IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MARK CHRISTOPHER CREW,
Santa Clara County
Super. Ct. No. 101400
Defendant and Appellant.
A jury convicted defendant Mark Christopher Crew of one count of murder
(Pen. Code, § 187, subd. (a))1 and one count of grand theft (§§ 484, 487). The
jury found true a special circumstance allegation that the murder was carried out
for financial gain. (§ 190.2, subd. (a)(1).) Defendant was sentenced to death.
This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239.)
I. FACTS AND PROCEEDINGS
A. Guilt Phase
1. Prosecution’s case
Defendant met Nancy Jo Wilhelmi Andrade (Nancy), a nurse, at the Saddle
Rack bar in San Jose in 1981, shortly after Nancy’s divorce. Nancy owned a
purebred horse and a Ford pickup truck. Nancy and defendant were romantically
involved until November or December of 1981, after which they did not see each
other until April of 1982, when they resumed the relationship.
All statutory references are to the Penal Code unless otherwise indicated.
In January 1982, when Nancy and defendant were not romantically
involved, Nancy and her friend Darlene Bryant planned a trip across the United
States for the summer, and that spring Nancy bought a yellow Corvette for the trip.
In May 1982, Richard Elander, one of defendant’s best friends, began work at a
ranch in Utah run by Richard Glade. Before Elander left for Utah, defendant had
talked to him about killing Nancy during a trip across the country. While in Utah,
Elander asked Glade about carrying a body into the wilderness of the Utah
mountains. Disturbed by the conversation, Glade fired Elander.
Defendant asked Nancy to move to Greer, South Carolina, where
defendant’s mother and stepfather lived. When Nancy replied she did not want to
move so far away unless married, defendant agreed to marry her. The wedding
took place on June 4, 1982.
The marriage soon floundered. Nancy was living with Darlene at the
latter’s home, but defendant was rarely there. Nancy twice saw defendant with
some women at the Saddle Rack bar. She told several friends she was thinking of
an annulment of the marriage.
Defendant had been romantically involved with Lisa Moody, to whom he
proposed marriage in June 1982, the same month he married Nancy. Defendant
and Moody did not set a date for the wedding.
In July 1982, defendant and his friend Richard Elander moved to Greer,
South Carolina, where they stayed with defendant’s parents and started a truck
service business. That same month, Nancy and her friend Darlene took their
planned vacation trip across the country. They stopped in Greer, South Carolina,
and Nancy spent the night with defendant.
After Nancy’s visit to South Carolina, defendant and his stepfather, Bergin
Mosteller, decided to return to California to kill Nancy. The two men discussed
different ways of killing her, including suffocation, hitting her with a large
wrench, and “bleeding her in the shower so she wouldn’t make any mess.” They
also discussed leaving her body in the Utah wilderness, where they could bury her
or “hang her in a tree, let the bears eat her.”
After returning to California in early August 1982, Nancy often spoke on
the telephone with defendant. She decided to move to South Carolina in an effort
to make the marriage work, and she began to make arrangements to do so. She
gave custody of her two children from a prior marriage to their father and closed
out her bank account, obtaining $10,500 in cash and a money order for $2,500.
When Deborah Nordman, one of Nancy’s friends, remarked that Nancy might be
left in the desert during the trip with defendant to South Carolina, Nancy replied,
“If you don’t hear from me in two weeks, send the police.”
On August 21, 1982, defendant and his stepfather came to Darlene’s house,
where Nancy was living, in a station wagon pulling a horse trailer. They loaded
Nancy’s belongings into the trailer and picked up Nancy’s horse from a stable in
Gilroy. The plan was for Mosteller to drive the station wagon to Texas, where he
would leave the horse with relatives. Nancy and defendant would follow in
Nancy’s Corvette and truck. They would leave the truck in Texas, where
defendant’s friend, Richard Elander, would retrieve the truck, the horse, and
Nancy’s belongings and take them all to South Carolina. Nancy and defendant
would then leave Texas in Nancy’s Corvette to go on a two-week honeymoon.
Mosteller, however, never went to Texas. He boarded the horse in a stable in San
Jose, drove to Nevada, and finally flew to South Carolina.
On August 23, Nancy and defendant went to Nancy’s parents’ home in
Santa Cruz, California, where they picked up Nancy’s dog and some of her
belongings, including a microwave, stereo components still in the original cartons,
and personal documents. That same day, Nancy and defendant ostensibly left for
That same night, however, defendant checked into a Motel 6 in Fremont,
California, where he registered to stay for two nights. The next day, he arrived at
the home of Lisa Moody, the woman who had accepted defendant’s marriage
proposal shortly after his marriage to Nancy. Over the next two days, defendant
gave Lisa a stereo and a microwave, took her to see a horse in a San Jose stable,
and arranged for her to convert $5,000 in cash into a cashier’s check payable to
Bergin Mosteller, defendant’s stepfather.
On August 28, 1982, defendant and Lisa left for South Carolina in a pickup
truck with a horse in a trailer. They stopped in Texas, where they stayed at
defendant’s grandmother’s house for a couple of days. While there, defendant
became upset and agitated after receiving a phone call. After defendant and Lisa
arrived in Greer, South Carolina, defendant opened a bank account in which he
deposited Nancy’s $2,500 money order. Defendant and Elander sold Nancy’s
clothing and possessions at a flea market for about $500, burned her documents in
a backyard, and sold the horse trailer and Nancy’s horse.
Defendant and Lisa returned to San Jose in mid-September. Defendant
then sold Nancy’s truck for $4,200, giving the purchaser a certificate of title with
Nancy’s forged signature. On October 13, 1982, defendant told Lisa that the
phone call he received in Texas while they were at his grandmother’s house was
about a woman who loved him and was telling people in South Carolina she was
going to marry him. According to defendant, the woman went to the head of the
Mafia in Arizona to complain about defendant, but the Mafia killed her instead.
Defendant told Lisa that he was forced to dispose of the body to avoid being
blamed for the woman’s death, and that he buried it in his friend Bruce Gant’s
backyard. The phone call defendant had received in Texas was actually from Gant
who told him that the “body was beginning to stink.” That same day, defendant
returned to South Carolina in Nancy’s Corvette.
Richard Elander testified under a grant of immunity. He said that on the
day defendant and Lisa arrived in Greer, South Carolina, defendant told him the
details of Nancy’s killing. According to Elander, after defendant and Nancy left
San Jose, California, they stopped and walked up a hillside into the woods. While
Nancy and defendant were sitting on the hillside talking, defendant shot her in the
back of the head and rolled the body down a ravine where he covered it with
blankets. Defendant then drove one of the cars to Bruce Gant’s house in
Campbell, California. Defendant and Gant returned to the scene and retrieved the
The next evening, defendant and Gant got drunk and returned to the site
where defendant had shot Nancy. When defendant walked down to her body, it
had moved. Defendant “freaked out,” ran back to the truck, and told Gant. Gant
went down the ravine where he tried to strangle Nancy and break her neck. He
eventually cut off Nancy’s head. Defendant told Elander that they put Nancy’s
body in a 55-gallon drum filled with cement and buried it in Gant’s backyard.
They put her head in a five-gallon bucket filled with cement and threw it off the
Dumbarton Bridge between Alameda and San Mateo Counties, California.
A few days after defendant returned to South Carolina, Elander testified, he
sold Nancy’s Corvette to Marion Mitchell. When Mitchell repeatedly asked for
title to the car, Elander told him that defendant had killed his wife by shooting her,
cutting off her head, putting the body in a barrel filled with concrete, and burying
it in a backyard. Elander then forged defendant’s signature on a bill of sale and
gave it to Mitchell.
In January 1983, defendant made arrangements to stay in Connecticut with
Jeanne Meskell, with whom he previously had a relationship. While there,
defendant told Meskell that he had killed a girl, that she was in two pieces in two
drums filled with cement, and that one drum was in the San Francisco Bay and one
was in a backyard. In March 1983, the San Jose police searched Bruce Gant’s
house, where they recovered a Tiffany lamp identical to one of Nancy’s. A search
of Gant’s yard with steel probes in March 1983 and again in 1984 did not reveal
anything. Nancy’s body was never found.
2. Defense case
The defense at the guilt phase consisted primarily of challenges to the
credibility of the prosecution witnesses. The defense introduced evidence that
Elander was an untrustworthy drug addict who had engaged in “lying contests”
with defendant and that a woman with blonde hair and a dog had come to the San
Jose stable with defendant. Because Nancy had blonde hair and owned a dog, the
evidence was introduced to try to show that Nancy was aware that Mosteller had
taken her horse to the San Jose stable. The defense also introduced evidence to
raise doubts over the burial of Nancy’s body in Gant’s backyard in Campbell,
California. San Jose Police Officer Demowski testified that officers searched
Gant’s backyard three times without finding Nancy’s body. District attorney
investigator Ronald McCurdy testified that he could not find any records tying
Gant to the crime or the disposal of the body.
B. Penalty Phase
1. Prosecution case
The prosecution did not introduce any additional evidence in its case in
chief at the penalty phase.
2. Defense case
had no prior felony convictions.
Defendant’s father, William Crew, testified that defendant was born in Fort
Worth, Texas in 1954. The family moved to Novato, California, in 1957 and to
Petaluma, California, in 1966. During this time, defendant did well in school and
was involved in sports. Defendant was never physically abused as a child.
Defendant’s parents began to experience marital difficulties. His mother
became noncommunicative and withdrawn. In 1969, defendant’s parents
divorced; defendant and his father moved to San Jose. Defendant continued to do
well in school.
In 1970, when defendant was 15 years old, defendant’s father married
Barbara Martin. Defendant did not get along with his stepmother and one of her
three children. When defendant’s father and stepmother bought a home, his
stepmother’s children were each given a bedroom while defendant had to sleep on
a couch. Defendant’s grades in school began to decline. When he was 17 years
old, defendant quit high school and joined the Army.
Defendant did well in the Army. He became a squad leader in charge of 12
to 14 men, rose to the rank of sergeant, and became the driver for Colonel Donald
Pearce, the base commander. While he was in the Army, defendant married Patty,
his high school girlfriend, and they had one daughter. When a friend and fellow-
enlistee, James Gilbert, was getting in trouble because of his drinking, defendant
showed concern and compassion for him. Before his honorable discharge from
the Army in 1976, defendant and Patty divorced.
Thereafter, defendant married Debra Lunde and they moved to Minnesota.
When his marriage to Debra ended in 1981, defendant moved to Texas, where he
lived with and took care of his grandmother, Irene Watson, who was suffering
from cataracts. In 1978, defendant returned to California, where he worked as a
truck driver and attended junior college. He then became involved with Emily
Bates, whom he treated well.
Part of the testimony of two witnesses, Richard Elander and Kathy Harper,
actually given during their guilt phase testimony, was referenced at the penalty
phase as well as mitigating evidence about defendant’s background. That
testimony consisted of Elander’s testimony that defendant protected and cared for
him when Elander was a young man strung out on drugs. And Kathy Harper
testified that when she was financially destitute, defendant moved in with her and
provided financial support for her and her son.
Emily Bates testified at the penalty phase that she had a relationship with
defendant in 1977 and again in 1980. Defendant treated her well.
Defendant’s father, William Crew, asked the jury to spare his son’s life
because as an intelligent and capable person he could lead a productive life in
prison by doing assigned tasks.
Defendant’s grandmother, Irene Watson, testified that defendant took care
of her for two or three months in 1981 when she was in ill health.
James Gilbert, defendant’s friend whom defendant had helped while they
were in the Army, described defendant as a caring and generous person.
Colonel Pearce, the base commander for whom defendant was the assigned
driver while in the Army, said that defendant was intelligent, dependable, full of
common sense, and mature. He described defendant as a top soldier. In his view,
defendant should not be put to death because he could lead a productive life in
prison by, for instance, teaching auto repair.
The defense also presented evidence from three Santa Clara County
Sheriff’s Deputies (Ron Yount, Toby Council, and Donald Varnado) who had
daily contact with defendant during the four years he spent in the Santa Clara jail
awaiting trial. According to them, defendant interacted well with prisoners and
staff. Deputy Varnado mentioned that defendant prevented trouble by telling him
about a plan by male inmates to overpower a female officer. All three deputies
were of the view that if sentenced to life in prison, defendant could lead a
productive life by helping other inmates and doing assigned tasks.
Jerry Enomoto, the former head of the California Department of
Corrections and an expert on prisons, expressed the view that defendant would not
be a high security risk in prison. His opinion was not changed by defendant’s
alleged participation in a 1985 escape attempt, because it involved an
unsupervised outdoor area and was based on informant statements; because the
district attorney concluded there was insufficient evidence to prosecute defendant;
and because the plan did not involve weapons, violence, or the taking of hostages.
3. Prosecution rebuttal
Clinton Williams, an informant, testified that in 1985, while in the county
jail with defendant, the latter discussed an escape plan, which involved cutting a
hole in the surrounding fence. Defendant said he wanted to escape because he
thought he would be found guilty of the first degree murder of a woman whose
body was buried in an orchard outside California.
II. PRETRIAL PROCEEDINGS
A. Territorial Jurisdiction
conviction must be reversed because California
courts lacked territorial jurisdiction over the murder charges. He argues that there
is no evidence that he killed or prepared to kill Nancy within the State of
California, and that the trial court erred in not submitting the factual question of
the location of the murder to the jury. He argues these errors violated his federal
constitutional due process rights under Hicks v. Oklahoma (1980) 447 U.S. 343 by
arbitrarily depriving him of a state-created liberty interest. We disagree.
California courts have criminal jurisdiction over anyone who commits a
crime in whole or in part within this state and over anyone who commits a crime
outside California if the defendant formed the requisite intent within this state and
committed any act, including preparatory acts, showing that the crimes were
initiated within California. (§§ 27, 778a; People v. Morante (1999) 20 Cal.4th
403, 434, 437-438.) Territorial jurisdiction may be established by circumstantial
evidence. (People v. Cavanaugh (1955) 44 Cal.2d 252, 262.)
The evidence is sufficient here to establish California jurisdiction.
Preliminary plans for the murder took place in California. Nancy was last seen
alive on August 23, 1982, when she left her parents’ house in Santa Cruz with
defendant. That evening, defendant checked into a motel in Fremont, California.
The next day, defendant arrived at Lisa Moody’s house, also in Fremont, and he
gave her property belonging to Nancy. The evidence also indicates that Nancy
was killed in California because wherever defendant killed Nancy, the location
was close enough to Campbell, California, for defendant in one day to have driven
from the murder scene to Richard Gant’s house in Campbell, returned to the scene
of the murder with Gant to get the other vehicle, and then drive back to Gant’s
house. In addition, the evidence showed that Gant, in whose backyard the
evidence indicated Nancy’s body was buried for at least some period of time,
telephoned defendant in Texas to complain that the body was starting to smell.
There was thus ample evidence the killing occurred in California.
Defendant faults the trial court for not instructing the jury on its own
initiative to determine whether the killing occurred in California. He argues that
the court had a duty to do so, because territorial jurisdiction involves a general
principle of law closely and openly connected to the facts, and in this case a
defense supported by substantial evidence.
Defendant’s contention assumes that territorial jurisdiction is a factual
question for the jury. We need not decide that issue here. The trial court’s duty to
instruct on general principles of law and defenses not inconsistent with the
defendant’s theory of the case arises only when there is substantial evidence to
support giving such an instruction. (People v. Montoya (1994) 7 Cal.4th 1027,
1047.) Substantial evidence is evidence of reasonable, credible value. Here,
defendant’s theory that Nancy could have been killed in a state other than
California is based on speculation, not substantial evidence.
Evidence that defendant and others discussed the possibility of killing
Nancy and disposing of her body in the wilderness of Utah or elsewhere during a
trip across country pertained merely to discussions, not events. By contrast, the
above described evidence of events in California, such as when Nancy and
defendant left Santa Cruz, when defendant checked into a hotel in Fremont, how
defendant traveled to and from the scene of the crime with Gant, and Gant’s later
telephone call to defendant in Texas shows that Nancy’s murder occurred in
California. There is no evidence to the contrary.
Because defendant did not have a state-created right to instructions on
territorial jurisdiction, the trial court did not violate his due process rights under
Hicks v. Oklahoma, supra, 447 U.S. 343, by not giving such instructions on its
Defendant contends Santa Clara County was not the proper venue to try his
case. He argues there is no evidence the killing occurred in Santa Clara County,
pointing out that under section 790 venue for murder is in the “county where the
fatal injury was inflicted or the county in which the injured party died or in the
county in which his or her body was found.”
section 790 must be read together with section 781.
(People v. Price (1991) 1 Cal.4th 324, 385.) Section 781 provides that when a
public offense is committed in part in one jurisdiction and in part in another
jurisdiction “or the acts or effects thereof constituting or requisite to the
consummation of the offense occur in two or more jurisdictional territories,”
venue is proper in either jurisdiction. Section 781 is liberally construed to permit
trial in a county where only preparatory acts occurred. (People v. Price, supra, at
Defendant argues there is no evidence that any preparatory acts took place
in Santa Clara County. We disagree. There is evidence that defendant formed the
intent to kill Nancy while in Santa Clara County, because he discussed doing so
with Elander in that county. The evidence also supports the conclusion that the
events culminating in Nancy’s death arose and occurred at least in part in Santa
Clara County. Defendant picked Nancy up at her friend’s apartment in San Jose,
Santa Clara County, where they loaded her belongings into the trailer and her car.
The fateful trip began at the San Jose apartment from which defendant and Nancy
left to go to her parents’ house in Santa Cruz and from which they drove through
Santa Clara County to a hotel in Fremont, Alameda County, where within a day or
two, and perhaps as shortly as within a few hours after passing through Santa
Clara County, defendant killed Nancy. A “public offense may be tried in a
jurisdiction in which the defendant made preparations for the crime, even though
the preparatory acts did not constitute an essential element of the crime.” (People
v. Price, supra, 1 Cal.4th at p. 385.)
We need not here address defendant’s argument that the issue of the
appropriate venue was a factual question for the jury. Defendant did not request a
jury instruction on venue. Accordingly, just as in our recent decision in People v.
Simon (2001) 25 Cal.4th 1082, 1109, “[w]e have no occasion to address that issue
here because, even were we to assume that a defendant is entitled to have the
question of venue submitted to the jury when the issue has been preserved and the
defendant has timely tendered an adequate proposed instruction, in the present
case defendant failed to tender such an instruction.”
III. GUILT PHASE
A. Corpus Delicti
Defendant challenges his murder conviction on the ground that the corpus
delicti rule was not satisfied. We have summarized the rule as follows: “ ‘In any
criminal prosecution, the corpus delicti must be established by the prosecution
independently from the extrajudicial statements, confessions or admissions of the
defendant. [Citations.] The elements of the corpus delicti are (1) the injury, loss
or harm, and (2) the criminal agency that has caused the injury, loss or harm.
[Citation.] Proof of corpus delicti need not be beyond a reasonable doubt; a slight
or prima facie showing is sufficient. [Citation.]’ (People v. Diaz (1992) 3 Cal.4th
495, 528-529.) The identity of the perpetrator is not an element of the corpus
delicti.” (People v. Kraft (2000) 23 Cal.4th 978, 1057.)
Defendant argues that when his extrajudicial statements are excluded from
consideration, the remaining evidence is insufficient to support a reasonable
inference that Nancy is dead and that her death was caused by a criminal agency.
We conclude that the prosecution established the corpus delicti of the
murder. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1127.) For instance,
the prosecution presented evidence that Nancy’s contacts with her friends abruptly
stopped after she left San Jose with defendant. For 20 years, Nancy had
telephoned her friend Jeanette St. John on August 24, Jeanette’s birthday. She
promised to call another friend, Nilda Houseman, every other week after her
arrival in South Carolina. Shortly before her disappearance, Nancy told Debbie
Nordman to call the police if Nordman had not heard from her in two weeks. In
addition, shortly after Nancy’s disappearance, defendant sold Nancy’s truck, car,
horse, and clothes, and spent her money. This evidence is more than sufficient to
support a reasonable inference that Nancy is dead and her death was the result of a
criminal agency. (People v. Mattson (1990) 50 Cal.3d 826, 874-875.) Thus, the
prosecution sufficiently established the foundation for the admission of
defendant’s extrajudicial statements. (Id. at p. 874.)
B. Prosecutorial Misconduct
The trial court granted defendant’s motion in limine to exclude testimony
that Nancy said she feared defendant, ruling that the evidence was more
prejudicial than probative and also was inadmissible hearsay. (Evid. Code,
§§ 352, 1250.) The defense withdrew its objection to the admissibility of
testimony by a witness that in that person’s opinion Nancy was afraid of
defendant. The court denied defendant’s request to exclude Nancy’s statement to
Deborah Nordman to call the police if Nordman did not hear from Nancy in two
weeks after she left for South Carolina.
During his opening statement, the prosecutor said: “Nancy had told her
[friend] that she was very apprehensive about the move [to South Carolina]. Not
only the move, but apprehensive of the defendant, fearful of the defendant. She
had told one of her friends, ‘if you don’t hear from me in two weeks, call the
police.’ ” The defense did not object to this statement. After a lunch recess and
before the prosecution resumed its opening statement, defense counsel pointed out
that the prosecutor, “inadvertently perhaps,” had referred to Nancy’s statements of
fear. The prosecutor responded that his recollection was that he said Nancy feared
defendant, not that Nancy said she feared defendant. The prosecutor added that
“if I raised it where it sounded like a statement, I didn’t mean to. And I have
instructed the witnesses regarding that.” Defense counsel then commented: “[I]t
wasn’t sufficient to interrupt the [prosecutor’s opening] statement. I want to make
it clear that can’t come out again.”
Later, during the prosecution’s direct examination of Deborah Nordman,
Nancy’s friend, this colloquy occurred:
“Q. And do you recall the last conversation you had with [Nancy] about
not going [to South Carolina with defendant]?
“Q. What did you tell her?
“A. Well, she expressed some concern and some fear, and basically she
said to me ‘if you don’t hear from me in two weeks, send the police.’
“Q. What did you tell her before that?
“A. I told her if she had fear, reservations or that, you know, first of all, she
should not take the children because if anything was going to happen, she didn’t
want, didn’t feel she should have the children involved. And I – and I also told
her that if she had the fear, and up until that point – ”
The defense then objected on the ground the trial court had ruled that
Nancy’s statements of fear were inadmissible. After both counsel agreed that was
indeed the court’s ruling, the court told the prosecutor to proceed. After
Nordman’s testimony, defense counsel argued that Nordman, in violation of the
court’s order, had testified that Nancy told Nordman she was afraid. The
prosecutor asserted that Nordman’s remarks were nonresponsive and that he had
instructed her not to testify as to Nancy’s fear. Defense counsel then asked the
court to give the jury a cautionary instruction. The court told counsel to prepare
one. The next day, the court gave this instruction prepared by the defense:
“The court: Ladies and Gentlemen, before the next witness is called, I
wanted to read this cautionary instruction regarding evidence of fear.
“You are not to consider any testimony or evidence that Nancy Jo Crew
may have expressed either fear or apprehension of the defendant Mark Crew as
evidence that Mark Crew either killed Nancy Jo or that she is dead.
“Such evidence may only be considered for the limited purpose of
establishing whether or not it was likely that Nancy Jo Crew would have traveled
to South Carolina with Mark Crew.”
It is misconduct for a prosecutor to violate a court ruling by eliciting or
attempting to elicit inadmissible evidence in violation of a court order. (People v.
Silva (2001) 25 Cal.4th 345, 373.) It is also misconduct for a prosecutor to make
remarks in opening statements or closing arguments that refer to evidence
determined to be inadmissible in a previous ruling of the trial court. Because we
consider the effect of the prosecutor’s action on the defendant, a determination of
bad faith or wrongful intent by the prosecutor is not required for a finding of
prosecutorial misconduct. (People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn.
1.) A defendant’s conviction will not be reversed for prosecutorial misconduct,
however, unless it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct. (People v. Barnett
(1998) 17 Cal.4th 1044, 1133.) Also, a claim of prosecutorial misconduct is not
preserved for appeal if defendant fails to object and seek an admonition if an
objection and jury admonition would have cured the injury. (People v. Scott
(1997) 15 Cal.4th 1188, 1217.)
Defendant has failed to preserve for appeal the issue of prosecutorial
misconduct in the prosecutor’s opening statement to the jury. He did not object or
request an admonition. In addition, the prosecutor’s brief misstatement was not
prejudicial to defendant in view of the evidence later introduced against him and
the above described cautionary instruction prepared by defense counsel.
The prosecutor did not engage in misconduct in connection with
Nordman’s testimony. Nordman’s first answer did refer to Nancy’s statement that
she feared defendant. The answer, however, was not responsive to the question
the prosecutor had asked. The question was what Nordman said to Nancy, not
what Nancy said to her. There is nothing in the record to show that the prosecutor
elicited or attempted to elicit testimony in violation of the court’s order. The
prosecutor’s next question likewise asked what Nordman had said to Nancy, not
what Nancy had said to Nordman, and the answer given did not refer to statements
made by Nancy. Moreover, the court later admonished the jury as the defense
requested. Under these circumstances, it is not reasonably probable that the jury
would have reached a result more favorable to the defendant in the absence of the
C. Victim Hearsay Statement
that Deborah Nordman’s testimony that murder victim
Nancy had told her, “If you don’t hear from me in two weeks, send the police,”
was inadmissible hearsay, and that in any event the trial court should have
excluded the testimony as unduly prejudicial under Evidence Code section 352.
The statement was admissible. Even if viewed as hearsay (see Evid. Code,
§ 1200) the statement was within the state-of-mind exception to the hearsay rule.
It was also relevant and not unduly prejudicial, as discussed below.
Evidence Code section 1250 states an exception to the hearsay rule for
statements of a declarant’s then existing state of mind. It provides that such
statements are admissible as an exception to the hearsay rule when offered either
to prove the declarant’s state of mind when the declarant’s state of mind is itself in
issue or the evidence is offered to prove or explain acts or conduct of the
declarant. (Id., subd. (a)(1), (2).)
The statement was admissible under Evidence Code section 1250,
subdivision (a)(2) to explain Nancy’s conduct. The defense presented the theory
that Nancy disappeared of her own accord because she was a troubled person
suffering from stress and depression. Nancy’s statement to Nordman to send the
police if she was not heard from in two weeks was admissible as evidence that
Nancy did not disappear on her own. (People v. Noguera (1992) 4 Cal.4th 599,
620-622.) Because the statement was evidence of Nancy’s state of mind to
explain her conduct concerning going with defendant, it was also relevant. (Evid.
Code, § 210.)
Because the testimony was probative on whether Nancy’s disappearance
was of her own volition, its evidentiary value was not substantially outweighed by
the danger of undue prejudice under Evidence Code section 352. Prejudice for
purposes of section 352 refers to evidence that tends to evoke an emotional bias
against the defendant. (People v. Karis (1988) 46 Cal.3d 612, 637-638.) Contrary
to defendant’s assertion, the prejudice, if any, of the statement about calling the
police if Nordman did not hear from Nancy in two weeks did not outweigh its
probative value because it followed Nordman’s nonresponsive answer that Nancy
said she feared defendant. Evidence of Nancy’s fear of defendant was introduced
independent of the statement by Nordman.
D. Claims of Improper Admission of Evidence
1. False statements of Bergin Mosteller
The prosecution introduced evidence that on August 22, 1982, defendant’s
stepfather, Bergin Mosteller, drove to Reno, Nevada. There, he left his car at the
airport and traveled to Boulder City, Nevada, where he told the police he had been
robbed that morning of his money and his car. Mosteller then flew to South
Carolina, where on August 27, 1982, he made an insurance claim for the loss of
his car, stating that he had been on a sales trip to Texas but had detoured to drop
off his stepson and a woman named Lisa in Los Angeles and Twentynine Palms,
California. Defense counsel objected to this evidence as hearsay and as more
prejudicial than probative. The prosecutor argued that the statements were not
hearsay because they were not offered for the truth of the matter asserted, and that
they were more probative than prejudicial because they showed Mosteller trying to
establish an alibi for himself because he was aware that defendant was going to
kill Nancy. The trial court, without mentioning the hearsay objection, ruled that
the evidence was admissible as more probative than prejudicial, but also that the
prosecutor could not introduce evidence of the false statements concerning the
facts of the alleged robbery.
The evidence in question was not hearsay. A statement is hearsay if it is
made other than by a witness while testifying and is offered to prove the truth of
the matter asserted. (Evid. Code, § 1200.) The statements were not admitted to
prove that Mosteller was the victim of a robbery; they were offered to prove that
Mosteller tried to establish an alibi for himself and thus must have known that
defendant was going to commit a crime. As defense counsel conceded at trial, the
statements were relevant: They had a tendency in reason to prove that Mosteller
believed he needed to establish a false alibi, thereby providing circumstantial
evidence that he knew that defendant, whom he had just left, intended to engage in
a criminal act. Nor did the trial court abuse its discretion in ruling that the
prejudicial effect of the evidence did not substantially outweigh its probative
value. (Evid. Code, § 352.) The evidence of Mosteller’s false reports was not
unduly prejudicial because it would not arouse an emotional bias against
defendant in the jury.
2. Bruce Gant’s statement to Nancy’s father
At a hearing outside the jury’s presence (Evid. Code, § 402), the trial court
ruled admissible the proposed testimony of Jake Wilhelmi, Nancy’s father,
regarding a statement Bruce Gant made to him about the location of Nancy’s
body. Wilhelmi then testified before the jury that on May 9, 1984, he telephoned
Gant and asked him for the location of his daughter’s body so he could give her a
decent burial. At the end of the conversation Gant told him that he “might as well
forget about trying to find” Nancy, that he “couldn’t get within a hundred yards of
her, and that the U.S. Government didn’t have enough money to excavate her.”
Defense counsel objected that the testimony was hearsay and that the risk of undue
prejudice outweighed its probative value. The prosecutor argued the statement
was admissible under the state of mind exception to the hearsay rule (Evid. Code,
§ 1250) and as a declaration against interest (id., § 1230).
We need not determine if the statement was hearsay because any error in
admitting the statement was harmless. The jury was quite aware that Nancy’s
body was never found. As the jury already knew that the body was never found,
the testimony that Gant said it was useless for Nancy’s father to look for her body
did not unduly prejudice defendant.
3. Doug Crew’s testimony
Defendant’s stepbrother Doug Crew testified that defendant said to him:
“Doug, I’ve done so many things. I think I would like to kill someone, just to see
if I could get away with it.” Doug Crew further testified that defendant probably
made the statement in April, May, or June of 1982. Defendant argues the trial
court should have sustained his objection to the statement on the ground it was
more prejudicial then probative because the statement made no reference to a
specific victim and because it was too remote in time.
A generic threat is admissible “where other evidence brings the actual
victim within the scope of the threat.” (People v. Rodriguez (1986) 42 Cal.3d 730,
757.) Here, other evidence brings Nancy within the scope of defendant’s threat.
Richard Elander testified that before May 1982, when he went to work at the ranch
in Utah, defendant had talked about killing Nancy. Elander also testified that in
August 1982, he and defendant discussed various ways of killing Nancy. The
evidence of defendant’s statement to his stepbrother, Doug, while damaging to
defendant’s case, was not unduly prejudicial. Prejudice for purposes of Evidence
Code section 352 means evidence that tends to evoke an emotional bias against the
defendant with very little effect on issues, not evidence that is probative of a
defendant’s guilt. (People v. Karis, supra, 46 Cal.3d at p. 638.)
4. Elander’s statement to Glade
Richard Elander and Richard Glade both testified that near the end of May
1982, they discussed disposing of a woman’s body in the rugged Utah mountains.
Defendant did not object to either Elander’s or Glade’s testimony. Defendant now
contends that the evidence was irrelevant because it was not tied to defendant, was
not within the coconspirator exception to the hearsay rule, and was more
prejudicial than probative.
Because he did not object to the testimony, defendant has failed to preserve
the issue for appeal. (People v. Medina (1995) 11 Cal.4th 694, 740.) In any event,
the testimony was admissible. Elander testified that he believed he gave Glade the
name of the person who wanted to kill a woman. Glade testified that he recalled
Elander’s mentioning defendant’s name in the conversation. Thus, contrary to
defendant’s contention here, both Elander and Glade linked defendant to the
5. Evidence of prior consistent statement
Marion Mitchell testified that in the fall of 1982, he bought a yellow
Corvette from defendant, that the car was part of a divorce settlement, and that
defendant promised to give Mitchell title to the car after that divorce was final.
Mitchell repeatedly asked Elander where defendant was. Elander eventually told
Mitchell that defendant was not coming back to South Carolina because he had
killed his wife, that defendant shot her but when he went back to the scene she had
crawled off, and that defendant cut off her head, put her body in a barrel filled
with cement, and buried her in someone’s backyard. Defense counsel objected to
the testimony as hearsay.
Defendant contends Mitchell’s testimony should not have been admitted.
Not so. The testimony was admissible as a prior consistent statement of Elander’s.
Evidence of a previous statement made by a witness is admissible under the prior
consistent statement exception to the hearsay rule if there has been an express or
implied charge that the witness’s testimony is recently fabricated and the prior
consistent statement was made before the motive for fabrication is alleged to have
arisen. (Evid. Code, §§ 1236, 791.) In evaluating the admissibility of prior
consistent statements, the focus is on “the specific agreement or other inducement
suggested by cross-examination as supporting the witness’s improper motive.”
(People v. Noguera, supra, 4 Cal.4th at p. 630.)
In his opening brief, defendant relies essentially on his attack on Elander’s
credibility during cross-examination in light of Elander’s immunity agreement
with the prosecution. In response, the Attorney General pointed out that
Mitchell’s testimony referred to a time before the immunity agreement. In his
reply brief, defendant relies on cross-examination challenging Elander’s
credibility based on lies Elander told police, and on his claim that Elander had a
motive to fabricate when Elander made the statements to Mitchell because he
knew the police were then looking for defendant and Elander was concerned about
the police investigation. Defendant’s cross-examination of Elander sought to
impeach Elander’s testimony implicating defendant based on false statements
Elander had made to the police during the investigation. Because Elander’s
statement to Mitchell preceded the police inquiries and investigation, Mitchell’s
testimony was admissible as a prior consistent statement by Elander. Defendant
does not cite any challenge at trial to Elander’s purported motive to fabricate
based on knowledge that the police were investigating. Accordingly, Mitchell’s
testimony was admissible.
Because Mitchell’s testimony served to rehabilitate an impeached
prosecution witness, Elander, the trial court did not abuse its discretion in
determining that the probative value of the testimony outweighed its prejudicial
6. Testimony about bloody blanket
Kathy Harper, who lived in a house trailer with defendant between October
and December 1982, testified that she once entered the trailer when defendant and
Elander were there. They abruptly stopped talking, but not before she heard one
of them, although she could not recall which one, mention “a bloody blue blanket”
and say “I got sick.” At an in camera hearing, defense counsel stated “we have no
problem” with Harper’s testimony about the conversation. Defendant now
contends the testimony concerning the blanket was irrelevant and unduly
By not objecting, defendant failed to preserve the issue for appeal. (People
v. Medina, supra, 11 Cal.4th at p. 740.) In any event, the admission of the
testimony was harmless. Elander testified that defendant said he covered Nancy’s
body with a blanket after he shot her. Harper’s testimony was brief and added
very little to the evidence against defendant.
E. Victim Impact Evidence
Stacey Andrade, Nancy’s daughter, was 19 years old at the time of trial, but
12 years old when her mother disappeared. Andrade testified that she was close to
her mother, that she had wanted to live with her mother and move to South
Carolina, and that when Nancy left for South Carolina Nancy indicated she would
come back for Andrade around Christmas. She further testified that she and her
mother did “mother-daughter things,” including horseback riding. At the
conclusion of Andrade’s testimony, the court asked her, “how are you getting
along now?” She responded by saying that she had seen a counselor because of
the trauma in her life, that she was going to college, that her mother taught her to
be the best she could be, and that the loss of her mother “put [her] back a lot,”
because she really needed her mother during her teenage years. The court then
commented: “[T]hat’s a tremendous loss for a young lady to suffer. But seems to
me that you’re making the best of things.” The court told Andrade to “keep up the
this testimony by Andrade should not have been
admitted because it had minimal probative value and was extremely inflammatory
and prejudicial. Defendant argues the trial court’s colloquy with Andrade at the
end of her testimony exacerbated the prejudice. We disagree.
Defense counsel failed to preserve this issue for appeal because he did not
object at trial to Andrade’s testimony or to the judge’s comments. Also,
Andrade’s testimony was directly relevant to and highly probative of whether
Nancy met with foul play or, as the defense suggested, had disappeared of her own
F. Instructional Error
1. CALJIC No. 2.11.5
Defendant contends the trial court erred in instructing the jury under
CALJIC No. 2.11.5. That instruction tells the jury not to discuss or to consider
why a person who may have been involved in the crime is not being prosecuted.
(Here, Richard Elander, who may have participated in the crime, was granted
immunity from prosecution.)
We have held that this instruction should be clarified or not given when a
non-prosecuted participant testifies at trial. (People v. Lawley (2002) 27 Cal.4th
102, 162; People v. Williams (1997) 16 Cal.4th 153, 226.) We have further held,
however, that the giving of CALJIC No. 2.11.15 is not error when it is given
together with other instructions that assist the jury in assessing the credibility of
witnesses. (People v. Lawley, supra, at p. 162.) That occurred here, where the
trial court instructed the jury it could consider any evidence of witness credibility,
including the existence or nonexistence of a bias, interest, or other motive
(CALJIC No. 2.20), and to consider the instructions as a whole (CALJIC No.
1.01). (See People v. Williams, supra, at p. 227.) In addition, in closing argument
to the jury, defense counsel expressly mentioned Elander’s grant of immunity as a
ground for impugning Elander’s testimony. (See People v. Hardy (1992) 2
Cal.4th 86, 190-191.)
2. Proximate cause
testified that defendant told him that the evening after
defendant had shot Nancy, defendant and Gant got drunk and returned to the scene
of the shooting. Defendant told Elander that when he walked down to the body, it
had moved, and that Nancy appeared to still be alive. Defendant then “freaked out
and ran back up to the truck and was telling [Gant] about it, and [Gant] went down
and tried to strangle [Nancy] and break her neck, and finally ended up cutting her
head off.” Defendant contends that this evidence establishes that the causation
instructions given the jury were erroneous, misleading, and incomplete, and
created an impermissible mandatory presumption of causation.
The trial court told the jury that the unlawful act must be the proximate
cause of the death and that proximate cause is a cause that “in natural and
continuous sequence, produces the death, and without which the death would not
have occurred.” The court further instructed, in the language of CALJIC No. 3.41,
that there may be more than one proximate cause; that when two or more persons’
acts contribute concurrently as a proximate cause, each person may be criminally
liable if that person’s conduct was a substantial factor contributing to the result;
and that a cause is concurrent if it was “operative at the time of the murder and
acted with another cause to produce the murder.”
The trial court here, however, modified CALJIC No. 3.41 by adding this
language: “If you are convinced beyond a reasonable doubt that Mark Crew shot
his wife but you are not certain beyond a reasonable doubt that the shot was the
proximate cause of her death, you must find Mark Crew not guilty of murder
unless you believe the evidence proves beyond a reasonable doubt that Mark Crew
directed, aided, or encouraged another to kill Nancy Crew. [¶] If the evidence
shows that Nancy Crew was killed by someone other than Mark Crew, and you
have reasonable doubt as to whether or not Mark Crew directly aided by act or
advised this person to kill Nancy Crew, you must find Mark Crew not guilty of the
crime of murder.” In addition, the court instructed the jury on the criminal
liability and definition of an aider and abettor. (CALJIC Nos. 3.00, 3.01, 3.03.)
Defendant contends the trial court erred in giving the then standard
proximate cause instruction, CALJIC No. 8.55, because that instruction is
“virtually identical” (People v. Roberts (1992) 2 Cal.4th 271, 313) to an
instruction this court disapproved in Mitchell v. Gonzales (1991) 54 Cal.3d 1041.
(People v. Roberts, supra, at p. 313.) Any error was harmless. (People v. Catlin
(2001) 26 Cal.4th 81, 156-157.) Any possible jury confusion engendered by the
use of the term “proximate” could only benefit defendant. This court’s concern
with the term “proximate” in Mitchell was that it could mislead a jury into viewing
the legal requirement of causation as more limited than it is. (Catlin, at p. 157.)
Thus, here, as in Catlin, any ambiguity in the instruction could not have caused a
juror who otherwise thought defendant’s acts were not a cause of Nancy’s death to
conclude that defendant nevertheless proximately caused her death. (Ibid.)
Defendant argues the trial court should have instructed the jury that Gant’s
actions in strangling Nancy and then cutting off her head could be an independent
intervening cause breaking the causal connection between defendant’s shooting of
Nancy and her death. Not so. To relieve a defendant of criminal liability, an
intervening cause must be an unforeseeable and extraordinary occurrence.
(People v. Schmies (1996) 44 Cal.App.4th 38, 50.) The defendant remains
criminally liable if either the possible consequence might reasonably have been
contemplated or the defendant should have foreseen the possibility of harm of the
kind that could result from his act. (Ibid.) Here, a jury could not possibly have
found that Gant’s attempt to make sure Nancy was dead was unforeseeable.
Moreover, any error was harmless under any standard because here it is
clear beyond a reasonable doubt that a rational jury would have found defendant
guilty absent any error. (See People v. Nguyen (2000) 24 Cal.4th 756, 765.) Even
if Gant’s actions could be described as an independent intervening cause of
Nancy’s death, they would relieve defendant of criminal liability only if the jury
found that his shooting Nancy in the head was not a concurrent cause of her death.
No reasonable jury could have found that the shot defendant fired into Nancy’s
head was not a concurrent cause of her death.
Finally, defendant contends the proximate cause instruction creates a
constitutionally impermissible mandatory presumption because it tells the jury that
a proximate cause is one that “in natural and continuous sequence” produces the
death, thereby precluding consideration of intervening causes. Not so. When
there is an intervening cause, the initial cause is not one that continues to operate
in a natural and continuous sequence.
3. Reasonable doubt and evidentiary instructions
Defendant challenges 11 standard jury instructions that the trial court gave.
Four of the instructions, CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1, told the jurors
that they must accept a reasonable interpretation of evidence over an unreasonable
one. Defendant contends these instructions would have misled the jury into
finding him guilty if it decided defendant reasonably appeared guilty, rather than
finding him not guilty if it entertained a reasonable doubt about his guilt. As
defendant concedes, we have previously rejected this contention. (People v.
Mendoza (2000) 24 Cal.4th 130, 181; People v. Crittenden (1994) 9 Cal.4th 83,
144.) We do so again here.
Defendant points out that four of the instructions, CALJIC Nos. 1.00, 2.01,
2.51, and 2.52, referred to “guilt or innocence.” This phrase, he argues, relieved
the prosecution of its burden of proof by implying that the issue was one of guilt
or innocence instead of whether there was or was not a reasonable doubt about
defendant’s guilt. Challenges to the wording of jury instructions are resolved by
determining whether there is a reasonable likelihood that the jury misapplied or
misconstrued the instruction. (People v. Clair (1992) 2 Cal.4th 629, 662-663.)
Here, it is not reasonably likely that the jury would have misapplied or
misconstrued the challenged instructions, one of which expressly reiterates that
defendant’s guilt must be established beyond a reasonable doubt. (CALJIC No.
2.01.) The instructions in question use the word “innocence” to mean evidence
less than that required to establish guilt, not to mean the defendant must establish
innocence or that the prosecution has any burden other than proof beyond a
reasonable doubt. (People v. Wade (1995) 39 Cal.App.4th 1487, 1493.) Here, the
jury was repeatedly instructed on the proper burden of proof. (E.g., CALJIC Nos.
2.90, 4.21, 8.71.)
Defendant contends three other jury instructions improperly lessened the
prosecution’s burden of proof. The first of those stated that a witness willfully
false in part of his or her testimony was to be distrusted in other parts of the
testimony. (CALJIC No. 2.21.2.) We have in the past rejected such a challenge
when the defendant is the witness. (People v. Beardslee (1991) 53 Cal.3d 68, 94-
95.) The challenge has even less force when, as here, the witness is other than the
defendant. Second, defendant challenges the instruction that the jury should not
decide guilt or innocence based on the number of witnesses but on the convincing
force of the evidence. (CALJIC No. 2.22.) This instruction addresses the jury’s
evaluation of evidence, not the burden of proof. Defendant’s third challenge is to
CALJIC No. 8.20. This instruction requires the jury to find the killing was
preceded by a clear and deliberate intent to kill that must have been formed upon
preexisting reflection and not precluded by conditions that negate deliberation.
There is no reasonable likelihood that any jury would misconstrue this instruction
as lessening the prosecution’s burden of proof in any respect.
4. Instructions on consciousness of guilt
The trial court instructed the jury that the flight of a person immediately
after the commission of a crime is not sufficient to establish guilt but may be taken
into consideration. (CALJIC No. 2.52.) It also instructed the jury not to consider
an effort to procure false evidence for the defendant’s benefit unless the jury finds
that the defendant authorized the effort, and that even then the conduct by itself is
not sufficient to prove guilt. (CALJIC No. 2.05.) Defendant contends these
instructions are impermissible “pinpoint” instructions to consider specific pieces
of evidence against him. We have in the past rejected such a challenge (People v.
Jackson (1996) 13 Cal.4th 1164, 1223-1224), and we do so again here.
contends the consciousness of guilt instructions should
not have been given here because there was insufficient evidence of flight or
procuring false evidence. There was adequate evidence that after Nancy’s murder
defendant fled from California to Texas and South Carolina. With respect to the
instruction on procuring false evidence, the Attorney General argues it was
supported by testimony that defendant instructed his stepfather, Bergin Mosteller,
to tell Nancy’s parents that Mosteller had thrown defendant and Nancy out of the
house for using drugs and that they had gone to Florida. Defendant counters that
the evidence of what Mosteller said was too remote to be probative of procuring
false evidence for trial. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1139
[instruction on fabricating evidence does not require existence of judicial
proceedings].) In any event, any error was harmless under any standard. At most,
the instruction was superfluous. (People v. Jackson, supra, 13 Cal.4th at p. 1225.)
G. Jury Inquiry About Limited Admissibility of Evidence
On the third day of deliberations, the jury asked the trial court if it was
“possible to obtain a list of evidence that was presented for limited purpose?”
After conferring with counsel for the parties, the court responded: “Evidence
received for a limited purpose: 1. Portions of the testimony of: (a) Tanis Palmer
(b) Debbie Nordman (c) Darlene Bryant (d) Jake Wilhelmi (e) Lisa Moody.
2. Exhibits 17 and 17A.” Defendant contends the trial court should have also told
the jury that the testimony of Mitchell and Glade, admitted under the prior
consistent statements exception to the hearsay rule, was admitted for the limited
purpose of evaluating Elander’s credibility.
Defendant’s argument assumes that prior consistent statements are
admissible only to support the credibility of a witness and not for the truth of the
matter stated. Such statements, however, are admissible for both purposes. (Cal.
Law Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 1236,
IV. SPECIAL CIRCUMSTANCE
The jury found true the special circumstance allegation that defendant
murdered Nancy for financial gain. (§ 190.2, subd. (a)(1).) Defendant challenges
the finding on the grounds that (1) the evidence is insufficient to support it, (2) it is
overbroad, (3) the jury was improperly instructed on the special circumstance, and
(4) the special circumstance is unconstitutionally vague and violates the
prohibition against ex post facto laws.
A. Insufficiency of Evidence
Relying primarily on People v. Bigelow (1984) 37 Cal.3d 731, defendant
asserts that the financial gain special circumstance applies only when the victim’s
death was an essential prerequisite to the financial gain or the defendant had an
expectation that the murder was necessary to obtain the financial gain. He
contends the evidence is insufficient to support the finding that Nancy’s death was
an essential prerequisite to the financial gain or that he had an expectation that the
murder was necessary to obtain the financial gain.
Defendant’s reliance is misplaced. In People v. Bigelow, supra, 37 Cal.3d
at page 738, the jury found four special circumstances: murder for financial gain,
murder to avoid arrest or perfect an escape, murder while engaged in the
commission of a robbery, and murder in the course of a kidnapping. We held in
Bigelow that in the situation of multiple special circumstances, adopting a limiting
construction of the financial gain special circumstance was appropriate to avoid
overlap among the special circumstances. “In this context, we believe the court
should construe special circumstance provisions to minimize those cases in which
multiple circumstances will apply to the same conduct, thereby reducing the risk
that multiple findings on special circumstances will prejudice the defendant. Such
a limiting construction will not prejudice the prosecution, since there will remain
at least one special circumstance – either financial gain or felony murder –
applicable in virtually all cases in which the defendant killed to obtain money or
other property. We adopt a limiting construction under which the financial gain
special circumstance applies only when the victim’s death is the consideration for,
or an essential prerequisite to, the financial gain sought by the defendant.” (Id. at
People v. Howard (1988) 44 Cal.3d 375, and in People v.
Noguera, supra, 4 Cal.4th 599, this court held that the limiting construction of the
financial gain special circumstance of People v. Bigelow, supra, 37 Cal.3d at page
751, does not apply when there is no overlap among the special circumstances
actually charged. “Bigelow’s formulation should be applied when it is important
to serve the purposes underlying that decision, but that it is not intended to restrict
construction of ‘for financial gain’ when overlap is not a concern.” (People v.
Howard, supra, at p. 410, original italics.) When, as in Howard, Noguera, and
this case, only one special circumstance is charged, there is no risk of multiplicity
of special circumstances, and thus the limiting construction of Bigelow does not
apply. (People v. Noguera, supra, at p. 635; People v. Howard, supra, at p. 410.)
In the absence of overlap among the charged special circumstances, “the
relevant inquiry is whether the defendant committed the murder in the expectation
that he would thereby obtain the desired financial gain.” (People v. Howard,
supra, 44 Cal.3d at p. 409, fn. omitted.) It is not required that the murder be
committed exclusively or even primarily for financial gain. (People v. Jackson,
supra, 13 Cal.4th at p. 1229; People v. Noguera, supra, 4 Cal.4th at p. 636.) Nor,
contrary to defendant’s argument, is there any requirement that the killing be the
only means of obtaining the financial gain. The standard is whether the “purpose”
of the murder was to obtain financial gain, “whether or not achievable.” (People
v. Howard, supra, at p. 410, fn. 10.)
Also off point is defendant’s argument that if the Bigelow limiting
construction precludes robbery and burglary from forming the basis of the
financial gain special circumstance, his conviction for grand theft must likewise
preclude the jury from also finding the financial gain special circumstance
allegation true. As we have explained, however, the Bigelow limiting construction
applies only when there are overlapping special circumstances charged, something
that does not exist here. The same evidence can be used to prove both the crime of
theft and the financial gain special circumstance when, as here, the evidence
shows defendant’s expectation of financial gain at the time of the murder.
In determining the validity of a challenge to a criminal conviction on the
ground of insufficient evidence, this court reviews “ ‘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.’ [Citations.] The same standard applies to special circumstance
allegations.” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
The evidence here is sufficient to support the jury’s finding. Just before she
left California for South Carolina with defendant, murder victim Nancy closed out
her bank accounts, obtaining $10,500 in cash and $2,500 in the form of a money
order. Within a day or two of her disappearance, defendant arranged for Lisa
Moody (the woman to whom defendant proposed marriage shortly after his
marriage to Nancy) to convert $5,000 into a cashier’s check payable to his
stepfather. Defendant then opened a bank account in South Carolina and there
deposited Nancy’s $2,500 money order. He thereafter sold Nancy’s clothing,
personal possessions, horse, horse trailer, truck and Corvette. From this evidence,
a reasonable jury could find beyond a reasonable doubt that defendant killed
Nancy with an expectation of financial gain.
Defendant contends the financial gain special circumstance is
unconstitutionally overbroad because it does not permit the jury to make a
principled distinction between those who deserve the death penalty and those who
do not. He argues that California’s financial gain special circumstance would
apply to any murder “where there is any possibility of a financial effect upon a
defendant.” We have previously rejected this claim. (People v. Noguera, supra, 4
Cal.4th at p. 636; People v. Edelbacher (1989) 47 Cal.3d 983, 1025.) We do again
C. Inadequate Instruction Claim
The trial court instructed the jury that to find the special circumstance true
the jury must find that the murder was intentional, that it was carried out for
financial gain, and that defendant believed the death would result in financial gain.
(CALJIC No. 8.81.1.) Defendant challenges the instruction as unconstitutionally
vague. As defendant concedes, we have in the past upheld an identical instruction
(People v. Jackson, supra, 13 Cal.4th at pp. 1228-1229) and we have repeatedly
held that the instruction in the statutory language is proper (e.g., People v. Padilla
(1995) 11 Cal.4th 891, 934).
Without merit is defendant’s claim that his trial counsel failed to provide
constitutionally adequate representation because counsel’s admission of the
commission of the grand theft also conceded the truth of the special circumstance
allegation. The special circumstance instruction, in addition to requiring a finding
of intent to kill, required that the murder was carried out for financial gain and that
defendant believed the death would result in such gain. None of these elements is
an element of theft.
We have in the past rejected defendant’s argument that a trial court
commits prejudicial error by instructing in the language of CALJIC No. 2.51 that
motive is not an element of the crime charged. There is no reasonable likelihood
that the jury would have applied the motive instruction to the special circumstance
allegation. (People v. Noguera, supra, 4 Cal.4th at p. 637.)
D. Vagueness and Ex Post Facto Claims
Defendant challenges the financial gain special circumstance as vague,
arguing that it violates due process because persons of common intelligence must
necessarily guess at its meaning. We have in the past rejected a similar challenge.
In People v. Howard, supra, 44 Cal.3d at page 410, this court held that “financial
gain” is not a technical term, obviating any need for further refinement of the
phrase absent a showing of confusion resulting from use of the term. We thus
reject defendant’s claim that the financial gain special circumstance is
impermissibly vague or overbroad on the ground that persons must guess at its
meaning. (People v. Edelbacher, supra, 47 Cal.3d at p. 1025.)
We also reject defendant’s contention that the financial gain special
circumstance is unconstitutionally vague on the ground that a defendant would
have no reason to be on notice or understand that the adoption of the 1978 death
penalty law changed the definition of financial gain contained in the 1977 law that
it superseded. The 1977 financial gain special circumstance provided: “The
murder was intentional and was carried out pursuant to agreement by the person
who committed the murder to accept a valuable consideration for the act of murder
from any person other than the victim . . . .” (Stats. 1977, ch. 316, § 9, p. 1257.)
The 1978 financial-gain special-circumstance provision reads: “The murder was
intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).)
Defendant’s contention is belied by a comparison of the statutory language. In
any event, the murder in this case was committed in 1982.
Defendant further contends that the application of the financial gain special
circumstance here would have the unconstitutional effect of an ex post facto law.
He argues that this court’s decisions after People v. Bigelow, supra, 37 Cal.3d 731,
cannot be retroactively applied to expand the financial gain special circumstance.
He claims this is so because later judicial construction of the statute was
“unexpected and indefensible by reference to the law which had been expressed
prior to the conduct in issue.” (Bouie v. City of Columbia (1964) 378 U.S. 347,
354.) We reject defendant’s contention.
The due process clause, not the ex post facto clause, bars retroactive
application of a judicial construction of a criminal statute that is unexpected and
indefensible by reference to the law expressed before the conduct in issue.
(People v. Martinez (1999) 20 Cal.4th 225, 238.)
We reject defendant’s claim that the due process clause requires application
of what defendant characterizes as the “narrow construction as stated in People v.
Bigelow.” Defendant killed Nancy in 1982, two years before this court’s 1984
decision in Bigelow. Accordingly, he cannot argue that the Bigelow construction
existed at the time the crime at issue here was committed.
E. Constitutionality of Death Penalty Statute
Defendant challenges the constitutionality of the death penalty law on the
ground it has so many special circumstances that it does not perform the
constitutionally required function of narrowing sufficiently to distinguish cases in
which the death penalty is properly imposed from those in which it is not. We
have repeatedly rejected this challenge. (E.g., People v. Lewis (2001) 25 Cal.4th
610, 676; People v. Mendoza, supra, 24 Cal.4th at pp. 191-192.)
V. PENALTY PHASE
A. Rebuttal Evidence
After defendant introduced mitigating evidence of his good conduct in jail,
the prosecution called as a rebuttal witness a jailhouse informant, Clint Williams,
who testified about defendant’s plan to escape from jail. Williams further
testified, over defense objection, that defendant admitted killing someone whose
body was then buried in an orchard in another state. Defendant contends the trial
court should not have admitted the latter testimony.
Evidence offered by the prosecution in rebuttal “ ‘is restricted to evidence
made necessary by the defendant’s case in the sense that he has introduced new
evidence or made assertions that were not implicit in his denial of guilt.’ ”
(People v. Daniels (1991) 52 Cal.3d 815, 859.) The testimony concerning
defendant’s escape plan was proper because it countered defendant’s new
evidence of his good conduct in jail. But Williams’s testimony that defendant
admitted killing Nancy and burying her body was improper rebuttal. It did not
counter new evidence introduced by defendant; nor did defendant’s penalty phase
case set forth assertions not implicit in the denial of guilt.
The error, however, was not prejudicial. Williams testified in rebuttal at
the penalty phase, not the guilt phase, of the trial. By that time, the jury had
already convicted defendant of Nancy’s murder and found the truth of the
financial gain special circumstance. Williams’s testimony was also cumulative of
the testimony of Richard Elander and of Jeanne Meskell that defendant told them
he had killed Nancy and disposed of her body. Thus, it is not reasonably likely
that the jury would have reached a penalty phase verdict more favorable to
defendant without Williams’s testimony. (People v. Daniels, supra, 52 Cal.3d at
B. Claims of Prosecutorial Misconduct
Defendant cites four instances of alleged misconduct by the prosecutor
during his penalty phase closing argument. By not objecting, defendant did not
preserve these claims for appeal. (People v. Morales (2001) 25 Cal.4th 34, 43-44.)
Had the claims been preserved, as we shall explain, they would lack merit.
This court recently set forth the constitutional standards governing
prosecutorial misconduct. “A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial with such
unfairness as to make the conviction a denial of due process. Conduct by a
prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the jury.”
(People v. Morales, supra, 25 Cal.4th at p. 44.) Here, defendant has not made
such a showing. Nor has defendant shown “a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
1. Weighing process
During closing argument, the prosecutor reminded the jury that defendant
killed Nancy for financial gain. He then stated: “And I would ask every one of
you to think . . . if any one of you deliberately took a human life for a few
thousand dollars . . . would you expect that a jury of your peers would impose the
lesser of two sentences here? Just in your own experience, is that what you would
expect? Do you think the good in your own lives would morally outweigh that
type of crime? That’s one of the factors that can be considered.” (Italics added.)
Defendant contends this argument was grossly misleading and a
misstatement of the law. He asserts that the italicized statement diverted the jury’s
attention away from the background and character of the defendant to the jurors’
background and character. We find no misconduct.
The prosecutor’s statement was coupled with the remark that the moral
weight of taking a life for financial gain is one factor for the jury to consider. That
was an appropriate consideration, because it is a circumstance of the capital crime.
(§ 190.3, factor (a).) Nor did the statement prevent the jury from making an
individualized sentencing determination. The determination of the personal
culpability of a defendant cannot be made in a vacuum divorced from social
standards or the experiences and morality of others; it is to reflect a reasoned
moral response to the defendant’s background, character and crime. (Penry v.
Lynaugh (1989) 492 U.S. 302, 319.) In addition, the argument of defense counsel
and the trial court’s instructions to the jury directed the jury to consider the
aggravating as well as the mitigating circumstances in relation to defendant’s
2. Victim impact evidence
During closing argument, the prosecutor referred to Nancy’s family’s desire
to find her body and give her a decent burial because “it’s a way of moving on for
people.” The prosecutor also referred to the testimony of Nancy’s daughter
describing her close relationship with her mother and the traumatic effect of losing
her mother. Defendant characterizes these comments by the prosecutor as
misconduct. We disagree.
People v. Fierro (1991) 1 Cal.4th 173, 236, this court held that a
“positive reference to the status of the victim and the effect of his loss on friends,
loved ones and the community as a whole” is admissible “under Payne v.
Tennessee [(1991)] 501 U.S. , and section 190.3, factor (a).”
The prosecutor’s comments here were well within the legally permissible
bounds of argument, because they described the effect Nancy’s death had on her
father and her daughter.
We also reject defendant’s contention that allowing the prosecutor’s
remarks here renders section 190.3, factor (a) unconstitutionally vague. That
factor permits the introduction into evidence of the “circumstances of the crime of
which the defendant was convicted in the present proceeding . . . .” Defendant
concedes that the United States Supreme Court rejected a vagueness challenge to
factor (a) in Tuilaepa v. California (1994) 512 U.S. 967, because the phrase
“circumstances of the crime” has a “common-sense core of meaning.” (Id. at
We also disagree with defendant that the prosecutor’s remarks here were
unduly prejudicial. (People v. Edwards (1991) 54 Cal.3d 787, 835-836.) The
remarks were brief and accurate statements of testimony admitted at the guilt
3. Lack of remorse and future dangerousness
In his closing argument, the prosecutor said: “The callousness and lack of
remorse during the commission of this offense that the defendant exhibited is an
aggravating factor. It goes beyond just the essential constituents of a first degree
murder. The callousness, the cruelty.” To illustrate defendant’s callousness, the
prosecutor mentioned that defendant was present when Nancy said goodbye to her
family, knowing he intended to kill Nancy; and that he gave Nancy’s personal
property to his girlfriend Lisa within hours of Nancy’s death. The prosecutor
continued: “That callousness, the lack of remorse that he exhibited at that time
goes beyond the norm.”
the prosecutor’s comments were misconduct because
they improperly treated lack of remorse as an aggravating factor. We disagree.
The prosecutor’s comments focused on the callousness of defendant’s acts and
lack of remorse near the time of the murder. Such lack of remorse is a
circumstance of the murder that may be argued as an aggravating factor. (People
v. Ochoa (2001) 26 Cal.4th 398, 449.) The rule on which defendant relies, that a
prosecutor cannot argue remorse as an aggravating factor but as relevant to
countering a claim of remorse as a mitigating factor (see People v. Mendoza,
supra, 24 Cal.4th at p. 187), applies when the absence of remorse is argued other
than in the context of the murder.
Defendant further asserts that in closing argument the prosecutor
improperly argued as an aggravating factor that defendant had a propensity for
future dangerousness. After saying that defendant used his intelligence and
charisma to manipulate others, the prosecutor briefly discussed defendant’s
manipulation of various people who played a role in this case, including Richard
Elander, Bergin Mosteller, and Bruce Gant; the prosecutor also mentioned the
testimony of the jailers who described defendant as a good prisoner. The
prosecutor then pointed out to the jury: “This is not aggravating evidence. It’s
only evidence in rebuttal of what they presented of his good character.” Thus,
contrary to defendant’s assertion, the prosecutor did not argue future
dangerousness as an aggravating factor.
4. Claim that mitigating evidence was argued to be aggravating
prosecutor committed misconduct by arguing that
evidence introduced in mitigation should be considered aggravating. Defendant’s
assertion that the prosecutor improperly argued future dangerousness we rejected
above. We also reject his claim that the prosecutor improperly argued that the
evidence of defendant’s being caring demonstrated that he was manipulative, and
that the evidence of defendant’s promise as a youth showed that defendant had no
excuse for the murder. This is what the record shows: The prosecutor argued to
the jury that the mitigating evidence presented by the defendant was not in fact
mitigating, and he simply placed such evidence in the broader factual context of
the case. Such argument is allowed. (People v. Sims (1993) 5 Cal.4th 405, 464.)
C. Constitutionality of CALJIC No. 8.88
The trial court gave the jury a modified version of CALJIC No. 8.88. The
instruction told the jury that in deciding between the death penalty and life in
prison without the possibility of parole it should take into account and be guided
by the aggravating and mitigating circumstances. The instruction ends with this
statement: “To return a judgment of death, each of you must be persuaded that the
aggravating circumstances are so substantial in comparison with the mitigating
circumstances that it warrants death instead of life without parole.”
Defendant challenges the instruction on four grounds, each of which he
concedes this court has previously rejected. The claim that the words “so
substantial” renders the instruction vague was rejected in People v. McPeters (1992)
2 Cal.4th 1148, 1194. In People v. Breaux (1991) 1 Cal.4th 281, 316, we rejected a
claim that the term “warrants” is too overbroad and permissive. In People v. Mickey
(1991) 54 Cal.3d 612, 701-702, we rejected the argument that the instruction should
state that the prosecution has the burden of persuasion beyond a reasonable doubt.
And in People v. Bolden (2002) 29 Cal.4th 515, 566, we rejected the claim that
before returning a verdict of death the jury must find beyond a reasonable doubt that
the aggravating circumstances outweigh the mitigating circumstances.
VI. AUTOMATIC MOTION TO MODIFY
Judge John Schatz presided over defendant’s trial. After the jury returned a
verdict of death, the judge granted the automatic motion to modify that verdict, and he
reduced the penalty to life without possibility of parole. (§ 190.4, subd. (e).) The
prosecution appealed. The Court of Appeal reversed, and remanded the case to the
trial court for the limited purpose of redetermining the motion. (People v. Crew
(1991) 1 Cal.App.4th 1591, 1609.) Because Judge Schatz was unavailable, the matter
was assigned to Judge Ahern. (People v. Lewis (1990) 50 Cal.3d 262, 287 [different
judge may decide automatic motion after appeal if trial judge is unavailable].)
After twice reviewing the transcripts of the trial, reading the Court of Appeal
decision, and hearing argument of counsel for both parties, Judge Ahern denied the
automatic motion to modify the penalty verdict. His findings as to each of the
aggravating and mitigating factors led him to conclude that the weight of the evidence
supported the jury’s finding that the aggravating circumstances outweighed the
mitigating circumstances, and that the verdict was not contrary to the law or the
Defendant faults Judge Ahern’s ruling for not taking into consideration
Judge Schatz’s previous findings in the prior ruling on the automatic motion to
modify. We find no error. The Court of Appeal remanded the case to the trial
court for the limited purpose of redetermining of the motion. Section 190.4,
subdivision (e) requires the judge ruling on the motion to review the evidence and
to take into account and be guided by the statutory aggravating and mitigating
evidence. Judge Ahern did so.
Defendant next asserts that in reading the Court of Appeal decision before
ruling on the motion, Judge Ahern got guidance from that decision, which
defendant maintains improperly reviewed de novo the aggravating and mitigating
factors and described Nancy as having been executed in a callous and gruesome
manner. We reject the contention. When an appellate court remands a matter to
the trial court for redetermination of a matter, the trial judge should read the
appellate decision to determine the reviewing court’s reasons and holding. In
addition, Judge Ahern here stated that he reviewed the evidence presented to the
jury and did not consider any evidentiary matter that was not before the jury.
We also reject defendant’s contention that Judge Ahern erred when, in
denying the modification motion, he said that “the aggravating circumstances . . .
outweigh the mitigating circumstances,” instead of saying that the evidence in
aggravation was “so substantial” in comparison to the mitigating evidence that
death was the appropriate penalty. Judge Ahern used the language of section
190.4, subdivision (e), which says that the trial court should determine whether the
jury properly found that “the aggravating circumstances outweigh the mitigating
circumstances.” “As a general rule, we presume that the trial court has properly
followed established law.” (People v. Diaz, supra, 3 Cal.4th 495, 567.) Here we
find no indication that the trial court did not understand or properly apply the
controlling legal principles in ruling on the motion.
VII. CONSTITUTIONALITY OF DEATH PENALTY STATUTE
Defendant challenges various aspects of California’s death penalty law as
violating the federal Constitution. We have previously rejected these challenges
and do so here again. A summary of the pertinent holdings follows.
The federal Constitution does not require that sentencing factors be
identified as aggravating or mitigating. (People v. Davenport (1995) 11 Cal.4th
1171, 1229.) The prosecution need not prove beyond a reasonable doubt that
aggravating factors outweigh mitigating factors, and the jury need not find beyond
a reasonable doubt that death is the appropriate punishment. (People v. Bolden,
supra, 29 Cal.4th at p. 566.) Not requiring jury unanimity on an aggravating
factor does not render our capital sentencing scheme unconstitutional (People v.
Bolin (1998) 18 Cal.4th 297, 335-336); similarly, the jury need not make findings
on aggravating factors (People v. Bolden, supra, at p. 566). Nor do our jury
instructions require jury unanimity on mitigating factors or mislead a jury into
believing that such unanimity is required. (People v. Breaux, supra, 1 Cal.4th at
pp. 314-315.) The language in section 190.3, factor (d) referring to “extreme”
mental or emotional disturbance, in factor (f) about reasonable belief in
justification or extenuation, in factor (g) concerning substantial domination by
another, and in factor (h) regarding impaired capacity does not preclude full
consideration of mitigating evidence. (See People v. Turner (1994) 8 Cal.4th 137,
208-209; People v. Wright (1990) 52 Cal.3d 367, 443-444.) The provisions of
factor (k) allowing the jury to consider any “other circumstance which extenuates
the gravity of the crime” allow the jury to fully consider all mitigating evidence.
(People v. Jones (1997) 15 Cal.4th 119, 190.) The law is not unconstitutional
because it fails to sufficiently narrow the class of defendants eligible for the death
penalty (People v. Bolden, supra, at p. 566), because of prosecutorial discretion
(People v. Crittenden, supra, 9 Cal.4th at p. 152), or because intercase
proportionality review is not required (People v. Bolden, supra, at p. 566).
Finally, the United States Supreme Court’s decision in Apprendi v. New Jersey
(2000) 530 U.S. 466, does not undermine the constitutionality of our capital
sentencing scheme. (People v. Ochoa, supra, 26 Cal.4th at pp. 453-454.)
VIII. CUMULATIVE ERROR
Defendant contends the cumulative effect of errors committed at his trial
compels reversal. The few errors that occurred in defendant’s trial, considered
individually or collectively, were not prejudicial.
The judgment is affirmed.
GEORGE, C. J.
CONCURRING OPINION BY MORENO, J.
I concur with the majority under the compulsion of People v. Howard
(1988) 44 Cal.3d 375, but write separately to urge this court to reconsider its
holding in Howard that the limiting construction placed on the financial gain
special circumstance in People v. Bigelow (1984) 37 Cal.3d 721, 751, applies only
when necessary to avoid overlap of multiple special-circumstance allegations.
The meaning of the financial gain special circumstance should not vary depending
upon the number of special circumstances alleged. In the present case, where only
one special circumstance is charged, the financial gain special circumstance has
the strong potential to be applied too broadly and may offer an easy opportunity
for overcharging by the prosecution. The Eighth Amendment of the United States
Constitution requires that a special circumstance “must genuinely narrow the class
of persons eligible for the death penalty, and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others found
guilty of murder.” (Zant v. Stephens (1983) 462 U.S. 862, 877, fn. omitted.) I am
concerned that the financial gain special circumstance as interpreted in Howard
and applied here does not meet this standard.
At the time of its inception in 1977, the financial gain special circumstance
applied only to contract killings. (People v. Bigelow, supra, 37 Cal.3d at p. 751.)
The statute required that, “[t]he murder was intentional and was carried out
pursuant to an agreement by the person who committed the murder to accept
valuable consideration for the act of murder from any person other than the
victim.” (Pen. Code, former § 190.2, subd. (a), as added by Stats. 1977, ch. 316, §
9, p. 1257.)1 The current version of the statute, enacted in 1978 by initiative,
eliminated this “accept[ance] [of] valuable consideration” language. (Ibid.) It
currently requires that, “[the] murder was intentional and carried out for financial
gain.” (§ 190.2 subd. (a)(1).) In response to the change in language, we
increasingly have interpreted the provision broadly even though there is “little to
guide us in the construction of the financial gain special circumstance. No
legislative history illumines the adoption of this special circumstance.” (People v.
Bigelow, supra, 37 Cal.3d at p. 751.)
As the majority correctly notes, we have developed two interpretations of
the financial gain special circumstance. In 1984, we adopted a narrow
construction of the financial gain special circumstance in a case in which multiple
special circumstances were alleged “to minimize those cases in which multiple
special circumstances will apply to the same conduct.” (Bigelow, supra, 37 Cal.3d
at p. 751.)
Four years later in Howard, we interpreted the financial gain special
circumstance more broadly to require only that the “purpose” of the murder have
been for financial gain. (People v. Howard, supra, 44 Cal.3d at p. 410, fn. 10.)
This standard expanded Bigelow’s formulation of the financial gain special
circumstance to “cover a broad range of situations” when only one special
circumstance is charged and overlap of multiple special circumstances is not a
concern. (People v. Howard, supra, 44 Cal.3d at p. 410.) Justice Broussard, who
authored the majority opinion in Bigelow, dissented from this broader
interpretation because “it gives a dual meaning to the phrase ‘for financial gain.’ ”
1 Unless otherwise noted, all citations are to the Penal Code.
(Id. at p. 447 (conc. & dis. opn. of Broussard, J.).) Justice Broussard’s concern,
which I share, is that this second interpretation allows the financial gain special
circumstance to be interpreted too broadly where one special circumstance is
As the majority states, subsequent to Howard we continued to refine the
financial-gain special-circumstance standard. (Maj. opn, ante, at p. 32.) In People
v. Noguera (1992) 4 Cal.4th 599, 636, and in People v. Jackson (1996) 13 Cal.4th
1164, 1229, we clarified that the murder need not be committed exclusively, or
even primarily, for financial gain. Taken together, these cases have opened the
door for the financial gain special circumstance to be applied where the defendant
gains financially in any respect from the murder, even if financial gain is not a
motive for the killing.
In the instant case, the prosecution did not offer direct evidence that
defendant killed the victim for the purpose of financial gain. Instead, the facts
indicate defendant first spoke of killing the victim in May, before the couple was
married or the victim had decided to move with him to South Carolina. Together
these facts show defendant thought of killing Nancy at least two months before
she closed her accounts and withdrew a large amount of cash. Although defendant
liquidated the victim’s assets after her death, it is debatable that these facts are
sufficient from which to conclude that the murder was carried out for financial
Today, the majority expands the application of the financial gain special
circumstance to include a new category of cases beyond the murder-for-hire or
gain-from-insurance-proceeds schemes in People v. Howard, supra, 44 Cal.3d
375, People v. Noguera, supra, 4 Cal.4th 599, and People v. Jackson, supra, 13
Cal.4th 1164. The effect of this expansion is that it allows prosecutors to allege
the financial gain special circumstance in theft cases in which the evidence falls
short of meeting the standard for the robbery special circumstance, resulting in an
overlap among the special circumstances. Such an interpretation fails to narrowly
define a set of cases to differentiate the special situation in which death is
warranted. (Zant v. Stephens, supra, 462 U.S. at p. 877.) Instead, as in the present
case, evidence that shows defendant sold the victim’s belongings after the murder
is sufficient to prove that the killing was carried out for the purpose of financial
gain. For these reasons, the financial gain special circumstance, as applied today,
is too broad. The narrow construction adopted in People v. Bigelow, supra, 37
Cal.3d at page 751, should remain the standard used to separate those cases that
warrant a death sentence regardless of the number of special circumstances
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Crew
Original Appeal XXX
Opinion No. S034110
Date Filed: August 25, 2003
County: Santa Clara
Judge: John Schatz, Jr., and Robert P. Ahern
Attorneys for Appellant:
Lynne S. Coffin, State Public Defender, under appointment by the Supreme Court, and Andrew S. Love,
Assistant State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass
and Dane R. Gillette, Assistant Attorneys General, and Peggy S. Ruffra, Deputy Attorney General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Andrew S. Love
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Peggy S. Ruffra
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
|1||The People (Respondent)|
Represented by Attorney General - San Francisco Office
Peggy S. Ruffra, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Crew, Mark Christopher (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Andrew S. Love, Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|3||Crew, Mark Christopher (Appellant)|
San Quentin State Prison
Represented by Lynne S. Coffin
Coffin & Love
P. O. Box 192935
San Francisco, CA
|4||Crew, Mark Christopher (Appellant)|
San Quentin State Prison
Represented by Andrew S. Love
Coffin & Love
P. O. Box 192935
San Francisco, CA
|Aug 25 2003||Opinion: Affirmed|
|Jul 22 1993||Judgment of death|
|Jul 27 1993||Filed certified copy of Judgment of Death Rendered|
|Jun 26 1997||Counsel appointment order filed|
Andrew S. Love Is appointed as Lead Counsel, and Lynne S. Coffin Is appointed as Assoc. Counsel, to represent Applt on His A.A., Including Any Related Habeas Proceedings.
|Aug 7 1997||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Aug 7 1997||Filed:|
"Amended" Decl of Service of Ext. Request.
|Aug 13 1997||Compensation awarded counsel|
|Aug 14 1997||Extension of Time application Granted|
To Applt To 10-6-97 To request Corr. of Record.
|Oct 3 1997||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Oct 7 1997||Extension of Time application Granted|
To Applt To 12-5-97 To request Corr. of Record.
|Dec 3 1997||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Dec 5 1997||Extension of Time application Granted|
To Applt To 2-3-98 To request Corr. of Record.
|Jan 29 1998||Application for Extension of Time filed|
By Applt to request Record correction
|Feb 3 1998||Extension of Time application Granted|
To 4-6-98 To request Record correction
|Apr 2 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Apr 6 1998||Extension of Time application Granted|
To Applt To 6-5-98 To request Corr. of Record. no further Extensions of time Are Contemplated.
|Jun 1 1998||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 8 1998||Extension of Time application Granted|
To 7-6-98 To request Record correction no further Extensions of time will be granted
|Jun 18 1998||Received:|
Copy of Applt's request to correct, Augment the Record, Examine Sealed Transcripts & Settle the Record (13 Pp.)
|Jun 24 1998||Compensation awarded counsel|
|Jun 11 1999||Record on appeal filed|
C-25 (6,115 Pp.) and R-51 (5,213 Pp.) (Includes Material Under Seal). Clerk's Transcript includes 2,299 pages of Juror Questionnaires.
|Jun 11 1999||Appellant's opening brief letter sent, due:|
|Jun 16 1999||Compensation awarded counsel|
|Jul 13 1999||Filed:|
Motion for Order Granting Leave to Preserve Testimony of Critical Witnesses
|Jul 20 1999||Change of Address filed for:|
Atty General - S.F. Office.
|Jul 20 1999||Application for Extension of Time filed|
To file Aob.
|Jul 21 1999||Extension of Time application Granted|
To 9-20-99 To file AOB
|Aug 6 1999||Opposition filed|
By Resp to motion to Depose Witnesses.
|Sep 17 1999||Application for Extension of Time filed|
To file Aob.
|Sep 17 1999||Extension of Time application Granted|
To 11/19/99 To file Aob.
|Nov 10 1999||Order filed:|
Appellant's "Motion for Order Granting Leave to Preserve Testimony of Critical Witness" is denied. Appellant may file a petition for a writ of habeas corpus, raising the proposed claim to which this motion relates, immediately. A second habeas corpus petition raising any remaining claims will not be barred as successive as long as it is filed in a timely manner. Mosk, J., is of the opinion the motion should be granted.
|Nov 17 1999||Application for Extension of Time filed|
To file Aob.
|Nov 18 1999||Extension of Time application Granted|
To 1/18/2000 To file Aob.
|Dec 1 1999||Compensation awarded counsel|
|Dec 20 1999||Note:|
Related H.C. Petn filed this Date, No. S084495.
|Jan 14 2000||Application for Extension of Time filed|
To file Aob.
|Jan 18 2000||Extension of Time application Granted|
To 3/20/2000 To file Aob.
|Jan 20 2000||Compensation awarded counsel|
|Mar 14 2000||Application for Extension of Time filed|
To file Aob.
|Mar 16 2000||Extension of Time application Granted|
To 5/19/2000 To file Aob.
|May 15 2000||Application for Extension of Time filed|
To file Aob.
|May 16 2000||Extension of Time application Granted|
To 7/18/2000 To file Aob.
|Jun 20 2000||Compensation awarded counsel|
|Jun 22 2000||Change of Address filed for:|
Atty Andrew Love and Lynne S. Coffin
|Jun 28 2000||Compensation awarded counsel|
|Jun 29 2000||Appellant's opening brief filed|
|Jul 7 2000||Filed:|
Confidential declaration of atty Andrew Love
|Jul 12 2000||Compensation awarded counsel|
|Jul 20 2000||Motion to withdraw as counsel filed|
by attys Andrew Love and Lynne Coffin.
|Jul 20 2000||Motion for appointment of counsel filed|
State Public Defender's motion for appointment as counsel for applt.
|Jul 27 2000||Application for Extension of Time filed|
to file respondent's brief.
|Jul 31 2000||Extension of Time application Granted|
to 9-27-2000 to file resp's brief.
|Aug 9 2000||Order filed:|
Good cause appearing, the applic. of appointed lead and assoc. counsel for permission to withdraw as atty of record for applt Mark C. Crew, filed 7/20/2000, is granted. The order appointing Andrew Love and Lynne S. Coffin as lead and assoc. counsel of record, respectively, for applt Mark C. Crew, filed 6/26/97, is hereby vacated. The State PD is hereby appointed as atty of record to represent applt Mark C. Crew for both the direct appeal and related state habeas corpus/executive clemency proceedings, in the above auto. appeal now pending in this court.
|Sep 29 2000||Application for Extension of Time filed|
To file resp's brief. (2nd request)
|Oct 2 2000||Extension of Time application Granted|
To 11/27/2000 to file resp's brief.
|Oct 10 2000||Counsel's status report received (confidential)|
|Nov 22 2000||Application for Extension of Time filed|
To file resp's brief. (3rd request)
|Nov 29 2000||Extension of Time application Granted|
To 1/26/2001 to file resp's brief.
|Dec 6 2000||Counsel's status report received (confidential)|
from State P.D.
|Jan 29 2001||Application for Extension of Time filed|
To file resp's brief. (4th request)
|Feb 5 2001||Extension of Time application Granted|
To 3/27/2001 to file resp's brief.
|Feb 6 2001||Counsel's status report received (confidential)|
from State P.D.
|Mar 30 2001||Application for Extension of Time filed|
To file Respondent's Brief. (5th request)
|Apr 10 2001||Extension of Time application Granted|
To 5/29/2001 to file Respondent's Brief.
|May 29 2001||Application for Extension of Time filed|
To file respondent's brief. (6th request)
|Jun 1 2001||Extension of Time application Granted|
To 7/30/2001 to file respondent's brief.
|Jul 5 2001||Counsel's status report received (confidential)|
from State P.D.
|Jul 30 2001||Application for Extension of Time filed|
To file resp.'s brief. (7th request)
|Aug 2 2001||Extension of Time application Granted|
To 8/13/2001 to file resp.'s brief. No further extensions of time are contemplated.
|Aug 10 2001||Respondent's Brief filed. (125 Pp.)|
|Aug 29 2001||Application for Extension of Time filed|
To file reply brief. (1st request)
|Aug 31 2001||Extension of Time application Granted|
to 10-29-2001 to file reply brief.
|Sep 14 2001||Counsel's status report received (confidential)|
from State P.D.
|Oct 22 2001||Application for Extension of Time filed|
To file reply brief. (2nd request)
|Oct 24 2001||Extension of Time application Granted|
To 12/28/2001 to file reply brief.
|Nov 14 2001||Counsel's status report received (confidential)|
from State P.D.
|Nov 19 2001||Counsel's status report received (confidential)|
(supplemental) from State P.D.
|Dec 21 2001||Request for extension of time filed|
To file reply brief. (3rd request)
|Dec 27 2001||Extension of time granted|
To 2/26/2002 to file reply brief. Asst. State PD Love anticipates filing the brief by 2/26/2002. No further extension is contemplated.
|Jan 11 2002||Counsel's status report received (confidential)|
from State P.D.
|Feb 19 2002||Counsel's status report received (confidential)|
from State P.D.
|Feb 19 2002||Request for extension of time filed|
To file reply brief. (4th request)
|Feb 21 2002||Extension of time granted|
To 3/28/2002 to file reply brief. Asst. State PD Love anticipates filing the brief by 3/28/2002. No further extension will be granted.
|Mar 28 2002||Appellant's reply brief filed|
|Apr 19 2002||Counsel's status report received (confidential)|
|May 15 2002||Motion filed|
by applt. to unseal records.
|Jun 12 2002||Order filed|
Good cause appearing, appellant's "Motion to Unseal Records" filed in this court on May 15, 2002, is granted. The clerk is directed to unseal, and to transmit to appellant, copies of the following: pages 2062 through 2066 of the clerk's transcript, pages 2 through 17 of the reporter's transcript of proceedings on September 13, 1988, and pages 18 through 43 of the reporter's transcript of proceedings on September 16, 1988.
|Jun 26 2002||Related habeas corpus petition filed (concurrent)|
|Apr 7 2003||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the May calendar, to be held in S.F. the week of May 27, 2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has bee set for oral argument.
|Apr 30 2003||Case ordered on calendar|
5-29-03, 1:30pm, S.F.
|May 9 2003||Filed letter from:|
Appellant's counsel, dated 5/9/2003, re focus issues for oral argument.
|May 14 2003||Filed letter from:|
Respondent's counsel, dated 5/14/2003, re focus issues for oral argument.
|May 15 2003||Filed letter from:|
Appellant's counsel, dated 5/15/2003, re focus issues for oral argument.
|May 29 2003||Cause argued and submitted|
|Aug 25 2003||Opinion filed: Judgment affirmed in full|
OPINION BY: Kennard, J George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ. CONCURRING OPINION BY: Moreno, J.
|Sep 9 2003||Rehearing petition filed|
by appellant. (16 pp.)
|Sep 10 2003||Time extended to consider modification or rehearing|
to 11/21/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Oct 29 2003||Rehearing denied|
Petition for rehearing denied. Opinion modified. Moreno, J., is of the opinion the petition should be granted.
|Oct 29 2003||Opinion modified - no change in judgment|
|Oct 29 2003||Remittitur issued (AA)|
|Nov 5 2003||Received:|
Acknowledgment of receipt of remittitur.
|Feb 3 2004||Received letter from:|
U.S.S.C., dated 1/29/2004, advising cert petition filed as No. 03-8616.
|Apr 23 2004||Certiorari denied by U.S. Supreme Court|
|Jun 29 2000||Appellant's opening brief filed|
|Aug 10 2001||Respondent's Brief filed. (125 Pp.)|
|Mar 28 2002||Appellant's reply brief filed|