its truth. Hence, the claim is forfeited.

It is also meritless. Cornwell’s grant of immunity, like Kennedy’s,

specified that the immunity did not extend to false testimony, which could make

the witness subject to prosecution for perjury. The immunity agreement also

stated that “the witness represented that the testimony of the witness will be

truthful and in substance as follows: consistent with the statements and

information given to the Fullerton Police Department Investigation Officers in the

attached reports. . . .” (Italicized words added by handwritten interlineation.) At

the suppression hearing on retrial, Cornwell indicated she understood that if she

testified falsely, she could be prosecuted for perjury, and she insisted that she had

testified truthfully, pursuant to this agreement, at the prior trial.

Thus, Cornwell’s grant of immunity, like Kennedy’s, simply reflected the

parties’ mutual understanding that the information the witness had previously

supplied to the police was truthful, not that the witness had to iterate her prior

statements, regardless of their truth. The witness confirmed her understanding

that, to retain immunity, she must testify truthfully. As discussed above, at the

retrial suppression hearing, Cornwell implied that her testimony was obtained by

improperly coercive police and prosecutorial tactics. We have rejected that claim.

(See text discussion, ante, pp. 38-39.) Nothing in Cornwell’s assertions on this

subject implies she was coerced to testify falsely, or to a particular version of


events, in return for immunity. Cornwell’s testimony was not subject to exclusion

on the ground now asserted.30



A. Defendant’s statements to defense mental health experts as “fruit of
the poisonous tree.”

Defendant urges the trial court wrongly allowed the prosecutor, at the 1992

guilt trial, to cross-examine the defense mental health expert, Dr. Klatte, about

damaging statements defendant made to other experts who were consulted by the

defense prior to the original trial but after the erroneous denial of defendant’s

motion to suppress his confession to the police. Defendant insists that if the

confession had been suppressed in advance of the original trial, as should have

occurred (Boyer I, supra, 48 Cal.3d 247, 267-275), these experts would not have

been consulted, and their reports or testimony containing defendant’s damaging

statements would thus not have been available for use in cross-examining Dr.


Accordingly, defendant argues, this material was the “tainted fruit” of his

confession obtained in violation of his rights under the Fourth Amendment and

Miranda v. Arizona, supra, 384 U.S. 436. As such, he insists, it could not be used

to impeach a defense witness. (Citing James v. Illinois (1990) 493 U.S. 307


Defendant posits that the presumed reliability of immunized testimony, and

the ability of informed juries to assess such reliability, are “legal fictions.” Hence,
he argues, as to both Kennedy and Cornwell, that (1) their testimony should have
been excluded because it was improperly obtained in return for promises of
leniency, and (2) the Eighth Amendment’s concern for reliability in capital cases
required the trial court, before admitting immunized testimony, to make special
findings that it contained particularized guarantees of trustworthiness. The
contentions are forfeited because they were not raised in the trial court. In any
event, they lack support in the case law and run contrary to well-settled precedent
that grants of immunity conditioned solely on truthful testimony are valid.


(James).) Defendant asserts violations of his rights under the Fifth, Sixth, Eighth,

and Fourteenth Amendments. We reject the contention.

1. Factual and procedural background.

The issue arises in the following factual context: Dr. Klatte was called by

the defense at the 1992 guilt trial to testify concerning defendant’s probable

mental state during the attack on the Harbitzes. As a basis for his expert opinion,

Dr. Klatte testified at length about defendant’s descriptions of these events

obtained in the course of their interviews.

Just before Dr. Klatte took the stand, defendant’s counsel moved in limine

to preclude cross-examination of the witness about defendant’s statements

contained in reports and testimony of other experts consulted by the defense prior

to the original trial. Counsel represented as follows: In advance of the first trial,

after the motion to suppress defendant’s confession was erroneously denied, the

defense “had to make some decisions.” The defense consulted psychiatrists Dr.

Loomis and Dr. Kaufman, who interviewed defendant, obtained information from

him, and wrote reports. Counsel supplied these reports to Dr. Klatte, “who was

[also] involved in the case back then.” If the motion to suppress had been granted,

“defendant wouldn’t have gone to -- and talked to” Dr. Loomis and Dr. Kaufman,

and counsel would not have furnished their reports to Dr. Klatte. Moreover, the

defense would not have put psychopharmacologist Dr. Siegal on the stand at the

prior trial, thus making available, for use in cross-examining Dr. Klatte, Dr.

Siegal’s report and testimony containing statements made to him by defendant.

Counsel argued that because the reports and testimony of Dr. Loomis, Dr.

Kaufman, and Dr. Siegal were thus “tainted fruit” of defendant’s invalid

confession, their use to impeach Dr. Klatte would violate defendant’s Fourth and

Fifth Amendment rights. The trial court denied the motion to limit cross-


examination, ruling that while the prosecution could not use defendant’s statement

to the police to impeach a defense witness, statements voluntarily made by

defendant to defense experts could be used to cross-examine Dr. Klatte as to the

basis for his expert opinion.31

On direct examination, Dr. Klatte testified, among other things, that in

1990, appellant said he was “tripping” at the Harbitz residence, felt like he was in

the movie Halloween II, and “actually hallucinated a man coming at him with a

knife.” However, Dr. Klatte related, in earlier interviews, in 1982 and 1983,

defendant did not mention this hallucination. Hence, Dr. Klatte stated, he did not

use the “hallucination” statement to form any conclusions about defendant’s

mental state at the time of the homicides, “because I felt if he hadn’t told me the

first time, I wasn’t sure that it was true.”

Dr. Klatte also recounted claims by defendant about his drug history and

the drugs he consumed on December 7, 1982. According to Dr. Klatte, defendant

said that around the time of the murders, he had for some time been injecting

cocaine almost daily, and was drinking considerably. Defendant indicated that, on

the day of the murders, he drank a fair amount of beer in the morning, ingested a

half-pint of whiskey in the afternoon, and smoked a PCP cigarette. He also

confirmed sharing a quarter-gram of cocaine with Kennedy.

Dr. Klatte noted that cocaine use can make people aggressive, impulsive,

and manic, and that those who use cocaine over a long period can become

psychotically paranoid and delusional. He also explained that PCP ingestion is

associated with distorted perception, hallucinations, and “very aggressive,

31 The court also denied a defense objection, under Evidence Code section 352,
that the challenged impeachment evidence was more prejudicial than probative,
but did so without prejudice to renewal of the motion in the course of Dr. Klatte’s
testimony. The motion was not renewed, and defendant does not claim error on
that basis.


explosive kinds of behavior.” Dr. Klatte opined that if defendant told the truth

about the drugs he ingested on December 7, 1982, he would be acting

thoughtlessly and explosively and could misinterpret events around him.

Moreover, Dr. Klatte indicated, defendant’s ingestion of PCP on the day of the

murders “might” have caused him to hallucinate.

On cross-examination by the prosecutor, Dr. Klatte admitted that defendant

has an antisocial personality, and that one would “highly suspect” malingering by

such a person seeking a diagnosis for use in a murder trial. Dr. Klatte agreed that

this suspicion would “go even stronger” upon hearing something different from

defendant in 1990 (i.e., the hallucination claim) than “from his same mouth in ’82

and ’83.” Dr. Klatte also acknowledged that, despite defendant’s claims of drug-

induced hallucinations and memory loss, much of his activity on the night of the

murders seemed directed toward obtaining money for drugs.

The prosecutor examined Dr. Klatte at some length on the report and prior

testimony of Dr. Siegal. The thrust of this examination was that, in contrast to the

relatively sketchy drug-use information defendant gave Dr. Klatte, defendant had

provided Dr. Siegal a more detailed account indicating that, since adolescence, he

had been a serious, chronic abuser of many illegal substances. The prosecutor

apparently sought to show that if defendant did not tell Dr. Klatte (or if Dr. Klatte

did not learn) the whole truth about defendant’s drug history, Dr. Klatte’s final

conclusions about the effect of drugs on defendant’s conduct might be similarly

flawed. More specifically, the prosecutor also sought to undermine Dr. Klatte’s

basic opinion—that defendant may have killed the Harbitzes because he was under

the influence of drugs—by suggesting grounds for an inference that defendant

simply robbed and killed the Harbitzes to get money for his chronic drug habit.

Dr. Klatte responded by noting that, while he did not recall everything in

Dr. Siegal’s report and testimony, Dr. Siegal’s account was generally consistent


with Dr. Klatte’s own understanding of defendant’s drug background. Dr. Klatte

also iterated that defendant’s antisocial personality, and his consequent capacity

for lying and malingering, had come through “loud and clear” in their face-to-face


The prosecutor also asked whether Dr. Klatte recalled that when Dr. Siegal

suggested to defendant he might have been playing the role of the character

“Michael Myers” in Halloween II, defendant denied doing so. Dr. Klatte said he

did not recall that. Finally, on recross-examination, the prosecutor queried

whether Dr. Klatte agreed with Dr. Kaufman “that the hallucination and flashback

is unlikely.” In response, Dr. Klatte said he “wasn’t convinced that [defendant]

actually hallucinated.”

Citing the “poisonous tree” analysis of James, supra, 493 U.S. 307, the

defense proposed an instruction that evidence elicited on cross-examination of Dr.

Klatte about what defendant told Dr. Siegal and Dr. Kaufman should be

disregarded. The instruction was refused.

In his argument to the jury, the prosecutor posed the rhetorical question

why, if there was corroboration for what defendant told Dr. Klatte, the defense had

not called the psychopharmacologist, Dr. Siegal. Defendant objected that this was

inappropriate comment on the defendant’s failure to call witnesses, and might also

be “compound[ing]” what “is already error” under James. The objection was

overruled. The prosecutor then remarked, “If the defendant had that much to say

about pycho -- about the drugs and everything, the psychopharmacologist, we

would have heard about it.”

2. Discussion.

As indicated above, defendant insists that the defense decisions to have Dr.

Kaufman and Dr. Siegal interview defendant and prepare reports, to furnish Dr.


Kaufman’s report to Dr. Klatte, and to put Dr. Siegal on the stand in the prior trial

were dictated by the erroneous denial, in the earlier proceedings, of his motion to

suppress his illegally obtained confession. Hence, defendant urges, those reports

and testimony were “tainted fruit” of the illegal police conduct, and thus could not

be used to impeach Dr. Klatte. For multiple reasons, we disagree.

In the first place, the factual premise upon which defendant relies is

dubious. Prior to the original trial, defendant’s motion to suppress was denied in

its entirety. This allowed not only defendant’s confession, but other strong

evidence of his identity as the Harbitzes’ killer (including the testimony of

Cornwell and Kennedy, and the incriminating physical evidence recovered from

the El Monte house) to be introduced against him. As we later concluded in

Boyer I, supra, 48 Cal.3d 247, and in the instant appeal (see discussion, ante, p. 37

et seq.), this other evidence was properly admitted. We find it difficult to infer

that the tactical decisions defendant identifies were made solely on the basis of the

improperly admitted confession.32

In any event, the trial court’s ruling was correct. On direct examination,

Dr. Klatte was allowed to describe statements made to him by defendant as

matters considered by Dr. Klatte in forming his expert opinion of defendant’s

mental state. (Evid. Code, § 802; see People v. Montiel (1993) 5 Cal.4th 877, 918-


Defendant’s factual claims are further undermined by his concession that

Dr. Klatte was also involved in the case prior to the original trial. Because Dr.
Klatte appeared as a defense witness in the retrial, from which the illegal
confession was excluded, there obviously is no claim that his involvement is only
as a result of the erroneous earlier failure to suppress the confession. On retrial,
the defense also presented testimony by a psychopharmacologist, Dr. Plon. Thus,
the illegal confession aside, the defense has consistently perceived the need to
explore, and ultimately to present, evidence that the killings were committed while
defendant was in an altered mental state influenced by the ingestion of drugs. In
substance, defendant’s dilemma is simply that he prefers some of the expert
opinions he obtained over others.


919 (Montiel).) Accordingly, under general evidentiary principles, the prosecution

could challenge the credibility of that opinion by confronting Dr. Klatte with

defendant’s inconsistent statements to other defense experts, as included in

testimony or reports to which Dr. Klatte had access in forming his own

conclusions. (See Evid. Code, § 771, subd. (b); Montiel, supra, at pp. 923-924.)

Defendant concedes as much.

However, defendant claims defendant’s statements to Dr. Kaufman and Dr.

Siegal were nonetheless inadmissible to impeach Dr. Klatte because they were the

“tainted fruit” of his illegal confession. We disagree.

Under certain circumstances, evidence obtained in violation of the

defendant’s rights, though unavailable for use in the prosecution’s case-in-chief,

can be used to impeach an accused who elects to testify in his or her own behalf.

(See United States v. Havens (1980) 446 U.S. 620; Oregon v. Haas (1975) 420

U.S. 714; Harris v. New York (1971) 401 U.S. 222; Walder v. United States (1954)
347 U.S. 62.) In such cases, the interest in deterring illegal police conduct is not

sufficient to accord the defendant a license to commit perjury.

However, in James, supra, 493 U.S. 307, the court held that the

impeachment exception to the exclusionary rule does not apply to defense

witnesses other than the defendant himself. The court explained that the concern

with perjury in such cases is insufficient to allow the state to “brandish” illegally

obtained evidence as a sword to chill defendants “from presenting their best

defense—and sometimes any defense at all—through the testimony of others.”

(Id. at pp. 314-315.) Moreover, the court indicated, extending the “impeachment”

exception beyond the narrow confines of the accused’s own testimony to all

defense witnesses would unduly encourage police misconduct by preserving a

broad area in which the evidence could be used despite its illegal procurement.

(Id. at pp. 317-319.)


Though defendant insists otherwise, that reasoning has no application here.

Dr. Klatte was not cross-examined with evidence illegally obtained by the police.

Defendant and his counsel created the basis for impeachment themselves by their

voluntary decisions to consult Dr. Kaufman and Dr. Siegal, obtain reports from

these experts, furnish the reports to another defense expert, Dr. Klatte, present Dr.

Siegal’s testimony in the prior trial, and have Dr. Klatte himself testify in the


Defendant urges that probative material is not free of taint in prosecution

hands simply because it came into being as the result of tactical decisions by the

defense, if the defense’s motivation was to counter the prosecution’s use of

illegally obtained evidence. Thus, defendant notes, an accused’s own testimony

may be tainted by illegal police conduct if the reason he took the stand was to

rebut his wrongfully obtained extrajudicial statements introduced against him by

the prosecution. (Harrison v. United States (1968) 392 U.S. 219; see Boyer I,

supra, 48 Cal.3d 247, 280; People v. Spencer (1967) 66 Cal.2d 158, 164.) In such

a case, as Harrison explained, the testimony is itself “the fruit of the poisonous

tree, to invoke a time-worn metaphor.” (Harrison, supra, at p. 222.)

The situation before us, however, is a far cry from the one presented in

Harrison. In a case like that, the prosecution seeks, in effect, to circumvent the

invalidity of an illegal confession, and to obtain its full benefit, by arguing that the

defendant provided similar information through live testimony he was forced to

give because the confession was introduced against him.

Here the prosecution did not seek to profit from defendant’s wrongly

admitted confession by pointing to testimony, or other evidence, defendant himself

felt forced to introduce in order to counter the confession’s effects. Instead, the

prosecutor cross-examined a defense expert—whose testimony was voluntarily

proffered in a retrial from which defendant’s illegal confession had been


excluded—about the foundation for the expert’s opinion. The basis for

impeachment was not the confession, or any testimony defendant gave in direct

consequence thereof, but otherwise pertinent and admissible evidence generated

by the defense as part of its own preparation for the prior trial.

It would stretch the “tainted fruit” doctrine beyond breaking to hold that

this witness, presented by the defense in a trial free of the illegal confession, may

escape impeachment with information voluntarily compiled by the defense itself,

and may thus assume a misleading aura of credibility, simply because the defense

obtained the self-damaging information out of concern that the prosecution would

introduce the confession in an earlier trial. In no meaningful sense did the

prosecution “come at” the challenged impeachment evidence by “exploitation” of

the “primary illegality” of defendant’s confession. (Wong Sun, supra, 371 U.S.

471, 488.) Denying the prosecution the use of the impeachment evidence in this

attenuated context33 would significantly undermine the truth-seeking process

while having a negligible deterrent effect on police misconduct. We decline to

strike that balance.34


Defendant insists there is no “independent intervening act” sufficient to

break the causal chain between the illegal confession and the prosecution’s use of
the challenged impeachment evidence, and thus dissipate the taint. (Citing
People v. Sims (1993) 5 Cal.4th 405, 445.) On the contrary, the defendant’s
decision to present Dr. Klatte as an expert witness in a trial free of the illegal
confession amply serves that purpose. Under such circumstances, defendant
simply cannot insulate this witness from damaging impeachment with information
defendant himself voluntarily provided to other defense experts.


As the People point out, at least one decision has held that James, supra,
493 U.S. 307, does not preclude the impeachment of a defense expert with
defendant’s suppressed statement to the police. (Wilkes v. United States (D.C.
1993) 631 A.2d 880, 885-891.) This case is several steps removed even from that


In a related aside, defendant suggests he was somehow denied his Sixth

Amendment rights to present witnesses in his defense, and to the effective

assistance of counsel, insofar as he was unable to call other experts, such as Dr.

Siegal, for fear they would be impeached in violation of the James rule, as Dr.

Klatte purportedly was. Moreover, defendant complains, this disability was

improperly exploited by the prosecutor in his remarks to the jury. The argument is

nonsense.35 That defendant may originally have consulted those experts in

consequence of defendant’s illegal confession has no bearing on his ultimate

decision whether to call them in a later trial from which the confession was

excluded. And defendant fails to explain how they could be “impeached” with

their own “tainted” evidence. We reject the claim.

Finally, even if we found error, we would discern no prejudice under any

applicable standard. Dr. Klatte made clear that, independent of the reports and

testimony of Dr. Kaufman and Dr. Siegal, he seriously questioned the veracity of

defendant’s “hallucination” claim. Moreover, he indicated that the drug history

recounted by Dr. Siegal essentially conformed to his own understanding and did

not alter his conclusions. No basis for reversal of defendant’s convictions appears.

B. Failure to give limiting instruction on proper use of defendant’s
statements to defense experts.

Defendant urges the trial court erred in failing to instruct the jury, such as

by CALJIC No. 2.10,36 that his statements to the defense experts, as disclosed by


It is also disingenuous in the extreme. Defendant cannot urge, on the one

hand, that the reports and testimony of Dr. Siegal and Dr. Kaufman should have
been excluded as damaging impeachment of Dr. Klatte’s testimony, because he
would never have consulted those experts but for the prosecution’s anticipated use
of his illegal confession, yet argue, on the other, that he was denied an opportunity
he otherwise would have taken to call those witnesses directly.


CALJIC No. 2.10 provides: “There has been admitted in evidence the

testimony of a medical expert of statements made by the defendant in the course of


the testimony of Dr. Klatte, could not be considered for their truth, but only to

evaluate the basis of Dr. Klatte’s expert opinion. The error, he asserts, resulted in

lowering the prosecution’s burden of proof in violation of the Fifth Amendment,

denied him his Sixth Amendment rights to confront the nontestifying experts, and

contravened the Eighth Amendment’s concern for heightened reliability in capital


No instructional error occurred under California law. While the trial court

should give such an instruction upon request (Evid. Code, § 355; People v. Dennis

(1998) 17 Cal.4th 468, 532-534), it need not do so sua sponte. (E.g., Montiel,

supra, 5 Cal.4th 877, 918; People v. Cantrell (1973) 8 Cal.3d 672, 683.) Hence,

failure to request such an instruction in the trial court forfeits a direct appellate

claim that it should have been given. (Ibid.)

Defendant concedes he did not request a limiting instruction as such, but he

asserts that, for two reasons, he may nonetheless complain of the instructional

omission. First, he notes he did propose an instruction that evidence of the

statements defendant made to Dr. Kaufman and Dr. Siegal should be entirely

disregarded. (See text discussion, ante, at p. 61.) Even if this proposed

instruction was too broad, he insists, it generated a duty in the trial court to fashion

a correct, more limited substitute. (Cf., e.g., People v. Fudge (1994) 7 Cal.4th

1075, 1110; People v. Hall (1980) 28 Cal.3d 143, 159.)

However, the instruction defendant requested was premised on the theory

that his statements to particular experts, Dr. Kaufman and Dr. Siegal, were the

“tainted fruit” of defendant’s illegal confession, and were thus inadmissible for

an examination of the defendant which were made for the purpose of [diagnosis]
[treatment]. These statements may be considered by you only for the limited
purpose of showing the information upon which the medical expert based [his]
[her] opinion. This testimony is not to be considered by you as evidence of the
truth of the facts disclosed by defendant’s statements.”


any purpose. Neither defendant’s proposed instruction, nor his argument that it be

given, offered any hint of the completely different premise that all his statements

to experts, including Dr. Klatte, should be limited to their proper nonhearsay


Defendant urges that such a request would have been futile, because the

prosecutor, in opposing the proposed defense instruction, persuaded the trial court

that defendant’s statements to defense experts were admissible for all purposes,

including as substantive evidence of his mental state. We disagree with

defendant’s complaint. While the prosecutor did make such an argument, and the

trial court appeared at length to accept it, defendant was not prevented from

contradicting the prosecutor’s view and proposing a more limited instruction. He

simply failed to do so.

In any event, we discern no prejudice under any applicable standard.

Defendant’s strategy, in essence, was to tell his story through his expert witness—

i.e., to persuade the jury he might have killed the Harbitzes while mentally

impaired by drug ingestion, but to make that point without subjecting himself to

cross-examination by taking the stand personally to describe his symptoms and

reactions. Hence, insofar as they supported his claim, defendant wanted the jury

to believe his hearsay statements, at least those he made to Dr. Klatte.

Had defendant testified, he presumably could have been impeached with

inconsistent statements he gave to various doctors. By the same token, even if

defendant’s jury had been specifically instructed about the limited use it should

make of defendant’s hearsay statements to experts, the jury would nonetheless


The proposed instruction provided: “You must disregard for all purposes

testimony elicited from Dr. Ernest Klatte regarding statements [defendant] made
to Dr. Kaufman and Dr. Siegal regarding [defendant’s] history of drug abuse and
any exhibit which reflects those statements. This information should not have
been admitted into evidence and is hereby stricken.” (Italics added.)


understand that it must evaluate the credibility of those statements in order to

determine whether the experts’ resulting opinions were soundly based.

Under these circumstances, the line between use of defendant’s statements

for their substantive “truth,” on the one hand, and simply as the basis for doctors’

diagnoses on the other, is subtle indeed. There is no reasonable basis to conclude

the jury’s guilt verdict would have been altered had the limiting instruction

defendant now proposes been given. No ground for reversal appears.

C. Failure to instruct that Kennedy might be accomplice.

Defendant urges that the court, sua sponte, should have instructed the jury

to consider whether prosecution witness John Kennedy was an accomplice and, if

so, that his testimony (1) should be viewed with distrust and (2) required

corroboration by other evidence “tend[ing] to connect the defendant with the

commission of the offense.” (§ 1111; People v. Zapien (1993) 4 Cal.4th 929, 982

(Zapien).) Omission of such instructions, defendant insists, violated his Fifth and

Sixth Amendment due process and fair trial rights, as well as his Eighth

Amendment reliability interest in a capital trial.

The court need give such instructions only where there is substantial

evidence that the witness was an accomplice. (E.g., People v. Lewis (2001)

26 Cal.4th 334, 369 (Lewis); People v. Frye (1998) 18 Cal.4th 894, 965-966;

People v. Gordon (1973) 10 Cal.3d 460, 469-470; People v. Blevins (1960)

54 Cal.2d 71, 76.) “An accomplice is . . . one who is liable to prosecution for the

identical offense charged against the defendant” (§ 1111) and does not include an

accessory (§§ 31, 32; People v. Tewksbury (1976) 15 Cal.3d 953, 960). “An

accomplice must have ‘ “guilty knowledge and intent with regard to the

commission of the crime.” ’ [Citation.]” (Lewis, supra, at p. 369.)


As indicated above, Kennedy testified he drove defendant to the Harbitzes’

residence because defendant said he wanted to ask them how to contact their son

William. Kennedy stated he parked the car at some distance from the Harbitz

home, remained in the car while defendant went inside, never approached the

house himself, waited until defendant returned, then drove away when directed by

defendant to do so. Kennedy insisted he had no prior inkling of defendant’s intent

to kill and rob the Harbitzes, was not present at the murders, and did not

participate in those crimes. The record contains no contrary evidence.

Defendant insists the jury could infer Kennedy’s accomplice status because

Kennedy shared drugs with defendant on the night of the murders, and thus also

presumably shared defendant’s need for drug money. Moreover, defendant notes,

by his own admission, Kennedy “was involved with [defendant] at every step of

the process leading up to the homicides,” and the jury could infer he acted as a

“lookout.” Moreover, defendant points out that Kennedy helped him flee the

crime scene, with apparent knowledge that he had engaged in criminal activity,

and that Kennedy acknowledged he was initially arrested and charged with

conspiracy, accessory to murder, and accomplice to murder.

We need not decide whether accomplice instructions should have been

given on the premise that the jury could infer Kennedy was an aider and abetter,

and thus an accomplice, of crimes committed against the Harbitzes. If error

occurred, it was harmless by any applicable standard. Even where accomplice

instructions were required, we have found no prejudice where, in fact, the

witness’s testimony was sufficiently corroborated. (Zapien, supra, 4 Cal.4th 929,

982.) “ ‘Such [corroborative] evidence “may be slight and entitled to little

consideration when standing alone. [Citations.]” ’ (People v. Miranda (1987)

44 Cal.3d 57, 100.) ‘Corroborating evidence “must tend to implicate the

defendant and therefore must relate to some act or fact which is an element of the


crime but it is not necessary that [such] evidence be sufficient in itself to establish

every element of the offense charged.” [Citation.]’ (People v. Sully (1991)

53 Cal.3d 1195, 1228.)” (Zapien, supra, at p. 982.)

Here there was ample corroboration tending to connect defendant with the

commission of the Harbitz murders. Cynthia Cornwell testified that defendant left

the El Monte house with Kennedy, then later returned with him, on the night of the

murders. Cornwell confirmed that defendant came home with a stab wound in his

knee, then later hinted that he had been involved in a murder. The bloody Levi’s

recovered from defendant’s house contained stains that matched both of the

victims’ blood. Thus, any error in failing to instruct on Kennedy’s accomplice

status was harmless.38

D. Unconsciousness as complete defense.

The jury received instructions, among others, on robbery, both the

premeditated and felony-murder forms of first degree murder, express- and

implied-malice second degree murder, and voluntary and involuntary

manslaughter. Defendant requested, and received, an instruction that if, while


Defendant insists Kennedy was the sole witness tending to negate the

defense theory that defendant, while hallucinating under the influence of drugs,
attacked the Harbitzes in an honest, if unreasonable, belief in the need for self-
defense and was thus guilty, at most, of voluntary manslaughter. There was no
corroboration, defendant asserts, of Kennedy’s testimony that defendant seemed
sober, and acted rationally, both before he left the car to go into the Harbitz
residence, and after he returned. Even were we to accept the dubious proposition
that corroboration on these specific matters was required (see text discussion,
ante), we conclude it was amply provided by Cornwell. She also testified that
defendant seemed sober at all times she saw him on the evening of December 7,
1982. Moreover, the explanation he gave her for the wound in his knee (i.e., that
he got into an argument with a loan shark) was inconsistent with his theory that he
attacked the Harbitzes while in a delusional state. Finally, we note the concession
by Dr. Klatte that, according to defendant’s own statement, much of his activity on
the night of the murders appeared goal-directed, i.e., to obtain money for drugs.


unconscious as the result of voluntary intoxication, he killed without malice or

intent to kill, the crime was not murder, but involuntary manslaughter. The jury

was also instructed, as to crimes requiring specific intent, that it must consider the

effect of defendant’s voluntary intoxication, if any, when determining whether he

formed such intent. Finally, the jury heard it could convict defendant of voluntary

manslaughter if he killed in the honest, though unreasonable, belief in the need for


Defendant now urges that the court erred by failing to instruct, sua sponte,

on the complete defense of unconsciousness. He asserts that the error violated his

Fifth and Fourteenth Amendment rights to have the jury consider every material

fact presented by the evidence.

As the basis of his claim, defendant cites the California rule that, as a

corollary of its duty to instruct on all principles closely and openly connected with

the facts of the case, and which are necessary for the jury’s understanding of the

case (People v. Flannel (1979) 25 Cal.3d 668, 681; People v. St. Martin (1970)

1 Cal.3d 524, 531), the court must instruct on an affirmative defense, specifically

including unconsciousness, even in the absence of a request, “if it appears the

defendant is relying on such a defense, or if there is substantial evidence

supportive of such a defense and the defense is not inconsistent with the

defendant’s theory of the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 716.)

One cannot be guilty of a crime if he or she “committed the act charged

without being conscious thereof.” (§ 26, par. Four.) On the other hand, voluntary

intoxication, even if it induced unconsciousness, is not a defense to crime as such,


The court refused an instruction, proffered by defendant, that made clear

such an unreasonable belief could stem from defendant’s “mental illness,
voluntary intoxication, or both.” However, the instruction actually given did not
preclude the jury from so concluding.


though it may be relevant to whether the defendant formed a specific intent

necessary for its commission. (§ 22; see, e.g., People v. Kelly (1973) 10 Cal.3d

565, 572-573 (Kelly); People v. Conley (1966) 64 Cal.2d 310, 323.) Voluntary

intoxication can prevent formation of any specific intent requisite to the offense at

issue, but it can never excuse homicide. Hence, at the time defendant committed

his crimes, where voluntary intoxication rendered the defendant unconscious,

“ ‘criminal negligence [was] deemed to exist irrespective of unconsciousness,’ ”

and the offense was involuntary manslaughter. (People v. Tidwell (1970) 3 Cal.3d

82, 86.)40 As noted above, the trial court instructed in accordance with these


However, defendant urges there was substantial evidence, i.e., evidence

from which a rational jury could conclude, that he killed the Harbitzes while

hallucinating, and thus unconscious, for reasons not related to the immediate

effects of voluntary intoxication—including the lingering effects of chronic drug

abuse41 and past head injuries. He points to expert testimony that he was a


In 1995, section 22 was amended to provide prospectively that when the

charge is murder, “voluntary intoxication is admissible solely on the issue
. . .whether the defendant premeditated, deliberated, or harbored express malice
aforethought.” (Stats. 1995, ch. 793, § 1, p. 6149.) Hence, depending on the facts,
it now appears that defendant’s voluntary intoxication, even to the point of actual
unconsciousness, would not prevent his conviction of second degree murder on an
implied malice theory, or of voluntary manslaughter based on his or her
potentially lethal act, committed with “conscious disregard” for life, in response to
provocation or as the result of an honest, though unreasonable, belief in the need
for self-defense. (See People v. Lasko (2000) 23 Cal.4th 101, 107-113; People v.
(2000) 23 Cal.4th 82, 87-91; but cf. People v. Wright (2004) 35 Cal.4th


Defendant cites no California cases, and we have found none, that directly

decide whether unconsciousness based on the lingering effects of chronic drug
ingestion can be a complete defense to homicide, or any crime. In Kelly, supra,
10 Cal.3d 565, we concluded that an insanity defense could be based on such a
theory, but we appeared to distinguish the defense of unconsciousness. (Id. at


chronic drug abuser, that the substances he habitually ingested could produce

long-term mental effects, including delusions and hallucinations, and that he had

hallucinated on a previous occasion after suffering a motorcycle accident in which

he hit his head. Defendant also notes John Kennedy’s testimony that defendant

seemed sober both immediately before and immediately after the Harbitz

killings—thus suggesting, in defendant’s view, that, while he was in the Harbitz

home, he had a momentary “flashback” not related to the immediate intoxicating

effects of recently ingested drugs.

We need not address whether the trial court erred by failing, sua sponte, to

instruct on the complete defense of unconsciousness. We find that if error

occurred, it was harmless by any applicable standard.

In the first place, very strong evidence suggested that defendant killed the

Harbitzes, while conscious, in the course of a robbery. As Kennedy noted,

defendant seemed mentally normal at all times during the evening of December 7,

1982. In particular, his activity following the homicides appeared entirely rational

and goal-directed. When he saw a patrol car, he tried to deflect suspicion by

pretending to wipe the rear window of Kennedy’s vehicle. Defendant told

Kennedy to drive away without attracting attention, directed Kennedy, who was in

unfamiliar territory, back to the freeway, and began going through wallets he had

retrieved from the Harbitz residence.

There is no evidence defendant told either Kennedy or Cynthia Cornwell,

while the experience was still fresh, that he suffered hallucinations, delusions, or a

temporary blackout while inside the house. Instead, to explain his knee wound,

pp. 574-576.) Subsequently, the Legislature made clear, for purposes of crimes
thereafter committed, that the insanity defense may not be based upon “an
addiction to, or abuse of, intoxicating substances.” (§ 25.5, added by Stats. 1994,
1st Ext. Sess. 1993-1994, ch. 10, p. 8562.)


defendant lied to Kennedy that he had encountered “dope dealers that don’t have

no dope” and had to “hurt ‘em.” Defendant similarly lied to Cornwell that he had

gotten into a fight with a loan shark.

Defendant’s own experts were hardly enthusiastic in their support for his

“hallucination” theory. Indeed, they carefully refrained from expressing any

opinions that defendant actually hallucinated at the Harbitz residence. Dr. Klatte,

the principal defense expert, indicated considerable skepticism on the issue, for

multiple reasons. He acknowledged that defendant, who exhibited an antisocial

personality, had a “loud and clear” capacity for malingering when it suited his

purposes. Dr. Klatte’s suspicions were further aroused by defendant’s failure to

mention hallucinations to him until many years after their initial interviews.

Finally, Dr. Klatte conceded that much of defendant’s activity on the night of the

murders appeared goal-directed, i.e., to obtain money for drugs.

The premise that hallucinations may have stemmed from a prior head injury

was particularly flimsy. Dr. Klatte testified that, while defendant had hallucinated

shortly after his motorcycle accident, it was not known whether the hallucinations

were the result of the accident or of drug ingestion.

Finally, as noted above, the jury was instructed that “voluntary”

intoxication warranted a verdict of involuntary manslaughter, rather than murder.

While the instructions did not specify what the jury should do if it found he was

unconscious for reasons beyond his control, such as brain damage, it is

inconceivable the jury would believe that, in such a circumstance, it should (1)

convict him of murder, a crime greater than manslaughter, then (2) find true

special circumstances rendering him death-eligible, then (3) sentence him to death.

(See People v. Turner (1990) 50 Cal.3d 668, 692-693.) The only logical inference

is that the jury rejected defendant’s claim of unconsciousness entirely. Hence, an


instructional failure to explain the jury’s duty in the event it found involuntary

unconsciousness can have caused no prejudice.42

E. Failure to define unconsciousness.

Defendant contends that, when instructing on unconsciousness by voluntary

intoxication (CALJIC No. 8.47), the court erred by failing, sua sponte, also to

instruct on the legal definition of unconsciousness.43 Thus, defendant urges, the

jury was deprived of learning that, for legal purposes, unconsciousness extends to

those “who are not conscious of acting but who perform acts while asleep or while

suffering from a delirium of fever,” and (of particular importance, in defendant’s

view) “does not require that a person be incapable of movement.” (CALJIC No.

4.30, italics added; see People v. Saille (1991) 54 Cal.3d 1103, 1121.)44


In light of the verdicts actually rendered by this jury, we are not persuaded

to a contrary conclusion by our awareness that, in the first of the two guilt trials
leading to the original death judgment, the jury (1) was instructed it could acquit
defendant if he was unconscious for various involuntary reasons, including
“[involuntary] drug-related flashback,” (2) repeatedly asked if a “flashback” could
be “involuntary” if the original drug ingestion was voluntary, (3) was advised, in
essence, that a “flashback” caused by voluntary drug ingestion was itself
voluntary, and (4) two days later, after complaining through the foreperson of one
juror who “refuses to listen or discuss this case,” announced it could not reach a
verdict, thereby requiring a mistrial. Defendant’s insinuation that the “flashback”
issue must have caused the deadlock is pure speculation.


The People urge the claim was forfeited by failure to request a clarifying

instruction in the trial court. But this contention overlooks the exact nature of
defendant’s argument on appeal, which is that the court was required on its own
to define a term with “ ‘ “a technical [meaning] peculiar to the law.” ’ ”
(People v. Estrada (1995) 11 Cal.4th 568, 574.)


CALJIC No. 4.30, which applies to the complete defense of

unconsciousness not induced by voluntary intoxication, provides in pertinent part:
“A person who while unconscious commits what would otherwise be a criminal
act, is not guilty of a crime. [¶] This rule of law applies to persons who are not
conscious of acting but who perform acts while asleep or while suffering from a
delirium of fever, or because of an attack of [psychomotor] epilepsy, a blow on the
head, the involuntary taking of drugs or the involuntary consumption of


We are not persuaded. Even “[a]ssuming . . . that ‘unconscious’ has a

sufficiently legal, technical meaning to require a sua sponte instruction [citation],”

the instructions as given adequately conveyed the concepts defendant here

stresses. (Clark, supra, 5 Cal.4th 950, 1020.) Thus, CALJIC No. 8.47 itself

advised that one who, “while unconscious as a result of voluntary intoxication,

killed another human being without an intent to kill and without malice

aforethought” is guilty of involuntary manslaughter, and that one who becomes

voluntarily intoxicated “to the point of unconsciousness . . . assumes the risk that

while unconscious [he] [she] will commit acts dangerous to human life or safety.”

(Italics added.) No reasonable juror could fail to understand from this instruction

that one can perform acts while unconscious. (Clark, supra, at p. 1020; see also

People v. Hughes (2002) 27 Cal.4th 287, 343-344 (Hughes).)45

Nor, in the context of this case, was it necessary to advise the jury specially

that one could be unconscious while acting in a “delirium.” That defendant killed

while hallucinating he was in the movie Halloween II was the essence of his

defense. Under these circumstances, jurors receiving an instruction on

unconsciousness would necessarily understand that it related to defendant’s

hallucination claim. No rational jury, having heard the trial evidence and an

instruction permitting it to find that defendant killed while unconscious, would

intoxicating liquor, or any similar cause. [¶] Unconsciousness does not require
that a person be incapable of movement.”


Defendant stresses that in Clark, where we reached a similar conclusion,

the jury received both CALJIC No. 8.47 and CALJIC No. 4.31, the “presumption
of unconsciousness” instruction, which advises that a reasonable doubt the
defendant was conscious requires a finding of unconsciousness even if the
defendant “acted as if he were conscious.” As defendant notes, the instant jury did
not receive CALJIC No. 4.31 or an equivalent instruction. But as we made clear
in Clark, “[b]oth of these instructions unmistakably convey to a reasonable juror
the information that defendant claims was missing from the instructions.” (Clark,
supra, 5 Cal.4th 950, 1020, italics added.)


require further instructions to realize that it could accept defendant’s hallucination

claim as one of unconsciousness. No instructional error occurred.46

F. Instruction on involuntary manslaughter as general intent crime.

As noted above, the jury received a version of CALJIC No. 8.47, advising

that if defendant, while unconscious as the result of voluntary intoxication, killed

without intent to kill and malice, the crime is involuntary manslaughter, in that,

when one voluntarily becomes intoxicated to the point of unconsciousness, he

assumes the risk he will commit acts inherently dangerous to human life or safety,

and the law thus implies criminal negligence. The jury was further instructed,

under CALJIC No. 8.45, on a “misdemeanor manslaughter” theory of involuntary

manslaughter, with three possible underlying misdemeanors—assault, assault with

a deadly weapon or by means of force likely to produce great bodily injury, and

battery with serious bodily injury.

Finally, upon prompting by the prosecutor, and without objection by the

defense, the jury was instructed, under CALJIC No. 3.30, that involuntary

manslaughter requires a union or joint operation of act or conduct and “general

criminal intent,” such that “[w]hen a person intentionally does that which the law

declares to be a crime, he is acting with general criminal intent, even though he


Defendant urges the prosecutor exploited the instructional “omission” in his

remarks to the jury by saying, “I can just see an unconscious man opening up his
sheath, pulling out a knife, opening up the knife and stabbing. I can just see an
unconscious man doing that, especially with the facts we have here.” (Italics
added.) In his responsive argument, defense counsel urged that opening and
closing a knife is not a complex act, and that even sleepwalkers can perform
motions. The prosecutor did not claim the law precluded a finding of
unconsciousness. His fleeting suggestion, rebutted by defense counsel, that
defendant’s claim of unconsciousness was not convincing does not undermine the
conclusion that the jury was not misled about what evidence permitted it to find


may not know that his act or conduct is unlawful.” (Italics added.)47 In an oral

extrapolation, the court explained that involuntary manslaughter “is no specific

intent or mental state. In other words, . . . analogous to drunk driving[,] [if] you

do the act, it’s presumed that the particular general intent is there when you do the

particular crime.” (Italics added.)

Defendant now urges the trial court erred, and thereby violated his rights to

due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments, by

instructing on involuntary manslaughter as a general intent crime where the theory

of involuntary manslaughter was unconsciousness by voluntary intoxication. On

the instant facts, he insists, this improper combination of instructions may have

misled the jurors to conclude they could not convict him of involuntary

manslaughter even if they believed he killed while unconscious due to voluntary

intoxication. Thus, he claims, they were left with an unwarranted all-or-nothing

choice between a murder conviction and complete acquittal.

In this regard, defendant reasons as follows: Involuntary manslaughter

while voluntarily unconscious is necessarily based on the assumption that the

defendant killed without any awareness of his or her lethal act, and thus without

intent to commit it. In such cases, the mental element is criminal negligence, not

“intentionality.” However, the instruction that involuntary manslaughter requires

general criminal intent contradicted this premise by indicating that one cannot be

guilty of involuntary manslaughter unless he or she did intend the act which

produced the victims’ death. Taken literally, the general intent instruction advised

that if defendant killed the Harbitzes, but could not intend the lethal acts because


The clerk’s transcript indicates that the defense joined in requesting the

instruction. The record does not make clear whether this decision was a
“conscious and deliberate” tactical choice, thus forfeiting, under the doctrine of
“invited error,” an appellate claim that the instruction was erroneous or
misleading. (See, e.g., Weaver, supra, 26 Cal.4th 876, 970.)


he was unconscious due to voluntary intoxication, he was not guilty of involuntary

manslaughter. This left jurors only a choice between convicting him of murder or

acquitting him.

We are not persuaded. At the outset, we find no reasonable likelihood the

instructions, fairly read, confused or misled the jury about the connection between

unconsciousness due to voluntary intoxication and the appropriate homicide

verdict. (See, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 421 (Ochoa);

People v. Clair (1992) 2 Cal.4th 629, 663 (Clair); cf. Estelle v. McGuire (1991)
502 U.S. 62, 72.) After all, the jurors had before them an instruction expressly

stating that if one kills unintentionally while unconscious as a result of voluntary

intoxication, “the crime is involuntary manslaughter.” They had also been

instructed on the distinct theory of misdemeanor manslaughter, which was not

dependent on unconsciousness. Under these circumstances, there seems little

chance the jury would conclude that the instruction defining involuntary

manslaughter as a general intent crime negated the instruction defining an

unintentional homicide while unconscious from voluntary intoxication as

involuntary manslaughter, and thus precluded such a conviction based on

voluntarily induced unconsciousness.

Any such risk was further diminished by the trial court’s oral modification

of the instruction defining involuntary manslaughter as a general intent crime.

Though the court gave the settled explanation of general intent as involving an

intent to do the act made criminal, the court further indicated that such intent was

presumed insofar as the defendant simply did the criminal act. As pertinent here,

this amplification reconciled the “unconsciousness” and “general intent”

instructions, making clear that one who was unconscious due to voluntary

intoxication satisfied any general intent element of involuntary manslaughter by

simply engaging in the conduct, while in that state, that caused the victims’ deaths.


Even if error occurred, we find no prejudice by any applicable standard.

The jury was provided with multiple opportunities to absolve defendant of crimes

involving specific intent, such as robbery, and of murder in favor of lesser

homicide offenses, on the basis of his impaired mental state produced by voluntary

intoxication, or for other reasons. The jury rejected all such available lesser

homicide verdicts, including both involuntary and voluntary manslaughter, found

defendant guilty of robbery, and convicted him of two counts of first degree


Moreover, as we have already observed, it is illogical to assume a jury,

instructed that one who kills while “voluntarily” intoxicated is guilty only of

involuntary manslaughter, would find such intoxication, and yet convict the

defendant of the greater crime of murder, add special circumstances, and sentence

him to death. The only rational inference is that the jury simply discredited

defendant’s claim he was unconscious when he killed the Harbitzes.

Under these circumstances, we are persuaded that no prejudice arose from

the general intent instruction defendant challenges. No basis for reversal appears.

G. Cumulative guilt phase error.

As noted, we have identified no clear errors affecting the guilt trial.

Moreover, we have concluded that if any such errors did occur, they were

undoubtedly harmless. We therefore reject defendant’s claims of cumulative



A. Evidence of Compton murder.

As aggravating evidence, at the penalty phase, of other violent criminal

activity by the defendant (§ 190.3, factor (b)), the prosecution introduced evidence

that 75-year-old Houston Compton was brutally stabbed to death in Fullerton on


the evening of August 22, 1980. Compton’s body, which had sustained numerous

knife wounds, was found on the Fullerton College campus. His abandoned

vehicle, containing substantial blood residue, was later located in Santa Monica.

To demonstrate that defendant was Compton’s killer, the prosecution

presented testimony of William Harbitz that on an August evening in 1980, he saw

defendant wearing a bloody T-shirt; defendant, who had been drinking, said he

had been in a knife fight. The prosecution also presented the testimony of Linda

Weissinger, who, then 16 years old, had worked in August 1980 at a McDonald’s

restaurant on Leffingwell Road in Whittier. Weissinger indicated that, in a photo

lineup conducted in May 1983, she positively identified defendant as the man

wearing a bloodstained T-shirt who came to the drive-through window of the

Whittier McDonald’s around 10:15 p.m. on August 22, 1980, driving an old white

car, and bought two hamburgers. The prosecution showed that a receipt recovered

from Compton’s abandoned vehicle (a white Ford Fairlane from the early 1960’s)

was for two hamburgers purchased at the same Whittier McDonald’s at 10:12 p.m.

on August 22, 1980.

Defendant makes several related contentions concerning the admissibility,

and sufficiency, of the Compton murder evidence. We find no basis to disturb the

penalty judgment.

Defendant first urges at considerable length that the trial court wrongly

denied him a so-called Phillips hearing (see People v. Phillips (1985) 41 Cal.3d 29

(Phillips)), with presentation of live testimony by the parties, to determine, in

advance of the penalty trial, whether evidence he committed the Compton murder

was legally sufficient to present to the penalty jury.48 In particular, defendant


In Phillips, we admonished that “in many cases it may be advisable for the

trial court to conduct a preliminary inquiry before the penalty phase to determine
whether there is substantial evidence to prove each element” of other violent


asserts, the court should have determined whether, because of improper pretrial

lineup procedures, his due process rights would be violated by admission of

Weissinger’s crucial eyewitness identification.

Defendant further contends that Weissinger’s testimony was

constitutionally tainted by the pretrial lineup procedures, and should have been

excluded from evidence. Moreover, he insists that, with or without her

identification, the evidence he murdered Compton was legally insufficient.

Once before the beginning of jury selection, and again prior to the penalty

phase, the trial court entertained in limine defense motions to withhold all

evidence of the Compton murder from the penalty jury. Each time, the defense

sought an evidentiary hearing as to whether Weissinger’s anticipated identification

testimony was tainted by improper pretrial lineup procedures, and whether the

prosecution’s proof that defendant committed this crime was sufficient to go to the

jury.49 On both occasions, the court received the prosecution’s offers of proof and

heard extensive argument. Without taking live evidence, it then ruled that the

crimes the prosecution intends to introduce in aggravation under section 190.3,
factor (b). (Phillips, supra, 41 Cal.3d 29, 72, fn. 25.)


Both motions were made in writing and included points and authorities.

The second motion, filed between the guilt and penalty trials, incorporated factual
assertions made in the first, and urged that admission of the Compton murder
evidence would violate Evidence Code section 352, as well as defendant’s rights
to due process, and a fair and reliable trial, under both the state and federal
Constitutions. In his argument on the motion, counsel urged that upon a defense
objection to the “relevance” of the Compton murder evidence (i.e., that there was
insufficient competent evidence of defendant’s involvement), the prosecution was
obliged, under Evidence Code section 403, to prove, in an evidentiary hearing out
of the jury’s presence, the “preliminary fact” of the relevance of this evidence.
(See also Evid. Code, § 402.)


Compton murder evidence, including the testimony of Weissinger, could be


As noted, defendant insists these procedures were inadequate to resolve his

objections to the Compton murder evidence. However, we need not determine

whether the trial court should have given greater attention, in limine, to the issues

raised by defendant,51 including whether Weissinger’s identification was tainted

by improper pretrial lineup procedures (see, e.g., People v. Citrino (1970)

11 Cal.App.3d 778, 783 [where defendant objects to in-court identification, court

must determine, as “preliminary fact,” whether prosecution has carried burden of

showing pretrial identification procedures were not unduly suggestive]). That is

because we independently conclude in any event that (1) Weissinger’s

identification testimony at trial was not excludable as the tainted product of flawed

lineups, and (2) the evidence that defendant murdered Compton was legally

sufficient for consideration by the penalty jury. We address those issues in turn.

1. Pretrial lineups.

Given the August 22, 1980, receipt linking Compton’s murderer to the

McDonald’s restaurant on Leffingwell Road in Whittier, there is little doubt that

Weissinger, who was working at the McDonald’s that night, observed the killer.


When it denied the second motion, just prior to the penalty phase, the court

did indicate that after the Compton murder evidence was presented to the jury, the
court would entertain, if presented, a motion under section 1118 for relief akin to
acquittal. No such motion was made.


We note, of course, that Phillips, supra, 41 Cal.3d 29, did not require trial

courts to conduct the hearings described in our opinion. (E.g., Clair, supra,
2 Cal.4th 629, 677-678.) Nor did we suggest that such hearings, if conducted,
must include live testimony. Moreover, a trial court’s decision to admit “other
crimes” evidence at the penalty phase is reviewed for abuse of discretion, and no
abuse of discretion will be found where, in fact, the evidence in question was
legally sufficient. (See id. at pp. 676-677.)


The only issues concern Weissinger’s identification of defendant as the man she


As recounted above, Weissinger picked other men from live lineups,

conducted in November 1980 and July 1981,52 before she picked defendant from a

photo lineup in May 1983. Subsequently, in October 1983, Weissinger tentatively

identified defendant in a live lineup. The parties agree that the October 1983

lineup was conducted in the unwaived absence of defendant’s counsel, and the

penalty jury heard no reference to it. On two later occasions, in 1985 and 1991,

Weissinger was shown the same photo array from which she had identified

defendant in May 1983.

At trial, Weissinger testified that, although she took her time to decide, she

ultimately was certain, when she picked a photo from the May 1983 array, that the

picture she selected showed the man she saw at the McDonald’s restaurant on the

night of August 22, 1980. Weissinger confirmed that she so advised Detective

Lewis, who was supervising the May 1983 photo lineup. The defense stipulated

that the photo in question was defendant’s. Neither the prosecutor nor defense

counsel inquired specifically about any identification Weissinger made after May

1983. Neither counsel sought to confirm whether, at the time of the 1992 trial,

Weissinger was still sure she had picked the right man in May 1983. Moreover,

Weissinger was not asked to identify defendant in person as he sat before her in

the courtroom, and she did not do so.53


Apparently these lineups did not include defendant.


With respect to the May 1983 photo lineup, the following exchange

occurred on direct examination: “Q Showing you what I’ve marked [exhibit] 65,
were you shown this lineup? [¶] A Yes, I was. [¶] Q Did you pick out a –
when were you shown this lineup, approximately? [¶] A I believe it was in
1983 or early ’84 when I was working in Arcadia. [¶] Q Was that Detective
Lewis? [¶] A Yes, it was. [¶] Q Did you pick somebody out of this lineup?
[¶] A Yes, I did. [¶] Q Were you sure -- [¶] A The man who drove the car


Defendant urges that Weissinger’s courtroom identification testimony was

“tainted” by flaws in the lineup procedures. These defects, defendant insists,

include the illegal live lineup of October 1983, from which defendant’s counsel

was absent (see United States v. Wade (1967) 388 U.S. 218 (Wade)), and the

unnecessary, unduly suggestive reshowing of the May 1983 photo array on two

later occasions, in 1985 and 1991 (see Manson v. Brathwaite (1977) 432 U.S. 98;

Neil v. Biggers (1972) 409 U.S. 188; People v. Gordon (1990) 50 Cal.3d 1223,

1242). Defendant argues that due process thus required exclusion of Weissinger’s

testimony because, under the multipronged “totality of circumstances” test

established by the United States Supreme Court, the testimony did not possess

sufficient indicia of reliability to overcome the corrupting effect of the improper

lineups. (Manson v. Brathwaite, supra, at pp.110-114; Neil v. Biggers, supra, at

pp. 199-200.)

However, no “taint” arising from improper lineups appears in Weissinger’s

carefully circumscribed testimony, which was confined to her May 1983 photo

identification. Defendant does not suggest that, prior to May 1983, any efforts by

the police to obtain an identification from Weissinger were unduly suggestive in a

way that might cause her to misidentify defendant as the McDonald’s customer

she saw. Indeed, so far as appears, neither defendant’s photo, nor his person,

that night is in this lineup. [¶] Q Which one is he? [¶] A This one. [¶]
Q Pointing to number 4 . . . . [¶] Q Why don’t you put your initials right
under that picture that you just identified. You did this some time ago as far as
identifying a photograph?
[¶] A Yes.” On cross-examination, defense counsel
probed the degree of certainty Weissinger felt at the time of her May 1983
. Counsel also elicited that Weissinger was shown the same photo
array again in 1985 and 1991. However, counsel did not ask whether Weissinger
reidentified defendant at those times, or whether she was still sure the photo she
identified in May 1983 showed the man she saw at the McDonald’s in August


played any part in those efforts. Defendant criticizes the May 1983 photo lineup

on grounds that Weissinger was shown pictures in a group, rather than

sequentially. However, he cites no case authority for the proposition that a group

photo array is, per se, unduly suggestive.

Defendant focuses on events that occurred after the May 1983 photo

identification. He insists that the improper October 1983 live lineup conducted in

counsel’s unwaived absence, and the subsequent reshowing of the May 1983

photo array to Weissinger in 1985 and 1991, may have locked her into her May

1983 identification, and may actually have created false memories, hardening her

sincere but mistaken belief in the accuracy of the identification she made at the

earlier time.

As noted, however, Weissinger did not testify to anything that could have

been affected by these subsequent events. She vouched only for the certainty of

her May 1983 identification at the time it was made. This was an issue upon

which both she and Detective Lewis could be effectively examined. Moreover,

the jury could fully assess whether Weissinger’s testimony, so limited and

scrutinized, constituted persuasive evidence that defendant was the man she

observed at McDonald’s on August 22, 1980. Under these circumstances, there

was no need for an independent assessment whether Weissinger’s testimony

should be excluded as unreliable. It was properly admitted.54


Weissinger’s identification testimony was not rendered inadmissible as a

result of the October 1983 live lineup conducted in counsel’s absence, because
that testimony rested on a basis independent of, and untainted by, the improper
lineup. (People v. Bustamante (1981) 30 Cal.3d 88, 102-103; see Wade, supra,
388 U.S. 218, 240-242.)


2. Sufficiency of Compton murder evidence

Defendant claims that the evidence he murdered Compton was legally

insufficient. The prosecution’s failure to sustain its burden of proof, defendant

insists, violated his due process and reliability interests under the Fifth, Eighth,

and Fourteenth Amendments. (See Jackson v. Virginia (1979) 443 U.S. 307.)

On appeal, the test of legal sufficiency is whether there is substantial

evidence, i.e., evidence from which a reasonable trier of fact could conclude that

the prosecution sustained its burden of proof beyond a reasonable doubt.

(People v. Carter (2005) 36 Cal.4th 1114, 1156; Ochoa, supra, 19 Cal.4th 353,

413-414; People v. Johnson (1980) 26 Cal.3d 557, 576.) Evidence meeting this

standard satisfies constitutional due process and reliability concerns. (Carter,

supra at p. 1156; People v. Osband (1996) 13 Cal.4th 622, 690.)

While the appellate court must determine that the supporting evidence is

reasonable, inherently credible, and of solid value, the court must review the

evidence in the light most favorable to the prosecution, and must presume every

fact the jury could reasonably have deduced from the evidence. (People v. Carter,

supra, 36 Cal.4th 1215, 1257-1258; People v. Hillhouse (2002) 27 Cal.4th 469,

496 (Hillhouse); People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Issues of witness

credibility are for the jury. (E.g., Ochoa, supra, 19 Cal.4th 353, 414; People v.

Jones (1990) 51 Cal.3d 294, 314.)

Identification of the defendant by a single eyewitness may be sufficient to

prove the defendant’s identity as the perpetrator of a crime. (See People v.

Anderson (2001) 25 Cal.4th 543, 570-575 (Anderson).) Moreover, a testifying

witness’s out-of-court identification is probative for that purpose and can, by

itself, be sufficient evidence of the defendant’s guilt even if the witness does not

confirm it in court. (People v. Cuevas (1995) 12 Cal.4th 252, 263-275 (Cuevas),

overruling People v. Gould (1960) 54 Cal.2d 621, 631; see Evid. Code, § 1238.)


Indeed, “an out-of-court identification generally has greater probative value than

an in-court identification, even when the identifying witness does not confirm the

out-of-court identification: ‘[T]he [out-of-court] identification has greater

probative value than an identification made in the courtroom after the suggestions

of others and the circumstances of the trial may have intervened to create a fancied

recognition in the witness’ mind. [Citations.] . . . ’ [Citations].” (Cuevas, supra,

at p. 265.)

Here, though based primarily on Weissinger’s out-of-court identification,

the evidence that defendant murdered Compton was sufficient. Weissinger readily

testified that, after careful consideration, she made a positive identification of

defendant from a photo array as the McDonald’s customer she saw on the night of

the Compton murder. While Weissinger did not independently identify defendant

in the courtroom, or confirm that she remained certain of her photo identification,

she did not disavow it (see Cuevas, supra, 12 Cal.4th 252, 267-268), and she

explained at length why she felt sure of her choice at the time she made it. There

was nothing inherently improbable about the evidence she offered. (See, e.g.,

People v. Lang (1974) 11 Cal.3d 134, 139.)

Defendant’s counsel had a full opportunity to cross-examine Weissinger,

not only about the actual degree of certainty of her photo selection, but about all

aspects of the identification process, including the conditions under which she had

observed the McDonald’s customer, and the occasions on which, as Weissinger

candidly admitted, she had identified other men. Defendant also presented expert

testimony on factors affecting the accuracy of eyewitness identifications. Under

these circumstances, the jury was able to evaluate the credibility of Weissinger’s

identification, and the weight her testimony deserved was for the jury to resolve.

Moreover, William Harbitz provided some independent evidence of defendant’s

identity as Compton’s killer by describing the incident, on an August 1980


evening, when defendant, wearing a bloodstained T-shirt, approached Harbitz and

said he had been in a knife fight.

In sum, there was substantial evidence from which a reasonable jury could

conclude, beyond a reasonable doubt, that defendant was Compton’s murderer.

Accordingly, the jury was properly allowed to consider, in aggravation of penalty,

whether defendant committed this crime.

B. Defendant’s statements to defense mental health experts as “fruit of
the poisonous tree

In an argument similar to one made at the guilt phase, defendant urges that

his penalty trial expert witness, Sally Forbes, was improperly impeached with the

reports of Dr. Loomis and Dr. Kaufman, mental health professionals consulted by

the defense prior to the original trial.

On cross-examination of Forbes, the prosecutor inquired if Forbes had

considered whether defendant, in describing his childhood traumas, might be

malingering as the result of an antisocial personality. In this regard, the prosecutor

asked whether Forbes had read the reports of Dr. Loomis and Dr. Kaufman.

Forbes responded that she had not done so recently, and if she read them earlier,

she could not remember what they said. The prosecutor offered to refresh her

recollection with her testimony from the prior trial.

At a sidebar conference, defense counsel objected, among other things, that

the reports of Dr. Loomis and Dr. Kaufman would not be available but for the

erroneous failure to suppress defendant’s confession in the prior trial. The trial

court ruled that Forbes could be confronted with reports she had considered.

In response to the prosecutor’s questions, Forbes agreed Dr. Kaufman had

diagnosed defendant with an antisocial personality. During additional cross-

examination on the issue of malingering, Forbes acknowledged this is always a

concern with criminal defendants, but indicated the specificity of detail in


defendant’s claims of childhood sexual abuse indicated he was telling the truth.

The prosecutor then inquired whether, in discussing the Harbitz killings with

Forbes, defendant claimed amnesia and hallucinations. Forbes answered in the

affirmative, noting that, while defendant sometimes said “he must have done it

because he had the knife,” at other times he claimed he absolutely could not

remember, and he never flatly admitted “stabb[ing] those people.”

At this point, the prosecutor asked whether Forbes “remember[ed] reading

Dr. Kaufman’s report where he felt that the hallucination was a likely fabrication.”

Forbes answered “[y]es.” The prosecutor then inquired whether Forbes

remembered reading Dr. Loomis’s report, indicating that defendant had also

claimed amnesia to Dr. Loomis. Again, Forbes said she had. The examination

then moved on to other subjects.

Defendant insists that, because the defense decision to consult Dr. Loomis

and Dr. Kaufman was a direct consequence of the original trial court’s erroneous

refusal to suppress his illegally obtained confession, their reports were “fruit of the

poisonous tree” and could not properly be used for impeachment of Forbes.

(Citing James, supra, 493 U.S. 307.) Their improper admission for that purpose,

he posits, denied him his Eighth Amendment right to a reliable penalty judgment.

We reject the contention for reasons previously stated. Under general

principles of evidence, Forbes could be impeached with reports of other experts

she had considered in reaching her own conclusions. Even if the “impeaching”

experts in this case were consulted solely because the original trial court refused to

suppress defendant’s confession—a dubious premise—their reports, voluntarily

obtained by the defense, could be used to confront an expert witness whom the

defense chose to present in a subsequent trial from which the illegal confession

was excluded. In such circumstances, the impeaching evidence was sufficiently

attenuated to dissipate any “taint” arising from the illegal procurement of


defendant’s confession, and the deterrent purposes of the exclusionary rule were

outweighed by the interest in true and accurate evidence. (See discussion, ante, at

pp. 57-66.)

In any event, we discern no prejudice by any applicable standard. The

prosecutor’s fleeting allusions to the reports of Dr. Loomis and Dr. Kaufman

during the cross-examination of Forbes simply touched on issues of defendant’s

possible malingering, and his antisocial personality, that had been amply explored

and acknowledged, under proper circumstances, by defense experts at both the

guilt and penalty trials. Beyond reasonable doubt, these brief references cannot

have affected the penalty verdict.

C. Constitutionality of death penalty law.

Defendant raises numerous challenges to the California death penalty

scheme, in general and as applied to his case. Except as noted, we have rejected

similar or identical claims many times in the past, and defendant establishes no

ground for reconsidering our prior conclusions. We note below our pertinent

rulings on these issues, as follows:

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, including

unintentional felony murder. (People v. Stitely (2005) 35 Cal.4th 514, 573 (Stitely);

Anderson, supra, 25 Cal.4th 543, 601; People v. Crittenden (1994) 9 Cal.4th 83,

154-155.) Nor are the special circumstances overinclusive in number or scope.

(Stitely, supra, at p. 573; People v. Ray (1996) 13 Cal.4th 313, 356.)

The death penalty law does not fail to genuinely narrow the death-eligible

class, or result in arbitrary and capricious penalty decisions, insofar as it grants

prosecutors discretion to choose, from among cases meeting the statutory standards,


those in which the death penalty will actually be sought. (People v. Nakahara (2003)

30 Cal.4th 705, 722; Snow, supra, 30 Cal.4th 43, 126; Anderson, supra, 25 Cal.4th

543, 601-602; People v. Keenan (1988) 46 Cal.3d 478, 505-506.)

The multiple-murder special circumstance (§ 190.2, subd. (a)(3)) is not

constitutionally overbroad insofar as it encompasses a wide range of culpable

conduct, theoretically including two accidental felony murders. Categorizing

those who commit two or more murders subject to a single prosecution as

especially deserving of the death penalty is not arbitrary or irrational, and it

adequately narrows the pool of death-eligible offenders. (People v. Boyette (2002)

29 Cal.4th 381, 440; People v. Box (2000) 23 Cal.4th 1153, 1217.)

With respect to statutory aggravating and mitigating circumstances set forth

in section 190.3 of the death penalty law, factor (a) (“[t]he circumstances of the

[capital] crime . . .and the existence of any special circumstances”) is not

impermissibly vague or imprecise. (Tuilaepa v. California (1994) 512 U.S. 967,

975-980; Stitely, supra, 35 Cal.4th 514, 574.) Nor is factor (b) (defendant’s other

violent criminal activity) unconstitutional insofar as it permits consideration of

unadjudicated crimes. (People v. Gray (2005) 37 Cal.4th 168, 236 (Gray);

People v. Morrison (2004) 34 Cal.4th 698, 729.)

Because of the “catchall” provision of section 190.3, factor (k) (jury may

consider in mitigation “[a]ny . . . circumstance which extenuates the gravity of the

crime, even [if] . . .not a legal excuse for the crime”), factors (d) (whether

defendant committed offense while under “extreme” mental or emotional

disturbance) and (g) (whether defendant acted under “extreme” duress or

“substantial” domination) do not unconstitutionally inhibit consideration of

mitigating evidence by implying that unless the conditions described are

“extreme” or “substantial,” the factors are not mitigating, or are aggravating.

(People v. Panah (2005) 35 Cal.4th 395, 500 (Panah); People v. Prieto (2003)


30 Cal.4th 226, 276 (Prieto); People v. Barnett (1998) 17 Cal.4th 1044, 1178-


For similar reasons, factors (d) (whether “the offense was committed”

under the influence of extreme mental or emotional disturbance) and (h) (whether,

“at the time of the offense,” defendant’s ability to appreciate criminality was

impaired by mental disease or defect, or intoxication) of section 190.3 do not

inhibit consideration of mitigating evidence by implying that the conditions

described must relate directly to defendant’s culpability for the capital crime.

(People v. Maury (2003) 30 Cal.4th 342, 439 (Maury); Hughes, supra, 27 Cal.4th

287, 405, fn. 33.)

The death penalty statute is not constitutionally deficient for failing to

require “intercase” proportionality review, even though such review is provided to

noncapital sentencees under the Determinate Sentencing Act. (Pulley v. Harris

(1984) 465 U.S. 37, 50; People v. Ramos (1997) 15 Cal.4th 1133, 1182; People v.

Cox (1991) 53 Cal.3d 618, 690-691; Allen, supra, 42 Cal.3d 1222, 1285-1288.)

Execution by lethal injection is not, per se, cruel and unusual punishment.

(Gray, supra, 37 Cal.4th 168, 237; People v. Carter, supra, 36 Cal.4th 1114, 1213;

Hughes, supra, 27 Cal.4th 287, 406; People v. Samayoa (1997) 15 Cal.4th 795,

864.) Defendant’s assertion that execution by lethal gas is cruel and unusual is not

cognizable, given that current law provides for lethal injection unless the prisoner

chooses lethal gas. By affirmatively electing lethal gas, he would waive any claim

that this form of punishment violates the Eighth Amendment. (People v. Bradford

(1997) 14 Cal.4th 1005, 1058-1059.)

Defendant’s claim that the Department of Corrections (now part of the

Department of Corrections and Rehabilitation) (Department) has not adopted

required standards for the administration of lethal injection (§ 3604, subd. (a)) also

is not cognizable, because alleged imperfections in the method of execution do not


affect the validity of the death judgment itself. Defendant’s attack on illegalities

in the execution process that may or may not exist when his death sentence is

carried out are premature. (People v. Cornwell (2005) 37 Cal.4th 50, 105-106

(Cornwell); People v. Young (2005) 34 Cal.4th 1149, 1234 (Young); People v.

Holt (1997) 15 Cal.4th 619, 702 (Holt).)55

D. Death penalty instructional issues.

Defendant asserts that the penalty instructions given in his case were

constitutionally and statutorily deficient in multiple respects. Again, we have

frequently dismissed identical or similar arguments, and defendant fails to

persuade that any of these issues deserve renewed reconsideration. Following are

pertinent rulings on the arguments raised:

The trial court did not err in failing to instruct on “core adjudicative

principles,” including (1) the burden and standard of proof at the penalty phase;

(2) the necessity for proof, and jury findings, beyond reasonable doubt (a) of every

aggravating factor supporting a death verdict (aside from other crimes), (b) of

every fact underlying each aggravating factor, (c) that aggravation outweighs

mitigation, and (d) that death is the appropriate penalty; (3) the need for jury

unanimity on each aggravating factor; and (4) the presumption of life over death.

(Gray, supra, 37 Cal.4th 168, 236-237; Stitely, supra, 35 Cal.4th 514, 573; Panah,

supra, 35 Cal.4th 395, 499; People v. Smith (2003) 30 Cal.4th 581, 641-642;

Maury, supra, 30 Cal.4th 342, 440; People v. Welch (1999) 20 Cal.4th 701, 767-

768 (Welch).) Nor was it necessary to require a written statement of findings and

reasons for the jury’s penalty verdict. (People v. Monterroso (2004) 34 Cal.4th


We note that the validity of the lethal injection procedures used by the

Department is the subject of current litigation in the United States District Court
for the Northern District of California. (Morales v. Hickman et al. (N.D.Cal. No.
C 06-219 JF).)


743, 795; Jenkins, supra, 22 Cal.4th 900, 1053.) Recent United States Supreme

Court decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v.

Arizona (2002) 536 U.S. 584, have not altered our conclusions regarding

necessary findings, burden of proof, or jury unanimity. (Monterroso, supra, at p.

795; Prieto, supra, 30 Cal.4th 226, 275.)

The penalty instructions given in defendant’s case were not deficient insofar as

they failed (1) to clarify the phrase “whether or not” in various of the factors set forth

in section 190.3 by specifying which factors are aggravating and which are mitigating

(Gray, supra, 37 Cal.4th 168, 236; People v. Jones (2003) 30 Cal.4th 1084, 1123;

People v. Kraft (2000) 23 Cal.4th 978, 1078-1079), (2) to delete “inapplicable”

mitigating factors where, as here, the jury was told to consider only “applicable”

aggravating and mitigating circumstances (Gray, supra, at p. 236; Maury, supra,

30 Cal.4th 342, 439-440), or (3) to limit the aggravating circumstances to those

specifically enumerated in section 190.3 (People v. Taylor (2001) 26 Cal.4th 1155,

1180; People v. Earp (1999) 20 Cal.4th 826, 899).

The definition of mitigation included in CALJIC No. 8.88, as given here,56

did not fail to explain that concept adequately. (Welch, supra, 20 Cal.4th 701,

772-773.) We are not persuaded otherwise by defendant’s citation to certain

empirical research, not part of the current record and not subject to cross-

examination, suggesting that substantial numbers of persons, given the standard

instruction, misunderstand mitigation as limited to the circumstances of the capital

crime. (Ibid.)


Defendant’s jury was told, in the words of the 1989 revision to CALJIC

No. 8.88, that “[a] mitigating circumstance is any fact, condition or event which as
such, does not constitute a justification or excuse for the crime in question, but
may be considered as an extenuating circumstance in determining the
appropriateness of the death penalty.”


Furthermore, CALJIC No. 8.88, which permits a judgment of death only

upon the jury’s unanimous determination that aggravation is “so substantial” in

comparison with mitigation as to “warrant[ ] death instead of life without parole,”

is not deficient on grounds that it fails to say expressly a life sentence is required if

mitigation outweighs aggravation. (People v. Smith (2005) 35 Cal.4th 334, 370;

People v. Medina (1995) 11 Cal.4th 694, 781; People v. Duncan (1991) 53 Cal.3d

955, 978-979.) Nor does CALJIC No. 8.88 improperly imply that death is

required if aggravation outweighs mitigation. The instruction makes clear that

death is permitted only if aggravation is “so substantial” compared to mitigation

that death, rather than life without parole, is “warranted.” (People v. Smith, supra,

35 Cal.4th at p. 370; People v. Arias (1996) 13 Cal.4th 92, 171 (Arias).)

Having admonished the penalty jury to consider “any sympathetic or other

aspect of the defendant’s character or record that the defendant offers as a basis for

a sentence less than death, whether or not related to the offense for which he is on

trial,” and to “disregard any [conflicting] instruction [from] the guilt or innocence

phase of this trial,” the court was not required to instruct the jury further to

consider all sympathetic mitigating factors, mercy, and nonstatutory mitigating

factors, nor was it required to caution expressly that the “anti-sympathy”

instruction given only at the guilt phase (CALJIC No. 1.00) did not apply at the

penalty phase. (Panah, supra, 35 Cal.4th 395, 497; Lewis, supra, 26 Cal.4th 334,

393; People v. Bolin (1998) 18 Cal.4th 297, 343-344; People v. Adcox (1988)

47 Cal.3d 207, 265.)

Having told the penalty jury it must choose, under California’s capital

sentencing law, between death and “life without parole,” the court was not obliged

to instruct further on the “true meaning” of life without parole. Any instruction

that such a sentence guaranteed defendant’s incarceration until his death would be

inaccurate, considering the Governor’s commutation and pardon powers. (Arias,


supra, 13 Cal.4th 92, 172; People v. Gordon, supra, 50 Cal.3d 1223, 1277;

People v. Thompson (1988) 45 Cal.3d 86, 130.) On the other hand, the meaning of

“[l]ife without parole” is plain. (Arias, supra, at pp. 172-173, distinguishing

Simmons v. South Carolina (1994) 512 U.S. 154 [requiring explanation, under

particular circumstances, that “life imprisonment” as alternative to death penalty

meant defendant would be ineligible for parole].) We are not persuaded otherwise

by defendant’s citation to certain “contemporary research,” not part of the current

record or subject to cross-examination, suggesting many jurors do not understand

that life without parole actually means no possibility of parole.57

Though defendant was free to argue residual doubt about his degree of

culpability in the Harbitz homicides, the trial court had no obligation, let alone a

sua sponte obligation, to instruct the penalty jury specifically that it could consider

in mitigation any “lingering doubt” about defendant’s degree of guilt. The federal

Constitution does not require a “lingering doubt” instruction. (Franklin v.

Lynaugh (1988) 487 U.S. 164, 173-174.) Moreover, the concept is adequately

covered in the standard instruction, given here, that the jury could consider, in

mitigation, any extenuating circumstance of the crime, even if not a legal excuse

therefor, and any sympathetic or other aspect of defendant’s character or record he

offered as a basis for a sentence less than death, whether or not related to the

capital crime. (People v. Harris (2005) 37 Cal.4th 310, 359; People v.

Musselwhite (1998) 17 Cal.4th 1216, 1272; People v. Hines (1997) 15 Cal.4th

997, 1068 (Hines).)


In any event, although the court on one occasion referred simply to “life

without parole,” at two other points in the instructions it specified that the
penalties available were “death or confinement in [the] state prison for life without
possibility of parole
.” (Italics added.)


E. Death sentence as disproportionate to individual culpability.

Defendant insists his death sentence is disproportionate to his individual

culpability, and thus violates state and federal constitutional provisions against

cruel and/or unusual punishment. In assessing such a claim, we must examine the

circumstances of the crime, as well as the defendant’s personal characteristics.

(Panah, supra, 35 Cal.4th 395, 501.) If, given these factors, “the penalty imposed

is ‘grossly disproportionate to the defendant’s individual culpability’ [citation], so

that the punishment ‘ “ ‘shocks the conscience and offends fundamental notions of

human dignity’ ” ’ [citation], [we] must invalidate the sentence as

unconstitutional.” (People v. Lucero (2000) 23 Cal.4th 692, 739-740.)

Defendant, acting alone, robbed and brutally murdered an elderly couple

who had shown kindness to him. He was not a youth at the time of these offenses,

and he had previously committed at least one other serious felony, an armed

robbery. Defendant cites his difficult early childhood, leading to drug addiction,

and the possibility he killed in a “panic,” and in a misguided effort at self-defense,

induced by his intoxicated state. However, the jury, on substantial evidence,

essentially rejected this version of the homicides, and we may not substitute our

judgment for the factfinder’s. Moreover, though defendant’s earliest years may

have been deprived, he was adopted when still a young child by parents who

showered him with wholesome love, attention, and support. His personal

hardships pale in comparison to the gravity of his crimes. We cannot conclude

that the penalty imposed is disproportionate to his culpability.

Defendant further urges that we have, and should exercise, authority under

sections 1181, subdivision 7, and 1260 to reduce his death sentence to life

imprisonment without possibility of parole. But we have concluded we may not,

under these statutes, disturb the jury’s penalty determination absent prejudicial

error or legal insufficiency of evidence. (Hines, supra, 15 Cal.4th 997, 1080.)


F. Conflict of interest.

Defendant claims his “convictions, death sentence, and confinement violate the

state and federal [C]onstitutions in that he has been represented on appeal by counsel

burdened by an unconstitutional conflict of interest.” Defendant urges that an

inherent conflict arises where, as here, his appointed appellate counsel has also been

appointed to represent him in habeas corpus proceedings. But while habeas corpus

counsel might have a conflict when investigating issues of his or her own ineffective

appellate representation, no reason appears why counsel’s dual role would interfere

with his or her effective representation on appeal. Moreover, a claim that habeas

corpus counsel is burdened by an unconstitutional conflict of interest is not cognizable

on appeal; it lacks merit in any event because there is no constitutional right to the

effective assistance of counsel in state habeas corpus proceedings. (Young, supra,

34 Cal.4th 1149, 1232; People v. Kipp (2001) 26 Cal.4th 1100, 1139-1140; see

Coleman v. Thompson (1991) 501 U.S. 722, 756-757.)

G. Delayed execution.

Noting that he was first convicted and sentenced to die in 1984, defendant

urges that his long confinement on death row awaiting execution constitutes cruel

and unusual punishment. He observes that the delay stems from matters chargeable

solely to the state—in particular, the need for a retrial after his illegal confession

was erroneously admitted in the original trial, and the four and one-half-year wait

for appointment of counsel to represent him in the current appeal. We have

consistently rejected the contention that the delays inherent in the capital appeal

process render the death penalty, or the process leading to it, cruel and unusual.

(E.g., People v. Dunkle (2005) 36 Cal.4th 861, 942; Anderson, supra, 25 Cal.4th

543, 606; People v. Massie (1998) 19 Cal.4th 550, 574.) We do so again.


H. Cumulative penalty phase error.

Defendant urges that the cumulative prejudicial effect of errors at his penalty

trial requires reversal of the death judgment. The contention fails because we have

identified no error under state or federal law at the penalty phase of the trial.

I. International law.

Defendant claims that, because of the due process violations he suffered

throughout the guilt and sentencing phases of his capital trial, he was “denied his

right to a fair trial by an independent tribunal, and his right to the minimum

guarantees for the defense under customary international law as informed by the

Universal Declaration of Human Rights, the International Covenant on Civil and

Political Rights, and the American Declaration of the Rights and Duties of Man.”

We have consistently held that international law does not prohibit a death sentence

rendered in accordance with state and federal constitutional and statutory

requirements. (Panah, supra, 35 Cal.4th 395, 500; Hillhouse, supra, 27 Cal.4th

469, 511.) Applying those standards, we have found no errors under state or

federal law whose cumulative effect was prejudicial. Hence, defendant has no

basis for his claim of international law violations. (Cornwell, supra, 37 Cal.4th

50, 106; People v. Blair (2005) 36 Cal.4th 686, 755.)


The judgment is affirmed in its entirety.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Boyer

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: May 11, 2006

County: Orange
Judge: Donald A. McCartin


Attorneys for Appellant:

R. Clayton Seaman, Jr., under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Esteban Hernandez, Frederick B. Clark, Teresa Torreblanca, William M.
Wood, Adrianne S. Denault and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

R. Clayton Seaman, Jr.
P.O. Box 12008
Prescott, AZ 86304
(928) 776-9168

Lise S. Jacobson
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2293

Opinion Information
Date:Docket Number:
Thu, 05/11/2006S029476

1The People (Respondent)
Represented by Attorney General - San Diego Office
Lise Jacobson, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Boyer, Richard Delmer (Appellant)
San Quentin State Prison
Represented by R. Clayton Seaman
Attorney at Law
P.O. Box 12008
Prescott, AZ

May 11 2006Opinion: Affirmed

Oct 23 1992Judgment of death
Oct 28 1992Filed certified copy of Judgment of Death Rendered
Mar 4 1997Counsel appointment order filed
  Uponr request of appellant for appointment of counsel, R. Clayton Seaman, Jr., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
Mar 24 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 27 1997Extension of Time application Granted
  To Applt To 5-29-97 To request Corr. of Record.
Mar 31 1997Filed:
  "Amended request for Ext. of Time" (Showing Service on Orange Co. public Defender.)
Apr 3 1997Filed:
  Suppl Proof of Service of Eot Request.
May 14 1997Compensation awarded counsel
May 28 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 9 1997Extension of Time application Granted
  To Applt To 7-28-97 To request Corr. of Record.
Jul 25 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 28 1997Extension of Time application Granted
  To Applt To 8-27-97 To request Corr. of Record.
Aug 22 1997Received:
  Copy of Applt's request to correct, Augment, Examine Sealed Transcripts, Seal other Documents & Settle the Record (15 Pp.)
Sep 11 1997Compensation awarded counsel
Jan 30 1998Compensation awarded counsel
Mar 10 1998Motion filed
  By Applt for Modification & Reversal of Portions of Trial Court's Ruling on motion to Augment, correct & Settle the Record (12 Pp. Excluding Exhibits.)
Apr 6 1998Filed:
  By Respondent Opposition to motion for Modification and Reversal of Portions of Trial Court's Ruling on Applt's motion to Augment, Correct, and Settle the Record on Appeal (6 Pps)
Apr 14 1998Filed:
  Applt's reply to Opposition to motion for Modification Etc. (9 Pp.)
Apr 15 1998Filed:
  Applt's Suppl reply to Resp's Opposition to motion for Modification Etc. (5 Pp.)
Jun 30 1998Received:
  3 Vols. of C.T. from Superior Court (for Court's Review Related to Pending Motion).
Aug 19 1998Order filed:
  The request to seal fee requests and related affidavits is denied. The requests for correction of the reporter's transcripts are denied.
Aug 20 1998Note:
  Returned 3 Vols. of C.T. to Superior Court.
Jan 21 1999Record on appeal filed
  C-12 (3,954 Pp.) and R-14 (2,446 Pp.) (Includes Sealed Material). Clerk's Transcript includes 1,224 pages of Juror Questionnaires.
Jan 21 1999Appellant's opening brief letter sent, due:
Feb 19 1999Compensation awarded counsel
Feb 19 1999Filed:
  R.T. of 12-4-98 Hearing in Superior Court.
Feb 26 1999Application for Extension of Time filed
  To file Aob.
Mar 3 1999Extension of Time application Granted
  To 5-3-99 To file AOB
Apr 29 1999Application for Extension of Time filed
  To file Aob.
Apr 29 1999Extension of Time application Granted
  To 7-2-99 To file AOB
Jul 2 1999Application for Extension of Time filed
  To file Aob.
Jul 6 1999Extension of Time application Granted
  To 8-31-99 To file AOB
Aug 27 1999Application for Extension of Time filed
  To file Aob.
Aug 30 1999Extension of Time application Granted
  To 11/1/99 To file Aob.
Oct 26 1999Application for Extension of Time filed
  To file Aob.
Oct 27 1999Extension of Time application Granted
  To 12/31/99 To file Aob.
Dec 23 1999Application for Extension of Time filed
  To file Aob.
Jan 14 2000Extension of Time application Granted
  To 2/29/2000 To file Aob.
Feb 25 2000Application for Extension of Time filed
  To file Aob.
Mar 2 2000Extension of Time application Granted
  To 5/1/2000 To file Aob. no further Eot Are Contemplated.
Apr 27 2000Application for Extension of Time filed
  To file Aob.
May 2 2000Extension of Time application Granted
  To 6/30/2000 To file Aob. no further Eot will be Granted.
Jun 26 2000Motion filed
  Applt's motion to file an AOB in Excess of 280 pages.
Jul 3 2000Order filed:
  Applt's application for leave to file AOB in excess of 280 pages is granted.
Jul 3 2000Appellant's opening brief filed
  (486 pages)
Jul 10 2000Filed:
  Confidential declaration of atty R. Clayton Seaman, Jr.
Jul 14 2000Compensation awarded counsel
  Atty Seaman
Jul 26 2000Application for Extension of Time filed
  to file resp's brief.
Jul 31 2000Extension of Time application Granted
  to 10-2-2000 to file resp's brief.
Aug 30 2000Counsel's status report received (confidential)
Sep 29 2000Respondent's brief filed
  (107 pages)
Oct 17 2000Application for Extension of Time filed
  To file reply brief. (1st request)
Oct 24 2000Extension of Time application Granted
  To 12/19/2000 to file reply brief.
Oct 31 2000Counsel's status report received (confidential)
Dec 18 2000Application for Extension of Time filed
  To file reply brief. (2nd request)
Dec 20 2000Extension of Time application Granted
  To 2/20/2001 to file reply brief.
Jan 2 2001Counsel's status report received (confidential)
Feb 16 2001Application for Extension of Time filed
  To file reply brief. (3rd request)
Feb 21 2001Extension of Time application Granted
  To 4/11/2001 to file reply brief.
Feb 26 2001Counsel's status report received (confidential)
Apr 9 2001Counsel's status report received (confidential)
Apr 9 2001Application for Extension of Time filed
  To file Reply Brief. (4th request)
Apr 13 2001Extension of Time application Granted
  To 6/11/2001 to file Reply Brief. No further extensions of time are contemplated.
Jun 5 2001Counsel's status report received (confidential)
Jun 5 2001Application for Extension of Time filed
  To file reply brief. (5th request)
Jun 11 2001Extension of Time application Granted
  To 8/10/2001 to file reply. No further extensions of time will be granted.
Aug 10 2001Counsel's status report received (confidential)
Aug 13 2001Filed:
  Confidential declaration from atty. R. Clayton Seaman, Jr.
Aug 13 2001Application to file over-length brief filed
  (218 Pp. reply brief submitted under separate cover and mailed on 8/8/2001)
Aug 14 2001Filed:
  Application of applt. to file reply brief in excess of page limit is granted.
Aug 14 2001Appellant's Reply Brief filed. (218 Pp.)
Aug 15 2001Filed:
  Due to clerical error, the order filed on 8/14/2001 is amended to read as follows: The application of appellant for leave to file the appellant's reply brief in excess of the page limit is granted.
Aug 29 2001Compensation awarded counsel
  Atty Seaman
Oct 16 2001Compensation awarded counsel
  Atty Seaman
Oct 19 2001Counsel's status report received (confidential)
Nov 7 2001Related habeas corpus petition filed (concurrent)
  No. S101970.
Feb 22 2002Compensation awarded counsel
  Atty Seaman
Nov 25 2002Filed:
  Appellant's motion to file supplemental brief. (14 pp. supplmental brief submitted under separate cover)
Nov 26 2002Order filed
  Appellant's motion to file supplemental brief is granted. Any supplemental respondent's brief is to be served and filed on or before 12/26/2002. No additional extension of time is contemplated.
Nov 26 2002Supplemental brief filed
  b appellant (14 pp.)
Dec 19 2002Supplemental brief filed
  by respondent (6 pp.)
Jan 16 2003Motion filed
  by appellant to file supplemental reply brief.
Jan 21 2003Change of Address filed for:
  Appellant's counsel R. Clayton Seaman, Jr.
Jan 27 2003Order filed
  Appellant's motion to file supplemental reply brief is granted.
Jan 27 2003Supplemental reply brief filed
  (27 pp.)
Mar 26 2003Filed letter from:
  Attorney R. Clayton Seaman, Jr., dated 3/22/2003, correcting his telephone number.
Aug 1 2005Motion filed (AA)
  Attorney Seaman's "Application to Suspend Counsel Appointment for One Year or Alternative Request for One Year Continuance on All Pending Matters in the Boyer Direct Appeal."
Aug 5 2005Filed:
  Addendum to application to suspend counsel appointment for one year.
Aug 5 2005Opposition filed
  by respondent to counsel's motion to suspend appointment for one year.
Aug 10 2005Motion denied
  The "Application to suspend counsel appointment for one year or alternative request for one year continuance on all pending matters," filed on August 1, 2005, is denied. Werdegar, J., was absent and did not participate.
Dec 7 2005Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the January 2006 calendar. 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 14 2005Supplemental briefing ordered
  The parties are directed to brief the following issue: s to appellant's claim that various items of evidence should have been suppressed as the "tainted fruit" of the illegal police conduct toward him described in People v. Boyer (1989) 48 Cal.3d 247: Separate and apart from whether any particular item of challenged evidence "inevitably" would have been obtained (Nix v. Williams (1984) 467 U.S. 431), does the current record permit a determination that such evidence otherwise was procured by means sufficiently attenuated from the primary illegality to dissipate the taint? (E.g., Brown v. Illinois (1975) 422 U.S. 590, 603-604; Wong Sun v. United States (1963) 371 U.S. 471, 477-478.) The parties may submit two rounds of simultaneous letter briefs addressing this issue. The first round may be filed on or before December 29, 2005. The second round may be filed within 15 days after the last brief in the first round is filed. The Attorney General, in his first letter brief, also is directed to address the merits of the arguments set out on pages 147 to 171 of the Appellant's Opening Brief. Appellant, in his second letter brief, may respond.
Dec 21 2005Note:
  counsel notified by telephone that case will be scheduled for oral argument on February 2006 calendar.
Dec 29 2005Received:
  Respondent's supplemental brief without, application to file over length brief. DAG Jacobson to submit application to file over length brief via overnight mail. (8662 word brief recieved)
Dec 29 2005Application to file over-length brief filed
  appellant's supplemental brief. (12664 word brief submitted under separate cover)
Dec 30 2005Order filed
  Appellant's motion for leave to file a supplemental brief in excess of 2800 words is granted.
Dec 30 2005Supplemental brief filed
  "Appellant's supplemental brief on the issue of attenuation" (12,664 words; 43 pp.)
Jan 4 2006Application to file over-length brief filed
  to file respondent's supplemental brief. (8662 word brief received under separate cover on 12/29/2005)
Jan 9 2006Order filed
  respondent's "Application for Permission to File an Oversized Supplemental Brief" is granted.
Jan 9 2006Supplemental brief filed
  respondent's supplemental brief. (8662 words; 29 pp.)
Jan 12 2006Application to file over-length brief filed
  by appellant to file supplemental reply brief in excess of 2800 words. (7076 word brief submitted under separate cover; 23 pp.)
Jan 13 2006Application to file over-length brief filed
  by respondent, "For Permission to File an Oversized Response to Appellant's Supplemental Brief." (5448 word; 19 pp. brief submitted under separate cover)
Jan 13 2006Order filed
  "Appellant Boyer's Motion to File a Supplemental Reply Brief in Excess of 2800 Words" is granted.
Jan 13 2006Supplemental brief filed
  "Appellant's Supplemental Reply Brief on the Issue of Attenuation." (7076 words; 23 pp.)
Jan 19 2006Case ordered on calendar
  February 14, 2006, 1:00 p.m., in Sacramento
Jan 23 2006Letter sent to:
  lead counsel, requesting written stipulation whether each party will or will not stipulate to Justice Chin's participation in the case even though he will not be present at oral argument. Stipulations due on or before February 1, 2006.
Jan 24 2006Order filed
  Appellant's application to file supplemental letter brief is granted. Any response is to be served and filed on or before February 3, 2006.
Jan 24 2006Letter brief filed
  appellant's "Supplemental Letter Brief to Correct Factual Error." (2 pp.)
Jan 27 2006Filed letter from:
  attorney R. Clayton Seamon, Jr., dated 1/27/2006, advising appellant will stipulate to Justice Chin's participation in the decison of this case even though he will not be present for oral argument.
Jan 27 2006Filed letter from:
  attorney Seaman, dated 1/24/2006, re focus issues for oral argument.
Jan 30 2006Order filed
  respondent's "Application for Permission to File an Oversized Response to Appellant's Supplemental Brief" is granted.
Jan 30 2006Supplemental brief filed
  "Response to Appellant's Supplemental Briefing on the Issue of Attenuation." (5448 words - 19 pp.)
Jan 30 2006Filed letter from:
  DAG Jacobson, dated 1/26/2006, re focus issues for oral argument.
Jan 30 2006Request for Extended Media coverage Filed
  By John Hancock of the California Channel.
Jan 31 2006Filed:
  Respondent's stipulation that Justice Chin may participate in the decision in case even though he will not be present at oral argument.
Feb 2 2006Letter brief filed
  respondent's "Response to Appellant's Supplemental Letter Brief." (2 pp.)
Feb 2 2006Received:
  letter from respondent, dated 2/1/2006, re new authority for oral arguement.
Feb 3 2006Request for Extended Media coverage Granted
  Subject to the conditions set forth in rule 980, California Rules of Court.
Feb 6 2006Argument rescheduled
  Argument moved to following day: Wednesday, February 15, 2006, 9:00 a.m.
Feb 10 2006Request for judicial notice granted
  Appellant's request for judicial notice of the record of the prior appeal in this matter (People v. Boyer, S004656), including all briefs, pleadings, and transcripts included therein, is granted. (Evid. Code, sections 452, subd. (d)(1), 459.)
Feb 15 2006Cause argued and submitted
Mar 1 2006Compensation awarded counsel
  Atty Seaman
Apr 12 2006Compensation awarded counsel
  atty Seaman, Jr.
May 11 2006Opinion filed: Judgment affirmed in full
  Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno & Corrigan, JJ.
May 26 2006Rehearing petition filed
  by appellant. (1569 pp. - 7 pp.)
May 26 2006Time extended to consider modification or rehearing
  to August 9, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 19 2006Rehearing denied
  Petition for rehearing DENIED.
Jul 19 2006Remittitur issued (AA)
Jul 25 2006Order filed (150 day statement)
Jul 25 2006Received:
  acknowledgment of receipt of remittitur.
Sep 5 2006Received:
  copy of appellant's petition for writ of certiorari. (18 pp. - excluding attached appendix)
Sep 12 2006Received:
  letter from U.S.S.C, dated September 5, 2006, advising petition for writ of certiorari filed on September 5, 2006 as No. 06-6261.
Nov 17 2006Received:
  letter from U.S.S.C., dated November 6, 2006, advising that cert. petition was denied that date.

Jul 3 2000Appellant's opening brief filed
Sep 29 2000Respondent's brief filed
Aug 14 2001Appellant's Reply Brief filed. (218 Pp.)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website