IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MICHAEL STEPHEN COMBS,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. BCR 2436
A jury convicted defendant Michael Stephen Combs of the first degree
murder (Pen. Code, § 187)1 of Janine Lee. The jury found true special
circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)) and robbery
murder (§ 190.2, subd. (a)(17)). It also found true an allegation that defendant
committed the murder while released from custody on his own recognizance in an
unrelated case (§ 12022.1). After a penalty trial, the jury returned a verdict of
death, and the trial court imposed that sentence. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment in its entirety.
All further statutory references are to the Penal Code unless otherwise
A. Guilt Phase
1. The Prosecution’s Case
On October 24, 1990, defendant asked the victim, Janine Lee, to drive him
and Cynthia Purcell to Calico Ghost Town in San Bernardino County.2 Before
giving them a ride, Janine came home to change her clothes and then left in her
car. Janine’s father, Richard Lee, never saw her again.
The next morning, Richard Lee received a telephone call from a store in
Lake Elsinore. Someone had tried to cash a check written on his and Janine’s
joint checking account. That evening, the police found Janine’s body in a remote
canyon area near Calico Ghost Town.
A week after Janine’s death, the police arrested defendant and Purcell in
Arizona after they were involved in an accident while driving Janine’s car. In the
car and on defendant’s person, the officer found incriminating evidence, including
Janine’s checkbook and a check payable to defendant with Janine’s name written
on the signature line. That same day, defendant confessed to strangling and
beating Janine to death for the purpose of stealing her money and car. Six days
later, defendant and Purcell reenacted the killing for the San Bernardino police at
the crime scene. The police audiotaped the confession and videotaped the
reenactment, and the tapes were played to the jury.
The San Bernardino County District Attorney jointly charged defendant
and Purcell with first degree murder and alleged that she and defendant committed
the murder while lying in wait and during the commission of a robbery. The trial
court granted Purcell’s motion for separate trials.
b. Check forgery case
At the time of the murder, defendant faced check forgery charges in an
unrelated case. The victim, Milt Jaffey, was the general manager of the Desert
Rose Center for the Arts (Desert Rose), a fitness center in Barstow. Jaffey used
Desert Rose as his mailing address for his checking account. In June 1990, he left
his job at Desert Rose and moved to Long Beach. He instructed the bank to
forward the checks that he had previously ordered to his new address, but the bank
failed to do so.
In the beginning of September 1990, Danny Smith became the manager of
the Torches Motel in Barstow. About that time, defendant rented a room at the
motel and began working at Desert Rose as a karate instructor. During the first
part of October 1990, defendant asked Smith to cash some checks for him. Smith
cashed several checks, including two written on Jaffey’s account. Jaffey then
discovered that the bank had cashed two forged checks against his account, one
payable to “Danny Smith” and the other to “Michael Combs.” Both checks bore
numbers of a series higher than those in Jaffey’s possession.
Defendant was charged with forging Jaffey’s checks. On October 16,
1990, the trial court released defendant from custody on his own recognizance.
On October 23, 1990, defendant appeared in court regarding the scheduling of a
preliminary hearing. On defendant’s request, the court continued the hearing for
c. Events surrounding the murder
On October 24, 1990—a day after his court appearance—defendant asked
Smith to give him and Purcell a ride to Calico Ghost Town. Because of a prior
engagement, Smith declined. Defendant decided to ask Janine, whom he knew
from Desert Rose, where she was also an employee. Janine also knew Smith, who
took karate lessons.
In Smith’s presence, defendant called Janine and asked her for a ride. At
her request, Smith spoke to Janine, assuring her that defendant really needed a ride
and confirming that defendant was with him at the motel where Smith worked.
When Smith left the motel between 8:00 and 9:00 p.m., defendant and Purcell
were waiting outside for Janine.
In the meantime, sometime after 6:00 p.m. that evening, Janine’s father
received a telephone call from a man asking for Janine. He related that Janine was
at her grandparents’ house and could be reached there. Shortly thereafter, Janine
came home and changed her clothes. She drove off in her white car about 7:30
Also that same evening, Melvin Krizo was camping in a canyon near
Calico Ghost Town. Between 9:00 and 9:30 p.m., Krizo saw a light-colored car
enter the canyon. The car stopped about 50 yards from Krizo’s trailer. In the
dark, Krizo used a 10-power spotting scope and saw a young man and young
woman exit the car, open the trunk, and walk around the area. The couple got
back into the car and drove further into the canyon until Krizo lost sight of them.
Sometime later, the car returned and stopped in front of Krizo’s trailer for a couple
of minutes before driving back into the canyon again.
The next morning, Richard Lee contacted the sheriff’s office after receiving
information about the attempt to cash one of Janine’s checks. That evening, a
passerby flagged down a deputy sheriff after discovering Janine’s body in Odessa
Canyon, near Calico Ghost Town and Krizo’s campsite. Janine’s wrists had been
bound together with a green, nylon cord. She suffered bruises, lacerations, and
abrasions over the upper portion of her body, including her head and neck. A
bone on the left side of her face was visible and there was a ligature imprint on the
front of her neck. The police discovered an electrical extension cord on the side of
the road leading to the canyon location where Janine’s body had been discovered.
The forensic evidence showed that the primary cause of Janine’s death was
strangulation and the secondary cause was blunt trauma to the head. The ligature
mark on Janine’s neck was consistent with the type of mark that would have been
left by an electrical extension cord similar to the one found by police. The scratch
marks, bruising, and abrasions on Janine’s neck indicated that she had struggled
and tried to relieve the pressure on her neck. The blunt trauma to Janine’s head
was consistent with injuries that she would have received from having been struck
with the flashlight recovered from her car. The blood spatter evidence indicated
that Janine had been sitting in an upright position in the front seat of her car when
she was hit on the left side of her head.
On November 2, 1990, while driving Janine’s car, defendant and Purcell
were involved in an automobile accident in Kingman, Arizona. While
investigating the accident, an Arizona police officer received a dispatch regarding
a homicide and car theft in California. Defendant matched the description of one
of the homicide suspects. The car defendant was driving matched the description
of the stolen car, including its license plate number. The officer arrested
defendant and Purcell. In the car, the police found a checkbook belonging to
Janine and her father and a military-type flashlight. In defendant’s pants pocket,
the police discovered a wallet containing Janine’s business card and a check from
the checkbook made payable to defendant, with the name Janine Lee written on
the signature line. Defendant also possessed a green, nylon cord having the same
construction and material as the cord that was used to bind Janine’s wrists.
d. Defendant’s November 2, 1990, Confession
San Bernardino County Sheriff Detectives Mario Lupercio and Dan
Finneran went to Kingman, Arizona, and interviewed defendant in the jail there.
After he was advised of and waived his constitutional rights, defendant agreed to
talk with them. Initially, defendant stated that he did not know who killed Janine
and that he last saw her alive in the canyon area. He admitted that he called Janine
from the motel and asked for a ride to Calico Ghost Town, and that Janine wanted
to speak to Smith because she did not trust him. Defendant claimed that Janine
gave him permission to borrow her car to drive to Mexico. He further claimed that
he asked Janine to drive to the canyon so that someone named John Tanoya could
drive her back to town, even though she did not know Tanoya.
According to defendant, Janine picked defendant and Purcell up at the
motel, dropped Purcell off at Calico Ghost Town, drove defendant to the canyon
area where Tanoya was camping, and stayed with Tanoya so that he could drive
her back to town. Defendant picked up Purcell, and they drove to Mexico in
Janine’s car. Defendant admitted that, along the way, he tried to cash one of
Janine’s checks that she had left in her car and that he had committed forgery.
After the detectives informed defendant they had spoken to a number of
people (including Purcell) and did not believe his story, defendant confessed. He
described how he had planned to kill Janine, and how and why he had killed her.
Defendant related that, several days before the killing, he and Purcell decided to
rob someone they knew, because it would be easier than robbing a stranger. They
planned to kill their victim. They wanted $500-$1,000 and a car. They chose
Smith as their victim from a list of acquaintances, but later reconsidered because
Smith did not always have money and there were too many people around the
motel where he worked.
The afternoon of the murder, defendant decided they should rob and kill
Janine instead. He would call Janine, to tell her he wanted to get away from his
pending court case, and to ask her if she could give him a ride to Calico, where he
planned to camp with a friend. Defendant and Purcell planned to choke Janine
and then tie her up with a green, nylon cord that they had obtained that afternoon.
Defendant told Purcell that he would sit behind Janine in the car and strangle her
with a white extension cord he had found in the motel. Attempting to find
“something better” than the extension cord, they tried unsuccessfully to retrieve a
wire that was holding up a sign in the hotel. Eventually, they gave up looking.
That evening, defendant called Janine from the Torches Motel and asked
her to drive him and Purcell to Calico. He tricked her by inventing a fictitious
friend, John, and asking for a ride to meet him. When Janine questioned
defendant’s story, defendant asked Smith to speak with her on the telephone. At
defendant’s request, Smith confirmed that defendant and Purcell were at the motel
and needed a ride.
After Smith left the motel, Janine picked up defendant and Purcell and
drove them to the Calico campsite area to find John. When they reached Odessa
Canyon, defendant saw a trailer with its lights off on the other side of the canyon.
Janine parked the car, and the three started walking towards the trailer. When
defendant saw a road leading to the trailer, he suggested they drive there instead.
Janine drove and parked near the trailer. Defendant, who was sitting behind
Janine with the extension cord wrapped around his hand, put the cord over
Janine’s head and pulled it against her neck. He consciously pulled the cord hard
against her neck without jerking her head back to ensure that her windpipe was
closed. To tighten the pressure, he crossed his hands behind Janine and braced his
knees against the back of her seat. Because he had been trained as a martial arts
instructor, defendant knew exactly how to kill Janine.
Janine tried to grab the extension cord. As defendant pulled harder on the
cord, Purcell, who was seated in the front passenger seat, lifted Janine’s headrest.
Defendant wrapped the cord around the headrest and tied it off. Because Janine
too had been trained as a martial arts instructor, defendant knew that he would
need to protect himself if she managed to free herself. To ensure that Janine could
not grab the electrical cord around her neck, defendant retrieved the green, nylon
cord in his pocket, gave it to Purcell, and told her to tie Janine’s hands.
Janine continued to struggle. Defendant told Purcell to tie Janine’s hands
through the steering wheel to stop her from “flopping around.” When that failed
to subdue her, defendant told Purcell to hit Janine’s head with a flashlight that was
in the car. Purcell struck Janine’s right temple about five times, until the flashlight
broke. On defendant’s instruction, Purcell went outside to get some rocks.
Purcell then wrapped Janine’s jacket around the rocks, and hit Janine in the face
10 to 15 times. On defendant’s further request, Purcell determined that Janine’s
bowels had moved, indicating that she was dead.
Defendant and Purcell decided to dispose of Janine’s body elsewhere in the
canyon. In order to remove the body, defendant had to burn the seatbelt off and
move the backseat so he could untie the extension cord from the headrest.
Defendant dragged Janine’s body to the back of the car; then he and Purcell placed
the victim in the trunk.
Defendant drove to an area of Odessa Canyon where he had been many
times before. Purcell looked through Janine’s purse and found a checkbook, but
no money or credit cards. Defendant took Janine’s body out of the trunk and, on
Purcell’s request, searched for a wallet. After finding none, they left the body on
the ground. As they drove away, Purcell searched the car for money.
Defendant and Purcell drove to Barstow. They tried to cash one of Janine’s
checks, but the store clerk refused to cash it. They then drove to Mexico. Along
the way, they tried to cash two of Janine’s checks in Lake Elsinore. They sold
some of her property in other locations. After staying some time in Mexico, they
returned to the United States because Purcell did not like living in Mexico.
Defendant admitted that he was sober when he first planned the robbery
and murder and when he chose Janine as the intended victim. On the day of the
murder, he drank no alcohol, but claimed he snorted crystal methamphetamine
with Purcell and Smith about four hours before he called Janine. When the
detectives asked if he felt bad about what they had done to Janine, defendant
reasoned that killing her was not “worth it” because she had no money. The
murder would have been “worth it” only if she had had $5,000 to $10,000. When
asked if he had trouble sleeping since the killing, defendant replied that he tried
not to think about it. Defendant and Purcell laughed about killing Janine and
exhibited no remorse.
e. Defendant’s November 8, 1990 Videotaped Reenactment of the
On November 8, 1990, six days after defendant first confessed, defendant
and Purcell participated jointly in a videotaped reenactment of the crime in which
they confessed to killing Janine. On that date, Detective Lupercio and other
officers transported defendant and Purcell from Arizona to California. During the
drive, defendant and Purcell agreed to reenact the crime on videotape. Detective
Lupercio drove to Odessa Canyon and arranged to have Janine’s car taken there.
At the canyon, the detective advised defendant and Purcell of their constitutional
rights. They agreed to talk about the crime. During the reenactment, defendant
demonstrated how he had choked Janine and essentially repeated what he had said
in his prior confession. Purcell confirmed many of defendant’s incriminating
2. The Defense’s Case
The defense conceded that defendant and Purcell killed Janine. The
primary defense theory at trial was that defendant was unable to form the requisite
mental states of specific intent, premeditation and deliberation, and malice
aforethought based on his alleged mental defects, disorders, and impairments. In
presenting that defense, defendant relied on the testimony of Dr. Crinella, a
clinical psychologist. Dr. Crinella diagnosed defendant as suffering from
childhood brain damage, schizophrenia, and a borderline personality disorder.
Although Dr. Crinella had no opinion regarding defendant’s intent when
committing the crimes, he opined that defendant’s mental disorders influenced the
actions that led him to kill Janine.
On cross-examination, Dr. Crinella testified that defendant was not
mentally retarded, knew right from wrong, and committed crimes for excitement
or an “adrenaline rush.” He acknowledged that other doctors had reached
different diagnoses, finding instead that defendant had a sociopathic or antisocial
personality disorder. Dr. Crinella admitted that defendant could have planned for
nearly a week to commit the robbery and murder, and that he likely found the
planning process exciting. Defendant told Dr. Crinella that he found that killing
Janine gave him the “ultimate high” and an “adrenaline rush” that lasted three
days, that he committed the crimes because he needed Janine’s car and money to
get out of town, and that he chose her because she was available.
B. The Penalty Phase
1. The Prosecution’s Case
In addition to relying on the circumstances of the charged offenses, the
prosecution introduced evidence that in 1984 defendant had two juvenile
adjudications for armed robbery with the use of a knife. He also had four prior
adult felony convictions: attempted second degree burglary and attempted vehicle
theft in 1985, attempted escape in 1987, and forgery of a $3,500 check in 1989.
He had also threatened to use force or violence with homemade weapons during
three separate jail incidents in 1992.
2. The Defense’s Case
The defense presented evidence—through the testimony of defendant’s
relatives, teachers, and mental health professionals—about defendant’s family
background, learning disabilities, medical and psychiatric history, and mental
condition. Defendant grew up in Colorado. Defendant’s relatives testified that his
parents adopted him when he was 18 months old. Although defendant was very
close to his mother, she became occupied with the care of a severely disabled
brother who was born when defendant was five years old. When defendant was
16 years old, his mother died, his father temporarily abandoned the family several
months later; defendant then began to have problems in school and began stealing
from relatives. Defendant’s father returned about a year later and remarried;
defendant’s relationship with him deteriorated. Defendant’s relatives further
testified that his parents did not physically or psychologically abuse him.
Defendant’s teachers testified that, when he was a child, defendant was
classified as a slow learner and placed in special education programs. However,
they did not consider defendant to be mentally handicapped and believed that he
had the abilities and the IQ to function normally in society, with proper training
In October 1983, defendant was admitted to a Colorado psychiatric hospital
and treated for depression. Dr. John Graves, the treating psychiatrist, concluded
that defendant suffered from depression, with some bipolar or manic features, and
from complicated bereavement. Dr. Graves believed that if defendant received
long-term inpatient care, his mental problems could be treated. However,
defendant was discharged after his father refused to pay for further treatment. In
support of his decision, defendant’s father noted that the doctors had not found
defendant to be psychotic; he believed that no one could help defendant until
defendant was willing to change. Dr. Graves acknowledged that when defendant
was discharged from the hospital, he was functioning at a high enough level to be
returned to the outside environment and high school.
In February 1986, when defendant was 19 years old, he voluntarily
admitted himself into a residential psychiatric crisis facility in San Diego for 12
days. Dr. Robert Poor, a psychologist, diagnosed defendant as suffering from
major depression and showing significant signs of having an antisocial personality
disorder. Because defendant had manipulated the staff by relating conflicting
stories and displaying inconsistent behaviors to different staff members, they
believed that defendant had been malingering. Defendant acknowledged that he
knew what he was doing and called it a game. At one point, defendant threatened
to kill his father, but the staff and defendant’s sister did not take the threat
seriously; it was simply part of his continual attention-seeking behavior. At the
end of the 12-day period, Dr. Poor and the staff concluded that defendant could
function in society on his own with outpatient therapy and scheduled defendant for
Although the defense mental health experts agreed that defendant suffered
from mental illness, their diagnoses differed. Dr. Graves opined that defendant
suffered from post traumatic stress disorder, a mixed-type personality disorder,
and complicated bereavement. He believed that defendant was sane, but suffered
from a mental illness that prevented him from considering the consequences of his
actions. Based on defendant’s account, Dr. Graves further concluded that
defendant was intoxicated with amphetamines when he committed the crimes and
that his intoxication aggravated his manic-depressive illness.
Dr. Edward Fischer, a clinical psychologist, conducted neuropsychological
tests on defendant. Dr. Fischer concluded that defendant suffered from
schizophrenia and mania, even though he had never suffered from hallucinations
or delusions. Dr. Fischer also believed that defendant had a brain dysfunction that
he had been born with or that he had developed at an early age. Dr. Fischer did
not agree with Dr. Graves that defendant exhibited signs of depression.
Dr. Crinella testified that electroencephalogram (EEG) tests and a magnetic
resonance imaging (MRI) scan showed abnormalities and lesions in defendant’s
brain. The doctor concluded that defendant suffered from an organic brain
syndrome, having suffered brain damage early in life, perhaps prenatally.
3. Prosecution Rebuttal Evidence
Dr. Oshrin, a forensic psychiatrist who specialized in working with
criminals, interviewed defendant on November 23, 1990. The doctor did not find
that defendant was depressed, but instead found him to be in control of himself,
coherent, of average intelligence, and able to communicate and think clearly.
Defendant told Dr. Oshrin that he only took amphetamines about twice a year and
was not addicted. Regarding the murder, defendant admitted that he and Purcell
killed Janine to steal her money and had planned how they would do it. He knew
that killing was wrong and against the law.
Dr. Oshrin concluded that defendant was not suffering from an organic
brain disorder, psychosis, or any specific or identifiable mental illness. He
believed that age caused defendant’s brain lesions. The doctor diagnosed
defendant as having a probable antisocial personality disorder and exhibiting the
characteristics of a good con artist. This disorder did not affect defendant to the
extent that he did not know of or could not control his actions. Dr. Oshrin did not
believe that the psychological tests the defense experts used had any place in
While in jail in December 1992, defendant told Robin Hunt, a nurse, that
his goal was to obtain a mental illness diagnosis, which he hoped would reduce the
charges against him. He planned to inflict wounds on himself to manipulate the
staff into finding that he had a mental illness.
A. Guilt Phase Issues
1. Leg Restraints
Defendant contends that his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights under the United States Constitution were violated because he
was placed in leg restraints during trial. We disagree.
Part of the jury selection process was held in a building in the Orange Show
Fairgrounds. Because of security concerns at that location, the trial court stated its
intent to have defendant placed in leg restraints during jury selection. Defendant
stipulated to the leg restraints “as long as they’re not visible.” To ensure that the
potential jurors would not see defendant’s leg restraints, the court stated that “the
counsel table and the physical layout of the courtroom in that building will be laid
out such so that none of the prospective jurors that get anywhere close to the
counsel table can see any leg restraints.” The court further guaranteed that
defendant would be brought into and taken out of the courtroom outside the
presence of the jury and that the glass doors to the room would be covered with
Defendant later made a motion to remove the leg restraints for the
remainder of the trial. The prosecutor simultaneously moved to keep defendant in
leg restraints throughout the trial. The trial court granted the prosecution’s
motion, ordering that leg restraints be placed on defendant during trial.
“A criminal defendant cannot be physically restrained in the jury’s presence
unless there is a showing of manifest need for such restraints. [Citation.] Such a
showing, which must appear as a matter of record [citation], may be satisfied by
evidence, for example, that the defendant plans to engage in violent or disruptive
behavior in court, or that he plans to escape from the courtroom [citation]. A
shackling decision must be based on facts, not mere rumor or innuendo.” (People
v. Anderson (2001) 25 Cal.4th 543, 595.) “ ‘The imposition of physical restraints
in the absence of a record showing of violence or a threat of violence or other
nonconforming conduct will be deemed to constitute an abuse of discretion.’
[Citation.] A reviewing court will uphold the decision of the trial court to shackle
a defendant, however, absent an abuse of discretion. [Citation.]” (People v.
Hawkins (1995) 10 Cal.4th 920, 944, italics added, overruled on other grounds in
People v. Lasko (2000) 23 Cal.4th 101, 110.)
Here, the record amply demonstrates that defendant had threatened violence
and engaged in nonconforming conduct. In ruling as it did, the trial court relied
on the report of a psychologist, Dr. Malancharuvil, who had evaluated defendant
pursuant to section 1368. Dr. Malancharuvil’s report stated that defendant was a
serious suicidal and homicidal risk; defendant had threatened to “nut up” in the
courtroom and had detailed “how he would set himself up to be shot by one of the
deputies by fighting with one of them or some court official.” In addition, the
report stated the following: “Because [defendant] has decided it would be against
his interest to go through the trial, he becomes resistant, suicidal and disruptive as
the trial date approaches. He uses intimidation, manipulation and
decompensation as methods of resisting trial. He’s likely to be at least initially
disruptive during the trial process, particularly in the early stages of trial. He
should be carefully watched immediately prior to and during the trial process, as
he’s likely to incite officers to get into a scuffle with him.”3
In addition to Dr. Malancharuvil’s report, the prosecution presented the
report of Dr. Kania, another court-appointed psychologist who had evaluated
(Footnote continued on next page.)
The trial court further relied on the prosecutor’s representation that, on
February 19, 1992, defendant had possessed two shanks in jail and had threatened
jail deputies. Defendant did not dispute that factual assertion. Thus, we conclude
that the record supports the court’s finding of defendant’s potential for violence
and its concern for the safety of defendant, deputies, and others in the courtroom.
(People v. Pride (1992) 3 Cal.4th 195, 232-233 [series of threats against deputies];
People v. Duran (1976) 16 Cal.3d 282, 292, fn. 11 [“[a]n accused may be
restrained . . . on a showing . . . that he plans to disrupt proceedings”]; see also
People v. Alvarez (1996) 14 Cal.4th 155, 190-192 [possession of explosive device
and weapons in jail was grounds for restraint].)
Nevertheless, defendant argues that Dr. Malancharuvil’s report should have
been updated to contain more current information—the doctor’s report was dated
April 24, 1992, but trial began in February 1993—and that other alternative
security measures, such as the use of more guards, should have been considered.
However, defendant never complained that Dr. Malancharuvil’s report contained
outdated or inaccurate information, nor did he request that alternative security
measures be tried first. He only argued that the restraints were unnecessary
because he had not tried to escape from the courtroom and had not caused anyone
harm there. When the trial court announced it would follow the same procedure
during trial as it had during the voir dire proceedings in the Orange Show
(Footnote continued from previous page.)
defendant pursuant to section 1368. Dr. Kania had also opined that defendant was
likely to incite a fight with deputies before and during trial. Defendant objected to
the court’s reliance on Dr. Kania’s report on the ground that defendant had
retained that doctor, and any information he provided regarding defendant was
confidential. The trial court agreed to consider only Dr. Malancharuvil’s report.
Fairgrounds to ensure that the jury would not see the leg restraints, defendant did
not claim that those procedures were ineffective. He asked only that the court
follow the normal procedure of having only two uniformed deputies in the
courtroom, to which the court agreed. Moreover, defendant acknowledged that he
had “discipline problems as late as December 1992, and a previous incident in
August 1992,” but he attempted to minimize them as “relatively minor.”
Finally, “we have consistently held that courtroom shackling, even if error,
was harmless if there is no evidence that the jury saw the restraints, or that the
shackles impaired or prejudiced the defendant’s right to testify or participate in his
defense.” (People v. Anderson, supra, 25 Cal.4th at p. 596; People v. Tuilaepa
(1992) 4 Cal.4th 569, 583-584.) Here, defendant did not testify at the guilt or
penalty phase of trial, and there is no evidence or claim his leg restraints
influenced him not to do so, or that they distracted him or affected his demeanor
before the jury. (See People v. Mar (2002) 28 Cal.4th 1201, 1219.) Because there
is no evidence that the jury ever saw the restraints, we have no basis to find that
defendant was prejudiced. (People v. Coddington (2000) 23 Cal.4th 529, 651,
overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046,
1069, fn.13 [any error harmless where defendant failed to complain during trial
that procedures were not followed to hide leg restraints or that jury saw them].)
2. Evidentiary Issues
a. Statements Made During Videotaped Reenactment of Crime
On November 8, 1990, defendant and Purcell participated jointly in a
videotaped reenactment of the crime in which they confessed to killing Janine.
Defendant contends that the admission of Purcell’s statements during the
videotaped reenactment violated his United States Constitution Sixth Amendment
right of confrontation. He further claims that the admission of his own statements
violated his United States Constitution Fifth Amendment privilege against self-
incrimination and his Sixth Amendment right to counsel. We conclude that the
claims lack merit.
1) Underlying Facts
On Detective Lupercio’s request, defendant and Purcell sat in Janine’s car
in the same positions as they had on the night of the murder. Defendant then
described in detail and demonstrated how he had choked Janine. He also related
that he instructed Purcell to hit Janine on the head with the flashlight to ensure that
she was dead, and to find rocks outside and wrap them in Purcell’s jacket, and to
hit Janine on the head with the rocks, which Purcell proceeded to do. They then
tied Janine’s hands together with nylon cord.
In defendant’s presence, Purcell confirmed that on defendant’s request she
struck Janine in the head with a flashlight that was in the car, struck Janine several
times in the head with rocks wrapped in Janine’s jacket, and retrieved a cord from
defendant’s jacket and used it to tie Janine’s hands together. Purcell added that
defendant asked her to see if Janine was dead by checking her pulse and if she had
soiled herself. Purcell felt that Janine’s leg was wet, but could not tell if Janine’s
heart was still beating because her own heart was beating so heavily.
Defendant recounted that their initial plan was to kill Smith for a car and
money, but that they decided to kill Janine instead. When defendant stated that he
and Purcell initially talked about killing Smith one or two days before they killed
Janine, Purcell interrupted and said that, “It was that day.” Defendant agreed that
they might have planned to kill someone either that same day or the day before.
Although their initial plan was for Purcell to distract Smith so that defendant could
hit him on the head, they decided against it because there were too many people at
When asked if she agreed with defendant, Purcell responded that she did
not have any “thought of murder,” that defendant mentioned hitting Smith on the
head, and that she did not think it was a good idea because Smith had no money.
When defendant suggested Janine, Purcell claimed that “half of me was serious
about it and half of me never thought it would happen.”
At one point, Detective Lupercio questioned defendant and Purcell
separately; defendant stood outside, while Purcell remained in the car. Defendant
stated that, when he took Janine’s body out of the trunk, he checked to see if she
was still breathing. When Purcell yelled that she found no money or wallet in
Janine’s purse, defendant searched her body. When Detective Lupercio
questioned Purcell separately about what she was doing while defendant unloaded
Janine’s body, Purcell confirmed that she had searched the car and Janine’s purse
and yelled out to defendant that she found no wallet or money. She added that she
was angry about “everything.” Purcell related that, after leaving the canyon, they
disposed of Janine’s property in various places and tried unsuccessfully to cash
some of her checks in Barstow. They were later able to cash a check that
defendant “had written.” Purcell further confirmed that they had planned to lure
Janine to Odessa Canyon to steal her money and car.
Detective Lupercio spoke alone with defendant again. Defendant
confirmed that they tried to cash some of Janine’s checks in Barstow and disposed
of her property at various places between the killing and their arrest.
2) Purcell’s Statements During Videotaped Reenactment
During trial, defendant moved to excise Purcell’s statements from the
videotape on the ground that they were self-serving attempts to diminish her
responsibility and to shift the blame to defendant, and thus, were inadmissible
under People v. Aranda (1965) 63 Cal.2d 518, and Bruton v. United States (1968)
391 U.S. 123. The prosecutor opposed the motion, arguing that Purcell’s
statements were admissible hearsay qualifying as declarations against penal
interest or adoptive admissions. The trial court denied the motion, finding that—
unlike the situation in Aranda and Bruton—Purcell’s statements were not
untrustworthy or self-serving. She incriminated herself and did not attempt to
place more blame on defendant. To the extent she incriminated defendant, she
simply confirmed what he had already confessed to. The court admitted the
videotape and its transcription, which included Purcell’s statements.
Defendant argues that admission of Purcell’s statements violated the
Aranda/Bruton rule. We have rejected a similar argument. (People v. Brown
(2003) 31 Cal.4th 518, 537.) “The Aranda/Bruton rule addresses the situation in
which ‘an out-of-court confession of one defendant . . . incriminates not only that
defendant but another defendant jointly charged.’ (People v. Fletcher (1996) 13
Cal.4th 451, 455, italics added, fn. omitted.) ‘The United States Supreme Court
has held that, because jurors cannot be expected to ignore one defendant’s
confession that is “powerfully incriminating” as to a second defendant when
determining the latter’s guilt, admission of such a confession at a joint trial
generally violates the confrontation rights of the nondeclarant.” (Ibid., italics
added.) In this case, [declarant] was not jointly charged or tried with defendant,
but was separately tried and convicted of murder. Accordingly, the
Aranda/Bruton rule does not preclude admission of [declarant’s] extrajudicial
statements against defendant.” (Ibid.)
Defendant further argues that, because the “majority” of Purcell’s
statements shifted the principal blame for the homicide onto defendant while
minimizing her own role, the statements were unreliable and thus violated his
United States Constitution Sixth Amendment right to confrontation. In Ohio v.
Roberts (1980) 448 U.S. 56, the high court held that the confrontation clause does
not bar admission of an unavailable witness’s hearsay statement against a
defendant if the statement bears “adequate ‘indicia of reliability.’ ” (Id. at p. 66.)
To meet the requirement of reliability under the Roberts test, the evidence must
fall either within a “firmly rooted hearsay exception” or contain “particularized
guarantees of trustworthiness” such that adversarial testing would be expected to
add little, if anything, to the statement’s reliability. (Ibid.) “[T]he ‘particularized
guarantees of trustworthiness’ required for admission under the Confrontation
Clause must . . . be drawn from the totality of circumstances that surround the
making of the statement and that render the declarant particularly worthy of
belief.” (Idaho v. Wright (1990) 497 U.S. 805, 820.)
In finding Purcell’s statements to be reliable and trustworthy, the trial court
noted that: (1) the statements were against her penal interests, and/or (2) Purcell
confirmed defendant’s description of the crime throughout the videotape—
including her own culpability—and never blamed defendant any more than he had
already blamed himself. Thus, the court found her statements admissible as
statements against her penal interest or as adoptive admissions.
However, since then, the high court has overruled the test in Ohio v.
Roberts, supra, 448 U.S. 56. (Crawford v. Washington (2004) 541 U.S. ___ [124
S.Ct. 1354, 1369-1374] (Crawford).) Instead, Crawford held that “[w]here
testimonial [hearsay] evidence is at issue . . . the Sixth Amendment demands what
the common law required: unavailability and a prior opportunity for cross-
examination.” (Id. at 541 U.S. at p. ___ [124 S.Ct. at p. 1374].) Although the
high court did not comprehensively define the term “testimonial,” it noted,
“[w]hatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” (Id. at 541 U.S. at p. ___ [124 S.Ct. at p. 1374], italics added.) It
further noted that “The [confrontation] Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” (Id. at p. ___, fn. 9 [124 S.Ct. at p. 1369.)
Although we question whether Crawford can be applied retroactively to
cases with final judgments (see Crawford, supra, 541 U.S. at p. ___ [124 S.Ct. at
pp. 1374, 1378] (conc. opn. of Rehnquist, J.) [describing majority decision as “a
mantle of uncertainty over future criminal trials in both federal and state courts”;
“the new rule”; and “a change of course”]), we need not decide that issue because
defendant’s Sixth Amendment right to confrontation was not implicated. As in
Crawford, here, Purcell’s statements made during the police interrogation are
testimonial, and it does not appear from the record that defendant had a prior
opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. ___, ___,
fn. 4 [124 S.Ct. at pp. 1370 & 1365.) Defendant did not dispute Purcell’s
unavailability at trial, nor does he do so on appeal. However, Purcell’s statements
incriminating defendant were not admitted for purposes of establishing the truth of
the matter asserted, but were admitted to supply meaning to defendant’s conduct
or silence in the face of Purcell’s accusatory statements. (People v. Silva (1988)
45 Cal.3d 604, 624; CALJIC No. 2.71.5.) “[B]y reason of the adoptive
admissions rule, once the defendant has expressly or impliedly adopted the
statements of another, the statements become his own admissions . . . . [Citation.]
Being deemed the defendant’s own admissions, we are no longer concerned with
the veracity or credibility of the original declarant.” (Silva, supra, 45 Cal.3d at p.
“Evidence of a statement offered against a party is not made inadmissible
by the hearsay rule if the statement is one of which the party, with knowledge of
the content thereof, has by words or other conduct manifested his adoption or his
belief in its truth.” (Evid. Code, § 1221.) The statute contemplates either explicit
acceptance of another’s statement or acquiescence in its truth by silence or
equivocal or evasive conduct. “There are only two requirements for the
introduction of adoptive admissions: ‘(1) the party must have knowledge of the
content of another’s hearsay statement, and (2) having such knowledge, the party
must have used words or conduct indicating his adoption of, or his belief in, the
truth of such hearsay statement.’ [Citation.]” (People v. Silva, supra, 45 Cal.3d at
p. 623.) Admissibility of an adoptive admission is appropriate when “ ‘a person is
accused of having committed a crime, under circumstances which fairly afford
him an opportunity to hear, understand, and to reply, and which do not lend
themselves to an inference that he was relying on the right of silence guaranteed
by the Fifth Amendment to the United States Constitution . . . .’ ” (People v. Riel
(2000) 22 Cal.4th 1153, 1189.)
In defendant’s presence, Purcell stated that: (1) defendant directed her to
strike Janine with the flashlight and rocks, to determine if she was dead, and to tie
her hands, and (2) defendant came up with the idea of robbing and killing Janine.
Defendant’s own prior direct admissions confirmed the truth of Purcell’s
statements. Purcell said nothing incriminating that defendant himself had not
already admitted. After Purcell corroborated defendant’s prior admissions, he
never retracted them; thus, he continued to acknowledge the truth of Purcell’s
statements. Under these circumstances, her statements inculpating defendant
during the joint interview qualify as adoptive admissions.
Purcell further stated—out of defendant’s presence—that they disposed of
Janine’s property and attempted to cash her checks after the killing and robbery.
When the police later related Purcell’s statements to defendant, he confirmed their
accuracy. Thus, he expressly adopted them.
Having concluded that Purcell’s statements were admissible under the
adoptive admissions rule, the trial court submitted to the jury the question whether
defendant’s conduct actually constituted an adoptive admission. The jury was
instructed how to consider the evidence, including that “[e]vidence of such an
accusatory statement is not received for the purpose of proving its truth, but only
as it supplies meaning to the silence and conduct of the accused in the face of it.
Unless you should find that the defendant’s silence and conduct at the time
indicated an admission that the accusatory statement was true, you should entirely
disregard the statement.” (CALJIC No. 2.71.5.)
Thus, because Purcell’s statements were admitted for a nonhearsay
purpose, defendant’s Sixth Amendment right was not implicated. (United States
v. Kehoe (8th Cir. 2002) 310 F.3d 579, 590-591; Globe v. Florida (Fla. 2004) 877
So.2d 663, 672-673.)
3) Defendant’s Statements and Conduct During Videotaped
Reenactment of Crime
Defendant orally moved to suppress his videotaped statements without
stating a basis for the motion. The prosecution filed a written opposition, arguing
that defendant made his statements voluntarily because the police did not engage
in physical or psychological pressure when they interviewed him.
At the suppression hearing, defense counsel informed the trial court that the
“general nature” of the motion to suppress was “on the issue of voluntariness.”
Counsel claimed that defendant’s Miranda waiver (Miranda v. Arizona (1966)
384 U.S. 436) was invalid because he did not specifically waive his rights to
remain silent and obtain counsel. The trial court rejected the claim, finding that
defendant was adequately advised of and validly waived his Miranda rights. The
court then asked defense counsel about the previous “general objection” on the
voluntariness issue, inquiring whether he wanted to make an objection for the
record. Defense counsel declined and merely submitted the issue. The court ruled
“With respect to the video crime scene reenactment, the advisal of rights
were given again by Detective Lupercio. I believe right after the advisal of rights
there was a question by Detective Lupercio—or a statement to the effect, ‘Well,
we didn’t force you do to this, did we?’ And the answer from both Miss Purcell
and [defendant] was ‘no.’
“The Court paid particular attention to the demeanor of—this is with
respect to Court’s Exhibit 2, the video, the Court paid particular attention to the
demeanor of Detective Lupercio, the demeanor of Miss Purcell and [defendant].
As far as the Court could tell, Detective Lupercio was not overbearing or
intimidating. Miss Purcell and [defendant] were handcuffed in front, but other
than that, there was no further restraints on them other than the ones that would go
along with someone being in custody.
“The tone of [defendant’s] voice on Exhibit 2 was very controlled, it was
“As [defense counsel] pointed out, there were a couple of times,
particularly around the discussion of the flashlight, when Miss Purcell appeared to
sob for a very brief few moments, but other than that, Miss Purcell didn’t have too
much show of emotion.
“And based on all of those considerations, the Court is satisfied by a
preponderance of the evidence, and in fact beyond a reasonable doubt, that the
waiver of the constitutional rights, both [defendant] and Miss Purcell, were free
and voluntary and they were intelligently made, and the Court will deny the
motion, defense motion, to exclude [the videotape] on that basis also.”
On appeal, defendant appears to have abandoned the claim that his waiver
was invalid because he did not specifically waive his privilege against self-
incrimination and right to counsel. Rather, he contends that his United States
Constitution Fifth and Sixth Amendment rights were violated because he did not
knowingly, intelligently, and voluntarily waive his privilege against self-
incrimination, waive his right to counsel, and consent to the videotaped interview.
He argues that: (1) the circumstances surrounding the videotaped reenactment
were “not conducive to a knowing and intelligent waiver,” and (2) he did not
receive a “precise indication that he was entitled to counsel and that one would be
appointed for him.” We disagree.
“Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights
conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly
and intelligently.’ [Citation.] The inquiry has two distinct dimensions.
[Citations.] First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have been made
with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the ‘totality of the
circumstances surrounding the interrogation’ reveals both an uncoerced choice and
the requisite level of comprehension may a court properly conclude that the
Miranda rights have been waived. [Citations.]” (Moran v. Burbine (1986) 475
U.S. 412, 421.)
Defendant contends that he did not voluntarily waive his rights because law
enforcement held him isolated in custody for a long time without arraigning him
or giving him the ability and opportunity to contact counsel. Because defendant
failed to raise these claims in the trial court, he has forfeited them on appeal.
(People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13 [claim that car trip was a
coercive psychological ploy designed to compel confession forfeited; defendant
failed to rely on the purportedly coercive nature of car trip in trial court].) As the
Attorney General states, no evidence was presented at the suppression hearing
addressing whether the duration and nature of defendant’s confinement, including
the car trip and the location of the interrogation, rendered defendant’s confession
involuntary. Nor was any showing made that defendant ever requested counsel,
that his arraignment was illegally delayed, or that his admissions were the product
of such a delay. (People v. Sapp (2003) 31 Cal.4th 240, 270 [defendant failed to
make necessary showing that confessions were product of illegal delay in
Moreover, defendant does not now dispute the trial court’s factual findings
regarding the “general” voluntariness of his videotaped statements, nor could he
effectively dispute those findings. Indeed, defendant simply repeated the same
admissions he had made to the police six days earlier on the day of his arrest.
Under these circumstances, we will not address defendant’s current claim of
involuntariness for the first time on appeal. (People v. Ray (1996) 13 Cal.4th 313,
339 [parties had no incentive to litigate involuntariness theory fully below, and
trial court had no opportunity to resolve material factual disputes and make
necessary factual findings].)
Defendant’s second claim that he was inadequately advised of his right to
counsel is clearly without merit. At the Evidence Code section 402 hearing,
Detective Lupercio testified that he read defendant the Miranda warnings from a
department-issued card. He began the videotaped interview with the following
“Lupercio: Ok, before we go on I’m going to read you your rights. Ok?
You have the absolute right to remain silent, anything you say can and will be
used as evidence against you in a court of law. You have the right to consult with
an attorney, to be represented by an attorney, and to have an attorney present
before and during questioning. If you cannot afford an attorney, one will be
appointed by the court, free of charge to represent you before and during
questioning if you desire. Just answer yes or no. Do you understand the rights I
have just explained to you?
“Lupercio: With these rights in mind are you willing to talk to me about
the charges against you?
“Lupercio: For the purpose of this tape also in no way were you forced to
come up here to do this video reenactment, is that correct?
“[Defendant]: That’s correct.
“[Purcell]: That’s correct.”
Defendant was told in no uncertain terms that he had the right to consult
with, to be represented by, and to have an attorney present before and during
questioning, and the further right to have counsel appointed if he was indigent. He
never requested an attorney or indicated that he wished to end the interview.
(People v. Whitson (1998) 17 Cal.4th 229, 249-250.) Finally, defendant fails even
to suggest what advisements should have been given. Because he was given the
standard Miranda advisements, and because he stated that he understood his rights
and was willing to talk with the police, defendant’s claim that he was not fully
advised of his right to counsel fails. (Duckworth v. Eagan (1989) 492 U.S. 195,
201-205; People v. Sully (1991) 53 Cal.3d 1195, 1233.)
b. Family Members’ Testimony
Defendant argues that the trial court violated his United States Constitution
Fifth and Fourteenth Amendment rights by admitting the irrelevant and highly
prejudicial testimony of Janine’s family members.
The trial court admitted the testimony of Janine’s father and sister, which
was brief. Her father, Richard Lee, testified that, on October 24, 1990, someone
called their house and asked to speak with Janine. Richard Lee related that Janine
was not home and could be contacted at her grandparents’ house. Janine returned
home about 7:00 p.m. and drove off in her white 1988 Ford Tempo about 7:30
p.m. That was the last time Richard Lee saw his daughter. The next morning,
someone from a store in Lake Elsinore called and informed him that a man had
tried to cash one of Janine’s checks. After receiving that information, he notified
the police. Richard Lee identified the checkbook found in Janine’s car—last
driven by defendant—as belonging to Janine and stated that she always carried it.
Janine’s sister, Linda Lee, testified that she had two brothers and a sister,
Janine, and that Richard Lee was their father. Linda identified Janine from an
Defendant did not object to the admission of the above testimony.
Consequently, his claim is forfeited on appeal. (Evid. Code, § 353, subd. (a));
People v. Raley (1992) 2 Cal.4th 870, 896.)
In any event, the claim lacks merit. Richard Lee’s identification of Janine’s
checkbook and car and his testimony that he learned someone had tried to cash her
check the morning after her disappearance corroborated defendant’s confession
and was relevant to establish that defendant killed Janine to steal her money and
car. His testimony relating to the call Janine received and her later departure
corroborated defendant’s confession that he tricked Janine into giving them a ride
that night and was relevant to establish premeditation and deliberation. In
addition, Richard Lee’s testimony served to fill in the chronology of events from
the evening of October 24, when Janine disappeared, to the following morning.
(See People v. Bolin (1998) 18 Cal.4th 297, 322 [testimony of victim’s relatives
properly admitted to fill in chronology of events].)
Linda’s identification was relevant to prove that Janine was a human being
who had been alive before the alleged criminal act had occurred and was dead
afterwards. (See People v. Bonin (1989) 47 Cal.3d 808, 849; see also People v.
Scheid (1997) 16 Cal.4th 1, 15 [photograph showing bloodied, lifeless body
relevant to establish murder had occurred].)4
Finally, the testimony was not unduly prejudicial. As the Attorney General
points out, the testimony was brief and factual, and the record does not reflect that
either witness made any emotional outbursts. (People v. Kipp (1998) 18 Cal.4th
349, 374.) Thus, the trial court properly admitted the testimony of the victim’s
c. Blood Spatter Evidence
Criminalist Craig Ogino testified that blood spatter evidence showed that
Janine had been sitting in an upright position in her car when she was hit on the
left side of her head. Defendant argues that the trial court erred in admitting that
evidence because: (1) it was presented as if it had an “aura of scientific
infallibility,” and (2) Ogino was not qualified to testify as an expert on blood
spatter evidence. Because defendant did not object to the blood spatter testimony
or to Ogino’s qualification as an expert on blood spatter evidence in the trial court,
defendant has forfeited both issues. (People v. Bolin, supra, 18 Cal.4th at p. 321.)
In any event, the claim fails on the merits. Regarding the first issue,
defendant fails to explain how the testimony was presented with an “aura of
scientific infallibility,” nor do we discern any such “aura.” (See People v. Clark,
4 Although we have observed that a relative’s testimony may be inadmissible to
establish the identity of a murder victim if there is an offer to stipulate to the facts
to be established by the testimony (People v. Wash (1993) 6 Cal.4th 215, 247),
defendant did not offer to stipulate to those facts.
supra, 5 Cal.4th at p. 1018 [blood spatter analysis testimony does not produce an
aura of scientific infallibility].)
Regarding the second claim, the record amply supports Ogino’s
qualification as an expert in blood spatter evidence. (See Evid. Code § 720, subds.
(a), (b).) The record reveals that Ogino had a bachelor of science degree in
chemistry and was working towards a master’s degree in criminalistics from
California State University at Los Angeles. He had taken classes in forensic
microscopy and bloodstain pattern interpretation taught by particular individuals
or at other institutions. He was employed as a criminalist with the San Bernardino
County Sheriff’s Department crime laboratory and had previously worked at the
Los Angeles County Coroner’s Office in the serology section. In addition, he
taught classes in his field of expertise.
Defendant complains that Ogino’s expertise was not established because he
failed to state that the specified classes he attended had been taught at a university
or by qualified individuals, or to specify how many tests he had conducted in the
past. These complaints regarding the degree of his knowledge go more to the
weight of the evidence than to its admissibility. (People v. Bolin, supra, 18
Cal.4th at p. 322.) Moreover, defense counsel could have questioned Ogino on
these subjects during cross-examination, but did not do so. Ogino’s educational
background and work experience fully qualified him to testify as an expert on
blood spatter evidence. (ibid.; People v. Clark, supra, 5 Cal.4th at pp. 1018-
3. Sufficiency of the Evidence
Defendant contends the evidence, in several respects, was insufficient to
support the judgment. In reviewing a criminal conviction challenged as lacking
evidentiary support, “ ‘the court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.] ” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
The same standard of review applies to special circumstance allegations. (People
v. Maury (2003) 30 Cal.4th 342, 396.) An appellate court must accept logical
inferences that the jury might have drawn from the evidence even if the court
would have concluded otherwise. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
a. First degree murder conviction; robbery-murder special-
The prosecution tried the case under a theory that Janine’s murder either
was deliberate and premeditated or was perpetrated during the commission of a
robbery. Defendant claims that the jury’s verdict of first degree murder is not
supported by sufficient evidence on either theory.
Deliberate, premeditated murder
Defendant contends that the prosecution presented insufficient evidence of
premeditation and deliberation because none of the categories of evidence set forth
in People v. Anderson (1968) 70 Cal.2d 15 were met in this case. In Anderson, we
“identified three categories of evidence relevant to resolving the issue of
premeditation and deliberation: planning activity, motive, and manner of killing.”
(People v. Bolin, supra, 18 Cal.4th at p. 331.) However, these factors are not
exclusive, nor are they invariably determinative. (People v. Silva (2001) 25
Cal.4th 345, 368.) “ ‘Anderson was simply intended to guide an appellate court’s
assessment whether the evidence supports an inference that the killing occurred as
the result of preexisting reflection rather than unconsidered or rash impulse.
[Citation.]’ ” (Bolin, supra, 18 Cal.4th at pp. 331-332.)
As to planning and motive, defendant asserts that the evidence showed he
only planned to camp with Purcell and asked “anyone he could find for a ride” to
the campsite; he demonstrated no clear motive or intent to rob Janine before he
killed her; and the evidence that he robbed her was “minimal.” As to the manner
of killing, defendant claims that he strangled Janine suddenly because he used
“whatever was at hand,” and then fled the scene.
Defendant clearly ignores most, if not all, of the incriminating evidence
presented at trial—to the point we question whether he is speaking about the same
case. The evidence of his motive and planning was overwhelming. Defendant
told the detectives that he needed money and a car to leave town to avoid the
check forgery charges and that he decided to rob a friend—the easiest way to
achieve his goal—and to kill that person. He further described the details of his
original plan—to lure Smith into a motel room and hit him on the head from
behind—and the details of his changed plans—to replace Smith with Janine when
he could not catch Smith alone, and to lure Janine into the desert at night by
pretending he needed a ride to a campsite in Odessa Canyon. (People v. Silva,
supra, 25 Cal.4th 345, 369 [“murder’s isolated location, selected by defendant, is
itself evidence of planning”].) Smith confirmed that defendant had initially asked
him for a ride and that, at defendant’s request, he assured Janine that defendant
needed a ride.
Defendant further described how he planned to kill Janine with cords that
he had obtained ahead of time, how he and Purcell committed the crimes, and
what they did afterwards. Their actions included placing Janine’s body in the
trunk of the car, driving to another part of the canyon to dispose of the body,
checking the body for money and to verify that Janine was dead, cashing one of
Janine’s checks, and fleeing the country. (See People v. Perez (1992) 2 Cal.4th
1117, 1128 [defendant’s search of drawers and jewelry boxes—rather than
immediate flight from scene—supported premeditation and deliberation].) Krizo’s
testimony—that a young man and woman opened the trunk of a car which
matched the description of Janine’s car—corroborated defendant’s portrayal of his
and Purcell’s actions after they had killed Janine.
As to manner of killing, the use of multiple weapons (cord, flashlight, and
rocks)—supported by defendant’s statements and the forensic evidence—reflected
deliberation and premeditation rather than the result of a rash, impulsive act.
(People v. Steele (2002) 27 Cal.4th 1230, 1250 [killing the same way twice—
victim strangled and stabbed multiple times—supported inference of calculated
design to ensure death, rather than “ ‘unconsidered “explosion” of violence’ ”];
People v. Bonillas (1989) 48 Cal.3d 757, 792 [“[l]igature strangulation is in its
nature a deliberate act”].)
Defendant further argues that he presented evidence, through Dr. Crinella’s
testimony, of his inability to form the specific intent to kill. He claims that the
prosecution never refuted that evidence, and that consequently, there was
insufficient evidence that he intended to kill. However, the jury remained free to
reject Dr. Crinella’s testimony even if it was uncontradicted. (People v. Johnson
(1992) 3 Cal.4th 1183, 1231-1232.)
Moreover, Dr. Crinella’s testimony did not strongly support a finding of no
premeditation. Although Dr. Crinella opined that defendant was mentally ill and
that his illness and mental disorders influenced his actions that led him to kill
Janine, the doctor gave no opinion regarding defendant’s intent when he
committed the crimes. On cross-examination, Dr. Crinella conceded that
defendant was not mentally retarded, that he knew right from wrong, that he had
committed crimes for excitement or an “adrenaline rush,” that he could have
planned the robbery and murder for nearly a week beforehand, and that he likely
found the planning process exciting. Defendant told Dr. Crinella that committing
the murder gave him an “adrenaline rush” that lasted three days. The doctor
further acknowledged that other doctors had reached different diagnoses, finding
that defendant had a sociopathic or antisocial personality disorder.
Given the extensive evidence of premeditation and deliberation and the
inconclusive evidence of mental disease or defect, the jury was entitled to reject
the defense expert testimony. (People v. Hernandez (1988) 47 Cal.3d 315, 350-
351.) Under all the circumstances, we find ample evidence of premeditation and
Robbery-felony murder; robbery-murder special-circumstance
Again, ignoring his two confessions, defendant claims that there was no
evidence that he intended to steal before or during the killing. He claims that the
“total of the evidence regarding the crime of robbery” consisted of the fact he
possessed Janine’s checkbook, a forged check, and Janine’s car after the homicide
and that his only motive before the killing was to obtain a ride from Janine so that
he and Purcell could go camping. Thus, he argues that, because the evidence
showed that the robbery was merely incidental to the murder, the robbery-felony
murder conviction and the robbery-murder special-circumstance finding were not
supported by sufficient evidence. (People v. Kipp (2001) 26 Cal.4th 1100, 1128;
People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other grounds in In re
Sassounian (1995) 9 Cal. 4th 535, 543, fn. 5.)
To the contrary, the same evidence that established defendant intentionally
killed Janine with deliberation and premeditation also established that he killed her
while committing a robbery.5 (See ante, at pp. 33-34; People v. Hillhouse, supra,
Defendant contends that his confessions cannot supply the necessary
elements for the robbery component of felony murder and the robbery-murder
(Footnote continued on next page.)
27 Cal.4th at p. 500 [sufficient evidence that killing accompanied by intent to steal
where defendant stated victim had money and he was going to kill him and take
it].) Further, when arrested, defendant was driving Janine’s car and possessed her
checkbook and one of her checks made out to himself. (People v. Hughes (2002)
27 Cal.4th 287, 357 [sufficient evidence that defendant harbored larcenous intent
before or during use of force where defendant stole victim’s wallet and cashed one
of her checks shortly after killing].) Consequently, there is sufficient evidence to
support a first degree robbery felony-murder conviction and the robbery-murder
b. Lying-in-wait special-circumstance finding
Defendant contends that the evidence was insufficient to support the lying-
in-wait special-circumstance finding because he was not physically concealed in
the car, and the lying-in-wait period was disrupted when the occupants briefly
stepped from the car. He is wrong.
“ ‘The lying-in-wait special circumstance requires “an intentional murder,
committed under circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and (3)
immediately thereafter, a surprise attack on an unsuspecting victim from a position
of advantage . . . .” [Citations.] “The element of concealment is satisfied by a
(Footnote continued from previous page.)
special circumstance. However, the corpus delecti rule does not apply to proof of
the underlying felony for purposes of felony murder or the robbery-murder special
circumstance. (§ 190.41; see People v. Ray, supra, 13 Cal.4th at p. 341, fn. 13.)
Premised on the claim there was insufficient evidence of a robbery felony
murder, defendant argues that the trial court incorrectly instructed on first degree
felony murder. Because his premise lacks merit, his dependent argument fails.
showing ‘ “that a defendant’s true intent and purpose were concealed by his
actions or conduct. It is not required that he be literally concealed from view
before he attacks the victim.” ’ ” [Citation.]’ (People v. Carpenter (1997) 15
Cal.4th 312, 388 [63 Cal.Rptr.2d 1, 935 P.2d 708].)” (People v. Hillhouse, supra,
27 Cal.4th at p. 500.)
The evidence amply supports the lying-in-wait special-circumstance
finding. To carry out his plan to rob and kill Janine, defendant devised a ruse
about needing a ride to a campsite in Odessa Canyon to meet a fictitious friend,
John. Using this ruse, he tricked Janine into giving him a ride. As Janine drove
defendant and Purcell to the desert, defendant sat in the backseat behind Janine
with both cords that he had obtained earlier, waiting for an opportune time to
strangle her. When they reached the canyon, defendant saw a trailer and
pretended that it belonged to John. Although they started walking towards the
trailer, they returned to the car and drove to the trailer after defendant saw that a
road led to it. As Janine drove to the trailer, defendant, who was again seated in
the backseat behind her, removed the electrical cord from his pocket and wrapped
it around his wrists. After Janine parked the car, defendant—from his position of
advantage—surprised her by placing the electrical cord over her head and
strangling her. Substantial evidence supports the jury’s finding.7 (People v.
Domino v. Superior Court (1982) 129 Cal.App.3d 1000,
defendant argues that the evidence was insufficient to support the special
circumstance allegation because the “temporal relationship” between the killing
and the lying in wait was “disrupted.” Domino stated, “the killing must take place
during the period of concealment and watchful waiting or the lethal acts must
begin at and flow continuously from the moment the concealment and watchful
waiting ends. If a cognizable interruption separates the period of lying in wait
from the period during which the killing takes place, the circumstances calling for
the ultimate penalty do not exist.” (Id. at p. 1011.) As was the case in People v.
Morales (1989) 48 Cal.3d 527, 558: “We need not consider the validity of
(Footnote continued on next page.)
Morales, supra, 48 Cal.3d at p. 555 [sufficient evidence of lying in wait where
defendant sat behind victim in car, waited until car was in more deserted location,
and then strangled and bludgeoned her].)
4. Alleged Prosecutorial Misconduct
During closing argument, the prosecutor stated: “I want you to focus on
why [Dr.] Crinella was here. Crinella was here for a limited purpose. There’s an
instruction to tell you about it. That limited purpose is if because of [defendant’s]
mental disease, defect, etcetera, it impaired him in such a way that he couldn’t
form the specific intent or mental states required for these crimes, then he’s not
guilty, he walks. That’s what we have. If, based on Dr. Crinella’s testimony, you
believe that he couldn’t form the intent to rob somebody, he’s not guilty.”
Focusing on the last sentence above, defendant argues that the prosecutor
incorrectly told the jury that, if they believed the defense evidence as it relates to
first degree felony murder, the only option would be to set him free without
considering how the evidence related to other crimes. Defendant contends that
this misstatement of the law constituted prosecutorial misconduct, violating his
right to due process. However, defense counsel did not object to the challenged
(Footnote continued from previous page.)
Domino’s restrictive interpretation of the special circumstance provision [citation],
because the evidence in this case clearly would support a finding that defendant’s
lethal acts flowed continuously from the moment he commenced his surprise
attack.” Here, there was one continuous lying-in-wait period during which
defendant surprised and killed Janine. (People v. Hillhouse, supra, 27 Cal.4th at
p. 501 [“ ‘[a]s long as the murder is immediately preceded by lying in wait, the
defendant need not strike at the first available opportunity, but may wait to
maximize his position of advantage before taking his victim by surprise.’
statement or request an admonition. Because an objection and admonition could
have cured any harm, the contention is not cognizable on appeal. (People v.
Maury, supra, 30 Cal.4th at p. 418.)
In any event, we would not be required to reverse defendant’s conviction
on the alleged basis. Viewing the prosecutor’s comments in the context of the
argument as a whole, we do not find it reasonably likely that the jury would have
construed or applied the complained-of remarks in an objectionable manner.
(People v. Samayoa (1997) 15 Cal.4th 795, 841.)
First, defendant reads too much into the prosecutor’s comment.
Immediately before that comment, the prosecutor correctly stated that if the jury
believed any mental disease or defect “impaired him in such a way that he
couldn’t form the specific intent or mental states required for these crimes, then
he’s not guilty, he walks.” The trial court instructed on the theories of first degree
premeditated murder, first degree felony murder with robbery as the underlying
felony, and the lesser included offenses of second degree murder based on either
express or implied malice. All of these offenses are specific intent crimes and,
with the exception of felony murder and robbery, require malice aforethought.
(See CALJIC Nos. 8.10, 8.11, 8.20, 8.21, 8.30, 8.31, 9.40.)
The trial court further instructed the jury that it could consider the evidence
regarding mental disease, mental defect, or mental disorder in determining
whether defendant had the required mental states for both first and second degree
murder (CALJIC No. 3.32). “In a murder case, if this evidence is believed, the
only supportable verdict would be involuntary manslaughter or an acquittal.”
(People v. Saille (1991) 54 Cal.3d 1103, 1117.) Involuntary manslaughter was not
an option in this case. Thus, the prosecutor correctly related that defendant would
be entitled to an acquittal if the jury believed defendant had not formed the
specific intent or mental states necessary to commit the crimes. The further
comment—“If, based on Dr. Crinella’s testimony, you believe that he couldn’t
form the intent to rob somebody, he’s not guilty”—was not inaccurate; in that
case, defendant would not have been guilty of first degree felony murder.
Second, if the jury had had any doubt as to the meaning of the challenged
comment, the remaining arguments clarified it. In his closing argument, defense
counsel told the jury it could consider Dr. Crinella’s testimony in determining
whether defendant “actually formed the required specific intent, premeditated,
deliberated, or harbored malice aforethought.” Counsel further argued:
“[The prosecutor] I believe was suggesting to you—and I may have
misunderstood, I’ll certainly yield to your understanding—that if you adopted this
interpretation, [defendant] would walk right out the door. And I dispute that. No
one is suggesting that in the least. And no one is suggesting that that is going to
“But when it comes to weighing the evidence, which we don’t dispute it, in
weighing the history, the diagnosis, regarding [defendant’s] mental defects, mental
diseases, those are certainly things you should consider in determining whether
this offense was of the first or of the second degree.”
In his rebuttal argument, the prosecutor clarified that second degree murder
required that defendant form the mental state of malice aforethought and that
defendant could “walk” if the jury found that his alleged mental illness or defect
precluded him from harboring malice. Thus, the prosecutor only argued that
defendant would walk if the jury concluded he did not form the mental states
necessary for both first and second degree murder. Contrary to defendant’s claim,
there is no reasonable likelihood that the jury construed the prosecutor’s remarks
to mean that “they had no choice but to convict [defendant] of first degree murder
or else he would be ‘set free.’ ”
5. Instructional Issues
a. Failure to Instruct on Theft as a Lesser Included Offense of
Defendant contends that the trial court erred in failing to instruct the jury
sua sponte on theft as a lesser included offense of robbery. Although theft is a
lesser included offense of robbery (People v. Turner (1990) 50 Cal.3d 668, 690),
defendant was not charged with robbery. Accordingly, the trial court did not have
a sua sponte duty to instruct the jury on theft as a lesser included offense, because
the robbery formed the basis for the felony-murder charge and the special
circumstance allegation. (People v. Cash (2002) 28 Cal.4th 703, 737; People v.
Silva, supra, 25 Cal.4th at p. 371.)
In any event, because there was no evidence that defendant abandoned the
intent to steal and killed Janine for a reason independent of theft, the trial court
would not have had to instruct sua sponte on theft even if robbery had been
charged. (See People v. Sakarias (2000) 22 Cal.4th 596, 620 [no sua sponte duty
to instruct on theft; neither defendant’s statements or actions showed he
abandoned intent to steal].)
b. CALJIC No. 8.11
The trial court instructed the jury on the definitions of express and implied
malice (CALJIC No. 8.11).8 Defendant claims that the court violated his right to
The trial court defined express and implied malice as follows:
“Malice may be either express or implied. Malice is express when there is
manifested an intention unlawfully to kill a human being. Malice is implied when:
“1. The killing resulted from an intentional act;
“2. The natural consequences of the act are dangerous to human life; and
“3. The act was deliberately performed with knowledge of the danger to,
and with conscious disregard for, human life.”
due process by giving the implied malice instruction because it permitted the jury
to find him guilty of first degree murder based on implied malice. He is wrong.
In addition to instructing on the first degree murder theories of deliberate,
premeditated murder and felony murder, the trial court instructed on the lesser
included offenses of second degree murder based on express and implied malice.
In regard to the implied malice second degree murder offense, the court gave
CALJIC No. 8.31, which stated: “Murder of the second degree is also the
unlawful killing of a human being when: [¶] 1. The killing resulted from an
intentional act; [¶] 2. The natural consequences of the act are dangerous to human
life; and [¶] 3. The act was deliberately performed with knowledge of the danger
to, and with conscious disregard for, human life. [¶] When the killing is the direct
result of such an act, it is not necessary to establish that the defendant intended
that his act would result in the death of a human being.” Because the definition of
second degree murder, as given in CALJIC No. 8.31, included the element of
implied malice, as defined in CALJIC No. 8.11, the jury was informed that the
implied malice instruction applied to the offense of second degree murder.
On the other hand, the trial court instructed that first degree premeditated
murder required a “willful, deliberate and premeditated killing with express
malice.” (CALJIC No. 8.20.) The instruction continued to emphasize the intent to
kill requirement. The court then instructed that first degree felony murder
required only a specific intent to commit the underlying felony of robbery and that
the unlawful killing could be unintentional or accidental. (CALJIC No. 8.21.)
Thus, the instructions as a whole clearly conveyed to the jury that implied malice
did not apply to either first degree deliberate, premeditated murder or to felony
murder. (People v. Cain (1995) 10 Cal.4th 1, 36.)
Finally, the verdicts revealed that the instructions did not mislead the jury.
In finding the lying-in-wait special-circumstance allegation true, the jury found
that defendant intentionally killed the victim. It thus necessarily found express,
not implied, malice. In finding the robbery-felony-murder special-circumstance
allegation true, the jury found that defendant murdered the victim while engaged
in the commission of robbery. Thus, there was no reasonable likelihood that the
jury misunderstood the instructions as a whole. (People v. Cain, supra, 10 Cal.4th
at p. 36.)
B. Penalty Phase Issues
1. Admissibility of Unadjudicated Acts of Misconduct and Prior
Juvenile Adjudications for Robbery
Defendant claims that: (1) admission of unadjudicated acts of misconduct
in jail was improper factor (b) evidence (§ 190.3, factor (b)) and (2) admission of
his prior juvenile adjudications for robbery was improper factor (c) evidence
(§ 190.3, factor (c)). He is wrong.
A. Evidence of Defendant’s Possession of Sharpened
Instruments in Jail.
During the penalty phase, the prosecution introduced evidence that, while
in custody in county jail on this case, on three separate occasions defendant
possessed weapons and used them to threaten deputies. To prove the three jail
incidents, the prosecutor presented the testimony of jail personnel.
During the first jail incident, on February 19, 1992, defendant was yelling
angrily and hitting the cell door with his head, feet, and fists. He produced two
homemade knives, known as “shanks.” One was seven inches long and made of
metal, while the other one was made from a toothbrush with an attached razor
blade. As the deputies stood outside the cell, defendant took a defensive stance.
While he made waving and jabbing motions with the shanks, defendant dared the
deputies, “Which one do you want? Come on in and get it.” After the deputies
called for a stun gun, defendant superficially cut his wrist with the toothbrush
shank. Defendant pointed the other shank towards his eye and asked, “Do you
want to see me do it?” When the deputies failed to respond, defendant stabbed
himself in the elbow area.
During the second jail incident, on August 13, 1992, defendant refused to
go to court for a scheduled appearance. He had barricaded himself in his cell by
placing a mattress, trash can, and other items against the bars and had dumped
water on the floor to make it slippery. Defendant wore a “Rambo-type” outfit; he
had wrapped torn pieces of a sheet around his arms, apparently to protect himself
from stun guns. He held a razor blade in his mouth, while another hung from his
clothes. A sharpened broom handle was inside the cell. Defendant’s face was
smeared with blood, in the manner of war paint. Defendant told the deputies that
he would fight them if they came inside and tried to take him to court.
When one of the deputies tried to calm him, defendant took the razor blade
from his mouth and began cutting his knuckles. He punched his hands against
each other and made karate-like gestures. A sergeant was called to the cell.
Defendant reiterated that he was not going to court, that the deputies would have
to come in and get him, and that if they did, there would be a fight. To defuse the
situation, the sergeant assured defendant he was not going to court because he
needed medical treatment for his knuckles. Defendant continued to challenge the
sergeant to fight. Eventually, the sergeant convinced defendant he was not going
to court; defendant then surrendered without incident.
During the third incident, on December 8, 1992, defendant threatened
deputies again with homemade weapons. The incident began after the jail
psychiatrist issued a removal order, to remove defendant from UB (unusual
behavior) status and return him to the general jail population. The psychiatrist
believed that defendant was malingering by faking psychoactive behavior.
To prevent the deputies from transporting him, defendant blocked off the
stairway to the upper cells by wrapping torn bed sheets across the railing. Again
wearing a Rambo-type outfit and with blood smeared on his face like war paint,
defendant held a razor blade shank and a mace-like weapon made of hard soap
wrapped inside strips of a bed sheet. Swinging the mace-like weapon around and
making stabbing motions with the shank, defendant stood in an aggressive stance,
dared the deputies to come in and get him, and said he was trained in the martial
arts and would hurt anyone who came into the area. He refused to be moved to
the general jail population. When more deputies arrived, the situation escalated,
with defendant continuing to threaten them. Defendant finally surrendered his
weapons after the deputies agreed to let him remain in the UB unit for the night
while they evaluated his situation.
B. Evidence of Prior Juvenile Adjudications for Robbery
At the penalty phase, the prosecution introduced evidence that, when
defendant was a juvenile, he had committed two separate armed robberies on
February 3 and February 9, 1984. To prove the February 3 robbery, the
prosecutor presented the victim’s testimony and certified juvenile court records
showing defendant’s admission to the crime. To prove the February 9 robbery, the
prosecutor presented only the certified juvenile court records showing the facts of
the case and defendant’s admission to the crime. The victim had since died.
Section 190.3, factor (b), permits the penalty phase jury to consider “[t]he
presence or absence of criminal activity by the defendant which involved the use
or attempted use of force or violence or the express or implied threat to use force
or violence.” “ ‘Evidence of prior criminal behavior is relevant under section
190.3, factor (b) if it shows “ ‘conduct that demonstrates the commission of an
actual crime, specifically, the violation of a penal statute . . . . ’ [Citations.]”
(People v. Hughes, supra, 27 Cal.4th at p. 382.)
On appeal, defendant argues that admission of the unadjudicated jail
activity was improper section 190.3, factor (b) evidence because there was no
showing of violence—except against himself—and his behavior did not constitute
a crime. The trial court correctly concluded otherwise. At an Evidence Code
section 402 hearing before the beginning of the penalty phase, the prosecutor
presented testimony regarding the three jail incidents. Defendant made the same
argument that he makes now. The prosecutor countered that possession of deadly
weapons in jail, coupled with threats of force or violence, was clearly criminal
activity under section 190.3, factor (b). The court overruled defendant’s objection.
It found that the evidence showed that defendant possessed weapons in jail and
threatened to use force or violence against the deputies to get what he wanted and
that his conduct qualified as violent criminal activity under section 190.3, factor
(b). The court further found that the probative value of the evidence outweighed
the prejudicial effect under Evidence Code section 352. Accordingly, after closing
argument, the court instructed on the elements of unlawful possession of a deadly
weapon in jail, pursuant to section 4574.9
The trial court’s ruling was clearly correct. (See People v. Hughes, supra,
27 Cal.4th at pp. 382-383 [possession of shank in jail violated section 4574,
qualifying as implied threat of violence under section 190.3, factor (b)]; People v.
Tuilaepa, supra, 4 Cal.4th at pp. 588-589 [possession of razor blades in CYA;
same]; see also People v. Kipp, supra, 26 Cal.4th at pp. 1133-1134 [verbal threats
Section 4574, subdivision (a), provides in relevant part, that “any person
who, while lawfully confined in a jail . . . possesses therein any . . . deadly
weapon, . . . is guilty of a felony.”
against deputy sheriff relevant to violent potential of defendant’s criminal
Defendant further argues that admission of the docket sheet to prove the
fact of the juvenile adjudication for the February 9, 1984, robbery was improper
section 190.3, factor (c) evidence. As the Attorney General points out, the trial
court admitted the evidence under section 190.3, factor (b), not (c).10 Although
evidence of violent juvenile adjudications are not admissible under section 190.3,
factor (c), such evidence is admissible under factor (b). (People v. Hayes (1990)
52 Cal.3d 577, 632-633; People v. Lucky (1988) 45 Cal.3d 259, 294-295.)
People v. Champion (1995) 9 Cal.4th 879, 937, defendant
suggests that admission of juvenile court records to establish the fact of the
juvenile adjudication is inadmissible section 190.3, factor (b) evidence. However,
since Champion, we have found that the fact of an adjudication or conviction is
admissible to establish “criminal activity” under section 190.3, factor (b). (People
v. Scott (1997) 15 Cal.4th 1188, 1222-1223; People v. Jackson (1996) 13 Cal.4th
1164, 1234; People v. Ray, supra,13 Cal.4th 313, 367-369 & fn. 2 (conc. opn. of
In any event, any error was harmless. The jury was presented with properly
admitted evidence in aggravation that showed a pattern of nonconforming and
violent behavior: the circumstances of the crime evidencing a deliberate,
premeditated murder of an acquaintance for money in a brutal, cold-blooded, and
devious manner; the circumstances of the February 3, 1984, juvenile robbery; the
three incidents involving possession of dangerous weapons in jail; and four prior
At trial, defendant argued that the prosecutor could use only live testimony,
not certified copies of court records, to prove violent criminal conduct under
section 190.3, factor (b). The trial court ruled otherwise.
felony convictions. There is no reasonable possibility the penalty verdict would
have been different absent evidence of the February 9, 1984, robbery. (People v.
Tuilaepa, supra, 4 Cal.4th at p. 591.)
2. Issues Relating to Dr. Oshrin
Production of Dr. Oshrin’s Report
During the early stages of the criminal proceeding and at defense counsel’s
request, Dr. Oshrin, a psychiatrist, performed a psychiatric examination of
defendant. In addition to reviewing defendant’s record, Dr. Oshrin interviewed
defendant on November 23, 1990. He then produced a report, dated November
24, 1990, which he gave to defense counsel.
The prosecutor moved for discovery of defense materials relating to the
penalty phase, pursuant to section 1054.3. The trial court granted the discovery
motion. Defendant contends that the trial court’s discovery order was improper
because it required him to divulge information about witnesses whom the defense
did not intend to call at trial. Specifically, he complains that, even though he did
not intend to call Dr. Oshrin as a witness during the penalty phase, the discovery
order improperly allowed the prosecution access to Dr. Oshrin’s report containing
privileged defense information. He alleges that the prosecution’s obtaining that
report violated the attorney work-product doctrine, his attorney-client and
psychotherapist-patient privileges, and his privilege against self-incrimination.
However, no factual basis supports defendant’s claim.
First, contrary to defendant’s assertion, the discovery order did not require
the defense to produce any information about witnesses whom the defense did not
intend to call at trial. The prosecution requested: (1) “the names and addresses of
persons, other than the defendant, who[m] counsel or defendant intends to call as
witnesses at trial”; (2) “any relevant written or recorded statements of [those]
persons . . . and/or reports of the statements of such persons, or videotapes”; and
(3) “any reports or statements of experts made in connection with this case,
including, but not limited to, the results of physical or mental examinations,
scientific tests, experiments, or comparisons which the defendant or counsel intend
to offer as evidence at the trial of this case.”11
Defense counsel represented that the defense had not yet decided which
expert witnesses it planned to call during the penalty phase. The trial court
granted the prosecution’s motion with the express caveat that the defense need not
reveal the identity of and information about any medical expert until it had
actually decided to call the particular witness. The court stated that the defense
could reveal the identity of its expert witness on the very morning it planned to
call the expert, but if that occurred, the prosecution would be entitled to a
continuance. Thus, the record does not support defendant’s claim that the “court
made a blanket discovery order that included all expert reports.”
Second, contrary to defendant’s assertion, the prosecution’s acquisition of
Dr. Oshrin’s report did not “result” from the discovery order. In other words, the
prosecution did not obtain the report through the enforcement of the discovery
order. Instead, defendant voluntarily produced Dr. Oshrin’s report during the
recess between the direct and cross-examinations of Dr. Crinella at the guilt phase.
During direct examination, Dr. Crinella testified that he had considered various
reports, including Dr. Oshrin’s November 24, 1990, report, in evaluating
defendant and forming his opinions regarding defendant’s mental state.
Apparently, up until that point, the prosecutor had been unaware of Dr. Oshrin’s
The prosecution’s discovery motion essentially tracked the language of
evaluation or report. During the recess, defense counsel provided the prosecutor a
copy of Dr. Oshrin’s full report. Without objection, the prosecutor used the report
to cross-examine Dr. Crinella. During cross-examination, Dr. Crinella
acknowledged that, although he had concluded that defendant showed signs of
brain damage, schizophrenia, and a borderline personality disorder, Dr. Oshrin had
reached a different diagnosis. Dr. Oshrin did not find that defendant suffered from
any organic problems, but instead concluded that he probably had an antisocial
personality disorder. Dr. Crinella conceded that defendant’s history was
consistent with that disorder.
We presume that defense counsel provided Dr. Oshrin’s report because he
knew that the prosecutor was entitled to cross-examine Dr. Crinella about its
contents. (See Evid. Code, §§ 721, subd. (a), 1016, subd. (a); People v. Coleman
(1989) 48 Cal.3d 112, 151; People v. Milner (1988) 45 Cal.3d 227, 241 [attorney-
client privilege and work-product doctrine inapplicable to matters relied on or
considered in the formation of defense expert witness’s opinion]; People v.
Campos (1995) 32 Cal.App.4th 304, 308; Woods v. Superior Court (1994) 25
Cal.App.4th 178, 186.) In any event, by voluntarily turning over the report and
failing to object to the prosecutor’s using it during cross-examination, defendant
waived any claim that the production and use of the report violated the attorney-
work product doctrine, the attorney-client and psychotherapist-patient privileges,
and the privilege against self-incrimination. (Evid. Code, § 912; People v. Poulin
(1972) 27 Cal.App.3d 54, 64.)
In sum, the trial court did not order the disclosure of the names and reports
of all experts who had been retained by defendant, regardless of their status as
intended witnesses, nor did the discovery order require the defense to give the
prosecution Dr. Oshrin’s report. Thus, defendant’s claim of error must fail.
Dr. Oshrin—Prosecution Rebuttal Witness
During the penalty phase, the defense called Drs. Crinella and Fischer as
expert witnesses and marked Dr. Oshrin’s report as an exhibit for identification.
Both doctors testified that they had read and considered Dr. Oshrin’s full report
and had relied on portions of it in forming their opinions. Dr. Crinella discussed
and disclosed significant portions of Dr. Oshrin’s report during his testimony,
including some of defendant’s statements to Dr. Oshrin. Dr. Crinella also read
two paragraphs of the report into the record, and defense counsel provided the jury
with copies of those two paragraphs during the doctor’s direct examination.
Defense counsel marked the full report as an exhibit for identification. Without
objection, the prosecutor used the full report in cross-examining both doctors.
Over defendant’s objection, the trial court later permitted the prosecutor to
call Dr. Oshrin as a rebuttal witness. After both parties rested, the trial court, on
defendant’s motion, admitted Dr. Oshrin’s full report into evidence.
Defendant claims that the trial court, in allowing the prosecutor to call Dr.
Oshrin as a rebuttal witness, violated his attorney-client and work-product
privileges and his United States Constitution Fifth Amendment privilege against
self-incrimination. Defendant argues that the substantive content of Dr. Oshrin’s
report, including the communications between him and the doctor, was privileged
information that could only be waived if the defense called Dr. Oshrin as a
witness. At most, the prosecutor could cross-examine Dr. Crinella only on the
parts of the report on which he relied in forming his opinions, and with which he
presumably agreed. We reject the claim.
Defendant has forfeited his appellate claim because he asserted only his
psychotherapist-patient privilege at trial. Defendant objected to Dr. Oshrin’s
testimony on the ground that the court had appointed the doctor as a confidential
mental health expert to advise defense counsel on possible mental defenses under
Evidence Code section 1017.12 The prosecutor argued that Drs. Crinella and
Fischer had used Dr. Oshrin’s report in forming their opinions and that defendant,
by placing his mental state in issue at the guilt and penalty phases of trial, had
waived his psychotherapist-patient privilege. Defense counsel responded that
placing defendant’s mental state in issue did not waive “the confidentiality
accorded to appointments under Evidence Code section 1017.” Counsel
contended that, although the experts had read and considered Dr. Oshrin’s full
report, they only adopted and relied on two paragraphs, which had been read to the
jury; thus, defendant had only waived confidentiality as to those two paragraphs.
The trial court allowed the prosecutor to call Dr. Oshrin as a rebuttal
witness. It ruled that, because defendant placed his mental or emotional condition
in issue, and because several defense mental health experts considered or relied on
Dr. Oshrin’s report, defendant had waived his section 1017 psychotherapist–
patient privilege under Evidence Code section 912. Thus, defendant cannot
belatedly claim on appeal that the trial court’s ruling violated his attorney-client,
or Fifth Amendment privileges or the attorney work-product doctrine. (Evid.
Code, § 912, subd. (a); People v. Clark (1990) 50 Cal.3d 583, 626; Woods v.
Superior Court, supra, 25 Cal.App.4th at p. 187; People v. Poulin, supra, 27
Cal.App.3d at p. 64.)
As relevant here, Evidence Code section 1017, subdivision (a), provides
that: “There is no privilege under this article if the psychotherapist is appointed
by order of a court to examine the patient, but this exception does not apply where
the psychotherapist is appointed by order of the court upon the request of the
lawyer for the defendant in a criminal proceeding in order to provide the lawyer
with information needed so that he or she may advise the defendant whether to
enter or withdraw a plea based on insanity or to present a defense based on his or
her mental or emotional condition.”
In any event, defendant’s claim lacks merit. Defendant waived any
protections that the attorney-client privilege, the attorney work-product doctrine,
and the privilege against self-incrimination afforded him regarding all matters that
Drs. Crinella and Fischer considered or on which they relied, including Dr.
Oshrin’s report. (See People v. Coleman, supra, 48 Cal.3d at pp. 151-152; People
v. Milner, supra, 45 Cal.3d at p. 241; see also Evid. Code, §§ 721, subd. (a), 912,
subd. (a).) Moreover, by placing his mental state in issue, defendant waived his
psychotherapist-patient privilege (which he concedes he waived) and his privilege
against self-incrimination. (People v. Clark, supra, 5 Cal.4th at pp. 1005, 1007-
1008; People v. Montiel (1993) 5 Cal.4th 877, 923.) Because defendant had
waived these privileges in regard to Dr. Oshrin’s report, the prosecutor was free to
call Dr. Oshrin as a rebuttal witness and to question him about that report. (Evid.
Code, § 804, subd. (a); Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851,
862, disapproved on other grounds in People v. Ault (2004) 33 Cal. 4th 1250,
1272, fn. 15 [when expert testifies that opinion based in whole or in part on
another’s opinions, other person may be called as rebuttal witness].) Accordingly,
the trial court did not err in permitting Dr. Oshrin to testify as a prosecution
3. Testimony of Defendant’s Former Attorney
Deputy Public Defender John Sullivan represented defendant in the 1990
check forgery case. Over defendant’s objection, the trial court permitted Sullivan
to testify for the prosecution. Defendant claims that Sullivan’s testimony violated
his attorney-client privilege. He is wrong.
During the guilt phase of trial, the prosecutor informed the court that he
wished to call Sullivan to testify that on October 23, 1990—the day before
Janine’s murder—he requested a two-week continuance in the check forgery case
because defendant had retained a private attorney. The prosecutor theorized that
defendant asked for the continuance, having already planned to rob and kill Janine
and then leave town. Defense counsel objected on the ground that the attorney-
client privilege protected communications between defendant and Sullivan and
that other witnesses, such as the clerk or court reporter, could certify the transcript
as a public record. When the court asked if defendant’s main objection was based
on the attorney-client privilege, defense counsel replied, “The privilege other than
what is on the record.” Counsel further asserted that “the transcript, if properly
authenticated, is indeed the best evidence here.”
When questioned by the trial court, Sullivan asserted that he would testify
only about what he had said in court. He stated that, “anything other than what I
said in court I would assert the privilege to the court. In other words, if further
inquiry as to what information that I had received, I would have to assert the
privilege as confidential communication.” When asked if defendant still objected,
defense counsel stated, “Yes. I believe the proper foundation of witnesses is the
court reporter.” The trial court overruled defendant’s objection, finding that the
proferred evidence “can be proved several ways.” It further ruled that Sullivan
could only testify about “what happened in open court on October 23, 1990, that’s
contained in Exhibit 7 [transcript of proceedings].”
Sullivan authenticated the hearing transcript and testified only as to matters
within it. He stated that he appeared on October 23, 1990, as defendant’s attorney
in a check forgery case to set the date for the preliminary hearing, that he
requested a two-week continuance “for a new lawyer to take over the case,” and
that defendant himself told the judge that he had hired another attorney.
As is evident from the above proceedings, Sullivan did not testify about any
confidential communications between him and defendant. (See Evid. Code,
§§ 952, 954 [attorney-client privilege pertains to a “confidential communication
between client and lawyer”].) “Because this information was of public record no
confidential information was elicited by the prosecution which violated the
attorney-client privilege.” (People v. Gillard (1997) 57 Cal.App.4th 136, 162.)
Accordingly, we reject defendant’s claim that his attorney-client privilege was
4. Alleged Prosecutorial Misconduct
Defendant claims that the prosecutor committed misconduct and violated
his Fifth and Fourteenth Amendment rights under the United States Constitution
in claiming during the penalty phase closing argument that the jury could consider
his lack of remorse for Janine’s killing. We reject this argument.
Over defendant’s objection, the prosecutor argued the following:
“Another thing you can think about and you can consider, if you haven’t
already, is whether or not the defendant has shown any remorse. And by that I
mean in the crime area.
“What do we have? November 2nd he’s arrested, he’s interviewed on tape.
You heard the tape. I pulled it out. If you want to listen to it, you listen to it. Ten,
twelve days after the murder. On that tape does he show any signs of remorse for
the brutal murder? No. You listen to the tape. Things are said.
“ ‘How do you feel now that it’s over?’
“ ‘I don’t know what you mean. It wasn’t worth it just for the car.’
“The discussion about money and, ‘What’s a human life worth to you?’
His response—and I can still remember that—‘Janine? 5-to-10,000.’ Janine, 5-to-
10,000. Sort of like squashing a cockroach. Didn’t mean a thing. Only thing he’s
upset about is he didn’t get any money.”
No misconduct or constitutional error occurred. “ ‘[R]emorse is universally
deemed a factor relevant to penalty. The jury, applying its common sense and life
experience, is likely to consider that issue in the exercise of its broad constitutional
sentencing discretion no matter what it is told.’ [Citation.]” (People v. Bemore
(2000) 22 Cal.4th 809, 854-855.) “A prosecutor may properly comment on a
defendant’s lack of remorse, as relevant to the question of whether remorse is
present as a mitigating circumstance, so long as the prosecutor does not suggest
that lack of remorse is an aggravating factor. [Citations.]” (People v. Mendoza
(2000) 24 Cal.4th 130, 187.)
Defendant concedes that the prosecutor did not state that the jury could
consider his lack of remorse as an aggravating factor. However, he argues that the
prosecutor’s statements after commenting about his lack of remorse “suggested”
that it was an aggravating circumstance. To the contrary, the prosecutor never
suggested that the jury should consider defendant’s lack of remorse as an
aggravating circumstance. He simply reminded the jury that Janine had been
brutally murdered and argued that, when the jury considered all the evidence,
aggravating evidence so substantially outweighed mitigating evidence that the jury
could reach only one verdict—death.
Nor did the prosecutor’s remarks call attention, either directly or indirectly,
to defendant’s failure to testify or to his prearrest silence in circumstances in
which it might implicate his exercise of the privilege against self-incrimination.
(People v. Williams (1988) 44 Cal.3d 883, 966 [comment on lack of remorse
during confession invaded no constitutional right or privilege]; see also People v.
Holt (1997) 15 Cal.4th 619, 691 [comment on lack of remorse not improper; it
was “clearly directed to the opportunities defendant had to express remorse in his
statement to the police”].) We likewise reject defendant’s federal due process
claim. (See People v. Frye (1998) 18 Cal.4th 894, 1021.)
5. Challenges to the Death Penalty Law
Defendant challenges California’s death penalty law for reasons previously
rejected by this court in other cases. He raises no basis for reconsideration of
Specifically, the jury need not make written findings and reasons for the
jury’s death verdict, achieve unanimity as to specific aggravating circumstances,
or find beyond a reasonable doubt (1) that the aggravating circumstances outweigh
mitigating circumstances or (2) that death is the appropriate penalty. (People v.
Maury, supra, 30 Cal.4th at p. 440; People v. Hillhouse, supra, 27 Cal.4th at p.
510.) The trial court did not err: (1) in failing to identify which factors are
aggravating and which are mitigating; (2) in failing to delete allegedly
inapplicable mitigating factors of section 190.3 from the standard instructions, if
the jury, as here, was properly instructed to consider and be guided by all factors
“if applicable,” because we assume it properly followed the instruction and
concluded that mitigating factors not supported by evidence were simply not
applicable; or (3) in using the word “extreme” in section 190.3, factor (d). (People
v. Maury, supra, 30 Cal.4th at p. 439-440, 443-444; People v. Hughes, supra, 27
Cal.4th at pp. 404-405; People v. Welch (1999) 20 Cal.4th 701, 768-769, 772-773;
People v. Cooper (1991) 53 Cal.3d 771, 843.) Because the jury was instructed on
miscellaneous sympathy evidence under section 190.3, factor (k), “[t]he temporal
language in section 190.3, factors (d) and (h) (consideration of any extreme mental
or emotional disturbance or impairment from mental disease or defect or the
effects of intoxication at the time of the offense), [does] not preclude the jury from
considering any such evidence merely because it did not relate specifically to
defendant’s culpability for the crimes committed.”13 (People v. Hughes, supra, at
p. 405, fn. 33.)
The trial court need not instruct the jury that there is a “presumption of
life.” (People v. Kipp, supra, 26 Cal.4th at p. 1137; People v. Carpenter (1999)
21 Cal.4th 1016, 1064.) Because of the individual and normative nature of the
jury’s sentencing determination, the trial court need not instruct that the
prosecution has the burden of persuasion on the issue of penalty. (People v. Kipp,
supra, 26 Cal.4th at p. 1137; People v. Bemore, supra, 22 Cal.4th at p. 859.)
Prosecutorial discretion in deciding whether to seek the death penalty does not
render the law unconstitutional. (People v. Steele, supra, 27 Cal.4th at p. 1269.)
Intercase proportionality review is not required. (People v. Lewis (2001) 26
Cal.4th 334, 394-395; People v. Riel, supra, 22 Cal.4th at p. 1223.) The lying-in-
wait special circumstance adequately distinguishes between first degree murders
that are death eligible and those that are not. (People v. Hillhouse, supra, 27
Cal.4th at p. 510; People v. Carpenter, supra, 15 Cal.4th at p. 419.) Finally, the
death penalty law adequately narrows the class of death-eligible defendants.
(People v. Burgener (2003) 29 Cal.4th 833, 884 & fn. 7; People v. Frye, supra, 18
Cal.4th at pp. 1028-1029.) We reject defendant’s remaining challenges to the
death penalty law. (See People v. Laursen (1972) 8 Cal.3d 192, 205.)
Without citation to the record, defendant claims that counsel’s arguments
did not permit the jury to conclude nonextreme or emotional disturbances could be
considered mitigating evidence under factor (k). To the contrary, the prosecutor
expressly argued that if the jury did not find that factor (d) applied, it could
consider under section 190.3, factor (k) all of the evidence the defense
psychiatrists and psychologists presented.
6. Cumulative Prejudice in Guilt and Penalty Phases
Defendant concludes his challenge to the penalty judgment by asserting
that the cumulative effect of the errors he raises mandates reversal. Our review of
the record leads us to a different conclusion. No reasonable possibility exists that
the sentencing jury would have reached a different result absent any of the claimed
We affirm the judgment in its entirety.
CONCURRING OPINION BY KENNARD, J.
I agree with the majority, except for its summary rejection of defendant’s
claim that the lying-in-wait special circumstance (Pen. Code, § 190.2, subd.
(a)(15)) does not adequately distinguish between cases in which the death penalty
is appropriate and those in which it is not, a function required by the Eighth
Amendment to the federal Constitution. (Maj. opn., ante, at p. 58.) In previous
decisions, I have expressed a “growing concern” that in expansively construing
the scope of the lying-in-wait special circumstance, this court’s decisions “may
have undermined the critical narrowing function of the lying-in-wait special
circumstance: to separate defendants whose acts warrant the death penalty from
those defendants who are ‘merely’ guilty of first degree murder.” (People v. Ceja
(1993) 4 Cal.4th 1134, 1147 (conc. opn. of Kennard, J.); see also People
v. Hillhouse (2002) 27 Cal.4th 469, 512 (conc. opn. of Kennard, J.).) Recently, a
federal circuit judge concluded, albeit in dissent, that California’s lying-in-wait
special circumstance is so broad that it violates the Eighth Amendment. (Morales
v. Woodford (9th Cir. 2004) 388 F.3d 1159, 1180-1189 (conc. & dis. opn. of
I first expressed my concerns about the lying-in-wait special circumstance
11 years ago in People v. Ceja, supra, 4 Cal.4th 1134. In over 150 death penalty
cases decided by this court since then, we have seen none in which lying in wait
was the only special circumstance found true by the jury. This may well reflect a
view that lying in wait should not be the sole basis for imposing the death penalty.
Here, I need not decide whether the lying-in-wait special circumstance, as
construed by this court, violates the Eighth Amendment. For, as I explain below,
even if the trial court erred by instructing the jury on the lying-in-wait special
circumstance, the error was harmless.
The jury found true not only the special circumstance allegation that
defendant committed the murder by lying in wait, but also a special-circumstance
allegation that the murder occurred in the commission of a robbery. (Pen. Code,
§ 190.2, subd. (a)(17).) Thus, even without a lying-in-wait special circumstance,
the case would have proceeded to a penalty phase. And the lying-in-wait special
circumstance had no effect on the evidence presented at the penalty phase: The
prosecution could have presented the same aggravating evidence if that special
circumstance had not been alleged and found true.
The aggravating evidence was strong. Defendant and his girlfriend
strangled and beat to death an acquaintance so they could rob her and steal her car.
The killing was carefully planned and brutally carried out, and defendant showed
absolutely no remorse for the crime. Moreover, he had a substantial criminal
record that included four felony convictions as an adult and two juvenile
adjudications for robbery. Thus, even if the trial court had not instructed the jury
on the lying-in-wait special circumstance, I conclude, beyond a reasonable doubt,
that the jury would still have returned a verdict of death. (See Sanders v.
Woodford (9th Cir. 2004) 373 F.3d 1054, 1063 [beyond-a-reasonable-doubt
standard applies when the jury considers an invalid special circumstance at the
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Combs
Original Appeal XXX
Opinion No. S033975
Date Filed: December 16, 2004
County: San Bernardino
Judge: Rufus L. Yent
Attorneys for Appellant:
Richard C. Gilman, 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, William M. Wood, Sharon L. Rhodes and Robert M. Foster, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard C. Gilman
365 Esplanade Drive, Suite 203
Oxnard, CA, 93031
Robert M. Foster
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Sharon L. Rhodes, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Combs, Michael Steven (Appellant)|
San Quentin State Prison
Represented by Michael R. Belter
Attorney at Law
600 Playhouse Alley, Suite 402
|Dec 16 2004||Opinion: Affirmed|
|Jun 21 1993||Judgment of death|
|Jul 20 1993||Filed cert. copy of Judgement of Death Rendered|
|Aug 4 1997||Counsel appointment order filed|
Richard C. Gilman Is appointed to represent Applt on His A.A., Including Any Related Habeas Proceedings.
|Sep 24 1997||Compensation awarded counsel|
|Oct 3 1997||Counsel's status report received (confidential)|
|Nov 10 1997||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Nov 12 1997||Extension of Time application Granted|
To Applt To 1-20-98 To request Corr. of Record.
|Nov 12 1997||Filed:|
Amended Proof of Service of request for Eot.
|Dec 18 1997||Counsel's status report received (confidential)|
|Jan 12 1998||Application for Extension of Time filed|
By Applt to request Record correction
|Jan 14 1998||Extension of Time application Granted|
To Applt To March 20,1998 To request Record correction
|Feb 11 1998||Compensation awarded counsel|
|Mar 19 1998||Received:|
Copy of Applt's request to correct, Augment Record & Examine Sealed Transcripts; and motion for Preservation of Evidence Etc.
|Mar 19 1998||Counsel's status report received (confidential)|
|May 1 1998||Counsel's status report received (confidential)|
|May 5 1998||Compensation awarded counsel|
|Jul 7 1998||Counsel's status report received (confidential)|
|Sep 14 1998||Counsel's status report received (confidential)|
|Sep 30 1998||Motion filed|
By Resp for correction of the Record on Appeal Following Superior Court Augmentation of the Record. (11 Pp. Excluding attachments).
|Oct 22 1998||Opposition filed|
By Applt to motion for correction of the Record. (11 Pp.)
|Oct 23 1998||Filed:|
Resp's reply to Opposition to motion for Corr. of Record. (7 Pp. Excluding attachments).
|Nov 24 1998||Order filed:|
The People's motion to correct the record, filed 9-30-98, is granted. All records of the proceedings that occurred after 5-3-91, in the prosecution against Cynthia Purcell, San Bernardino County Superior Court No. BCR2436, Court of Appeal, Fourth Appellate District, No. E010850, are hereby ordered excluded from the record on appeal in People v. Combs (S033975). This order is without prejudice to a request for judicial notice of the records this order excludes from the appellate record in this case.
|Dec 3 1998||Counsel's status report received (confidential)|
|Jan 27 1999||Compensation awarded counsel|
|Feb 4 1999||Counsel's status report received (confidential)|
|Feb 25 1999||Record on appeal filed|
C-19 (5,160 Pp.) and R-18 (4,036 Pp.) (Including Sealed Material). Clerk's Transcript includes 3,821 pages of Juror Questionnaires.
|Feb 25 1999||Appellant's opening brief letter sent, due:|
|Mar 4 1999||Compensation awarded counsel|
|Apr 1 1999||Application for Extension of Time filed|
To file Aob.
|Apr 2 1999||Extension of Time application Granted|
To 6-7-99 To file Aob.
|Apr 9 1999||Counsel's status report received (confidential)|
|Jun 4 1999||Application for Extension of Time filed|
To file Aob.
|Jun 4 1999||Counsel's status report received (confidential)|
|Jun 10 1999||Extension of Time application Granted|
To 8-6-99 To file AOB
|Aug 9 1999||Application for Extension of Time filed|
To file Aob.
|Aug 9 1999||Counsel's status report received (confidential)|
|Aug 11 1999||Extension of Time application Granted|
To 10/5/99 To file AOB
|Oct 4 1999||Application for Extension of Time filed|
To file Aob.
|Oct 4 1999||Counsel's status report received (confidential)|
|Oct 5 1999||Extension of Time application Granted|
To 12/6/99 To file Aob.
|Dec 6 1999||Application for Extension of Time filed|
To file Aob.
|Dec 6 1999||Compensation awarded counsel|
|Dec 6 1999||Counsel's status report received (confidential)|
|Dec 13 1999||Extension of Time application Granted|
To 2/4/2000 To file Aob.
|Jan 31 2000||Application for Extension of Time filed|
To file Aob.
|Jan 31 2000||Counsel's status report received (confidential)|
|Feb 4 2000||Extension of Time application Granted|
To 4/4/2000 To file Aob.
|Mar 31 2000||Application for Extension of Time filed|
To file Aob.
|Apr 6 2000||Counsel's status report received (confidential)|
|Apr 11 2000||Extension of Time application Granted|
To 6/5/2000 To file Aob.
|May 30 2000||Counsel's status report received (confidential)|
|Jun 2 2000||Application for Extension of Time filed|
To file Aob.
|Jun 12 2000||Extension of Time application Granted|
To 8/4/2000 To Applt file Aob. no further Eot Are Contemplated.
|Jun 14 2000||Compensation awarded counsel|
|Aug 4 2000||Application for Extension of Time filed|
to file AOB. (ninth request)
|Aug 8 2000||Extension of Time application Granted|
To 10/3/2000 to file AOB. No further ext. of time are contemplated.
|Oct 4 2000||Application for Extension of Time filed|
To file AOB. (10th request)
|Oct 11 2000||Extension of Time application Granted|
To 12/4/2000 to file AOB. No further ext. of time will be granted.
|Nov 13 2000||Counsel's status report received (confidential)|
|Nov 17 2000||Compensation awarded counsel|
|Dec 6 2000||Application for Extension of Time filed|
To file AOB. and relief from default (11th request)
|Dec 6 2000||Counsel's status report received (confidential)|
|Dec 13 2000||Extension of Time application Denied|
To file AOB.
|Feb 23 2001||Counsel's status report received (confidential)|
|Mar 27 2001||Counsel's status report received (confidential)|
"interim" status report.
|Jun 5 2001||Counsel's status report received (confidential)|
|Jul 13 2001||Application for relief from default filed|
To file AOB. (148 Pp. brief submitted under separate cover on 7/10/2001)
|Jul 17 2001||Filed:|
Applt.'s appliction for relief from default to file AOB is granted.
|Jul 17 2001||Appellant's Opening Brief filed. (148 Pp.)|
|Jul 25 2001||Counsel's status report received (confidential)|
|Aug 8 2001||Application for Extension of Time filed|
To file resp.'s brief. (1st request)
|Aug 16 2001||Extension of Time application Granted|
To 10/15/2001 to file resp.'s brief.
|Aug 29 2001||Compensation awarded counsel|
|Aug 29 2001||Compensation awarded counsel|
|Oct 12 2001||Application for Extension of Time filed|
To file resp.'s brief. (2nd request)
|Oct 15 2001||Extension of Time application Granted|
To 12/14/2001 to file resp.'s brief.
|Dec 4 2001||Counsel's status report received (confidential)|
|Dec 11 2001||Request for extension of time filed|
To file resp.'s brief. (3rd request)
|Dec 14 2001||Extension of time granted|
To 2/13/2002 to file resp.'s brief. Dep. AG Rhodes anticipates filing the brief by 5/14/2002. Only two further extensions totaling 90 additional days are contemplated.
|Dec 17 2001||Counsel's status report received (confidential)|
|Jan 2 2002||Compensation awarded counsel|
|Jan 31 2002||Counsel's status report received (confidential)|
|Feb 11 2002||Request for extension of time filed|
To file resp.'s brief. (4th request)
|Feb 19 2002||Extension of time granted|
To 4/15/2002 to file resp.'s brief. Dep. AG Rhodes anticipates filing the brief by 5/14/2002. Only one further extension totaling 30 additonal days is contemplated.
|Mar 28 2002||Counsel's status report received (confidential)|
|Apr 11 2002||Request for extension of time filed|
To file resp.'s brief. (5th request)
|Apr 16 2002||Extension of time granted|
To 6/14/2002 to file resp.'s brief. Dep. Atty. General Rhodes anticipates filing the brief by 7/13/2002. Only one further extension totaling 30 additional days will be granted.
|Apr 18 2002||Supplemental record/transcript filed|
one volume of supplemental Clerk's Transcript (pursuant to Rule 35(e)). (312 pp.)
|May 13 2002||Filed:|
One page of suppl. clerk's transcript - page 28 of exh. 1C.
|May 28 2002||Counsel's status report received (confidential)|
from atty Gilman.
|Jun 11 2002||Request for extension of time filed|
to file resp's brief. (6th request)
|Jun 21 2002||Extension of time granted|
to 7-22-2002 to file resp's brief. After that date, no further extension will be granted. Extension granted based upon Deputy AG Sharon Rhodes's representation that she anticipates filing the brief by 7-22-2002.
|Jul 22 2002||Respondent's brief filed|
|Aug 6 2002||Counsel's status report received (confidential)|
|Aug 6 2002||Request for extension of time filed|
To file appellant's reply brief. (1st request)
|Aug 8 2002||Extension of time granted|
To 10/11/2002 to file appellant's reply brief. After that date, only four further extensions totaling 216 additional days are contemplated. Extension is based upon the representation of counsel Richard C. Gilman that he anticipates filing that brief by 5/15/2003.
|Oct 3 2002||Counsel's status report received (confidential)|
|Oct 10 2002||Request for extension of time filed|
To file appellant's reply brief. (2nd request)
|Oct 15 2002||Filed:|
Supplemental proof of service of application for extension of time to file appellant's reply brief.
|Oct 17 2002||Extension of time granted|
To 12/10/2002 to file appellant's reply brief. After that date, only three further extensions totaling 160 additional days are contemplated. Extension is granted based upon counsel Richard C. Gilman's representation that he anticipates filing that brief by 5/15/2003.
|Dec 6 2002||Counsel's status report received (confidential)|
|Dec 20 2002||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Dec 23 2002||Extension of time granted|
To 2/10/2003 to file appellant's reply brief. The court anticipates that after that date, only two further extensions totaling 100 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Feb 13 2003||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Feb 18 2003||Counsel's status report received (confidential)|
|Feb 18 2003||Extension of time granted|
to 4/11/2003 to file appellant's reply brief. The court anticipates that after that date, only one further extension totaling 40 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule and to take all steps to meet it.
|Mar 14 2003||Compensation awarded counsel|
|Apr 16 2003||Request for extension of time filed|
to file appellant's reply brief and request for relief from default. (5th request)
|Apr 18 2003||Order filed|
Good cause appearing, apellant's request for releif from default is granted. Extension granted to 5/12/2003 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Richrd C. Gilman's representation that he anticipates filing that brief by 5/11/2003.
|Apr 29 2003||Change of Address filed for:|
appellant's counsel Richard C. Gilman.
|May 5 2003||Counsel's status report received (confidential)|
|May 12 2003||Request for extension of time filed|
to file appellant's reply brief. (6th request)
|May 14 2003||Extension of time granted|
to 5/27/2003 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Richard C. Gilman's representation that he anticipates filing that brief by 5/26/2003.
|May 15 2003||Exhibits lodged|
People's 1B, 2, 3, 4, 7, 12, 13, 15, 17, 19, 23, 28, 29, 37, 42a, 42b and 66.
|May 28 2003||Request for extension of time filed|
to file appellant's reply brief. (7th request)
|Jun 2 2003||Extension of time granted|
to 6/2/2003 to file appellant's reply brief. Extension is granted based upon counsel Richard C. Gilman's representation that he anticipates filing that brief by 6/2/2003. After that date, no further extension will be granted.
|Jun 11 2003||Application for relief from default filed|
to file reply brief. (41 pp. brief received under separate cover in LA on 6/10/2003)
|Jun 13 2003||Order filed|
granting appellant's application for relief from default to file reply brief.
|Jun 13 2003||Appellant's reply brief filed|
|Sep 22 2003||Counsel's status report received (confidential)|
|Apr 1 2004||Counsel's status report received (confidential)|
|Apr 27 2004||Counsel's status report received (confidential)|
|Jul 22 2004||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as September calendar, to be held the week of Sept. 7, 2004, in San Francisco. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument.
|Aug 2 2004||Filed letter from:|
DAG Rhodes, dated 7/29/2004, requesting that oral argument be scheduled for 9/9/2004 due to pre-paid vacation.
|Aug 2 2004||Filed letter from:|
atty Gilman, dated 7/30/2004, requesting that oral argument be scheduled on 9/9/2004 and focus issues for oral argument.
|Sep 1 2004||Case ordered on calendar|
10/5/04 @ 2pm - Los Angeles
|Sep 15 2004||Filed letter from:|
respondent, dated 9/13/2004, re focus issues for oral argument.
|Sep 24 2004||Received:|
letter from respondent, dated 9-22-2004, with additional authorities.
|Oct 5 2004||Cause argued and submitted|
|Dec 16 2004||Opinion filed: Judgment affirmed in full|
Opinion by Chin, J. ----joined by George, C.J., Baxter, Werdegar, Brown and Moreno, JJ. Concurring opinion by Kennard, J.
|Jan 19 2005||Remittitur issued (AA)|
|Jan 25 2005||Exhibit(s) returned|
People's: 1B, 2, 3, 4, 7, 12, 13, 15, 17, 19, 23, 28, 29, 37, 42A, 42B and 66, returned to San Bernardino Superior Court.
|Jan 27 2005||Received:|
Acknowledgment of receipt of remittitur.
|Feb 4 2005||Order filed (150 day statement)|
|Feb 4 2005||Received:|
Acknowledgment of receipt of exhibits.
|Feb 14 2005||Motion to withdraw as counsel filed|
by attorney Richard C. Gilman, to withdraw as habeas corpus counsel only.
|Mar 14 2005||Received:|
Letter from U.S.S.C., dated 3/10/2005, advising time extended up to and including 4/15/2005 to file cert petition.
|Mar 16 2005||Appointed counsel's request to be relieved filed|
Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for condemned inmate Michael Steven Combs, filed February 14, 2005, is granted. The order appointing Richard C. Gilman as counsel of record for condemned inmate Michael Steven Combs, filed August 4, 1997, is hereby vacated with respect to the habeas corpus/executive clemency representation related to the above automatic appeal now final in this court. Mr. Gilman will as appellate counsel of record and will continue to be responsible for all appellate duties specified in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for condemned inmate Michael Steven Combs. Gilman is directed to deliver to Executive Director Millman, within 30 days from the filing of this order, all habeas corpus investigation work product, trial files, investigation reports and related materials that he has obtained from condemned inmate Combs, trial counsel, or his paralegals, experts and investigators, or from any other source. Brown, J., was absent and did not participate.
|Mar 16 2005||Order filed|
In conjunction with the order filed this day permitting Richard C. Gilman to withdraw as habeas corpus/executive clemency counsel of record for condemned inmate Michael Steven Combs, with regard to the above automatic appeal now final in this court, Gilman is hereby ordered to reimburse the court the sum of $37,330. Subject to Gilman's timely and satisfactory completion of his on-going obligations with regard to the appellate representation of Combs, the court will permit him to satisfy this reimbursement order from future appellate fixed fee progress payments to which he would otherwise become entitled. Brown, J., was absent and did not participate.
|Apr 11 2005||Received:|
Copy of appellant's cert petition. (24 pp. - excluding appendix)
|Apr 15 2005||Received:|
Letter from U.S.S.C., dated 4/11/2005, advising cert petition filed on 4/11/2005 as No. 04-9588
|May 9 2005||Received:|
respondent's brief in opposition to appellant's cert petition. (59 pp. - excluding attachment)
|Jun 6 2005||Certiorari denied by U.S. Supreme Court|
|Jun 13 2005||Related habeas corpus petition filed (post-judgment)|
by California Appellate Project, S.F.
|Oct 3 2005||Counsel appointment order filed|
The order appointing Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, to serve as interim habeas corpus/executive clemency counsel of record for condemned prisoner Michael Steven Combs, filed March 16, 2005, is hereby vacated. Michael R. Belter is hereby appointed as counsel of record for condemned prisoner Michael Steven Combs. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate.
|Dec 7 2005||Counsel's status report received (confidential)|
from atty Belter.
|Dec 16 2005||Order filed|
The order filed in the above case on October 3, 2005, is amended to read as follows: The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for condemned prisoner Michael Steven Combs, filed March 16, 2005, is hereby vacated. Michael R. Belter is hereby appointed as counsel of record for condemned prisoner Michael Steven Combs. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 24 months [now 36 months]" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel Richard C. Gilman's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of condemned prisoner Michael Steven Combs.
|Feb 2 2006||Compensation awarded counsel|
|Feb 6 2006||Counsel's status report received (confidential)|
from atty Belter.
|Apr 21 2006||Filed:|
declaration of attorney Michael R. Belter (confidential).
|Apr 27 2006||Counsel's status report received (confidential)|
by atty Belter.
|May 10 2006||Compensation awarded counsel|
|Jun 5 2006||Counsel's status report received (confidential)|
from atty Belter.
|Jun 12 2006||Filed:|
declaration of attorney Michael R. Belter (confidential)
|Jun 21 2006||Compensation awarded counsel|
|Jun 28 2006||Compensation awarded counsel|
|Jul 17 2001||Appellant's Opening Brief filed. (148 Pp.)|
|Jul 22 2002||Respondent's brief filed|
|Jun 13 2003||Appellant's reply brief filed|