Supreme Court of California Justia
Docket No. S040527
People v. DePriest

Filed 8/9/07



Plaintiff and Respondent,



) Orange



Super. Ct. No. C-90616

Defendant and Appellant.

A jury convicted Timothy Lee DePriest (defendant) of the first degree

murder of a young woman named Hong Thi Nguyen. (Pen. Code, § 187, subd.

(a).)1 Defendant also was found guilty of robbery (§ 211) and attempted rape

(§§ 261, former subd. (2), now subd. (a)(2), 664), and of being a felon in the

possession of a concealable firearm. (§ 12021, former subd. (a), as amended by

Stats. 1983, ch. 1092, § 326.5, p. 4062; see now id., subd. (a)(1).) The jury

sustained special circumstance allegations that defendant committed the murder

while engaged in the commission of robbery and attempted rape. (§ 190.2, former

subd. (a)(17)(i) & (iii), now subd. (a)(17)(A) & (C).) Additional findings were

that defendant personally used a firearm (pistol) in committing the murder, the

robbery, and the attempted rape. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).)


All further statutory references are to the Penal Code except as otherwise



The evidence supporting the guilt verdict showed that the victim, Nguyen,

was left half-naked and mortally wounded in the trash area behind the shopping

center at which she worked in Garden Grove, Orange County. She was shot in the

head around 6:00 p.m. on December 17, 1989, and died a few hours later. She

appeared to have been sexually assaulted, and her car and purse were missing.

Circumstantial evidence implicated defendant, a parolee. He was visiting family

nearby at the time of the murder, he left California afterwards, and he was arrested

after committing new crimes in Missouri, including the attempted murder of a

police officer. Defendant possessed the murder weapon, as well as Nguyen’s car

and credit card, in Missouri.

After a penalty trial, the jury sentenced defendant to death. The trial court

denied the automatic motion to modify the death verdict. (§ 190.4, subd. (e)

(section 190.4(e)).) The court imposed and stayed a determinate sentence on the

noncapital felony counts. This appeal is automatic. (Cal. Const., art. VI, § 11,

subd. (a); § 1239, subd. (b).)

We find no prejudicial error at defendant’s trial. The judgment will be

affirmed in its entirety.


A. Prosecution Case

1. The Murder and Related Crimes

In December 1989, defendant was on parole in San Bernardino County. He

could not travel far from home or relocate without the permission of his parole

officer. Several times before December 17, defendant was denied permission to

move and transfer parole to Missouri. The reason was that he had not arranged for

proper transportation in the form of a plane, bus, or car ride.

Defendant’s girlfriend, Rhonda Lyon, last saw him in the second week of

December 1989, apparently in San Bernardino County. He said he wanted to visit


his uncle in Garden Grove, and then go to Missouri. Defendant confirmed these

plans several times over the phone between December 12 and 17.

The last time Lyon spoke to defendant in California was at 3:58 p.m. on

December 17, 1989, about two hours before the murder. He telephoned her from

Garden Grove, where he was staying with his uncle, Charles Brown, and Brown’s

roommate, Tony Goodwin. In his phone call with Lyon, defendant announced his

imminent departure to Missouri, and said he would either hitchhike or get money

from relatives. Defendant mentioned his family in Missouri, and said he knew the

trip would violate parole. Lyon knew of no source of income that defendant had at

the time.

The murder victim, Nguyen, worked at the Perfect Bride, a bridal shop next

door to the Thrifty Drug Store in Garden Grove. According to her employer,

Nguyen arrived at work at 5:00 p.m. on December 17, 1989. The parking lot

along the front and side of the store was full. She apparently parked her car — a

white Toyota MR2 — in the back. Nguyen called her family around 5:30 p.m.

She indicated that she was headed home, but planned to stop at the grocery store

first. She left work at some point before 6:00 p.m. She carried her purse and a

white-sequined cloth appliqué at the time.

At 7:05 p.m. on December 17, two employees discarded trash behind the

Thrifty Drug Store. One of them was Michael Elrod, the manager. Elrod testified

that near the dumpster, in a semi-enclosed alcove littered with debris, he saw a

young woman — Nguyen — on the ground. She was naked from the waist down,

and her sweater was pulled up onto her stomach. Her legs were slightly spread

apart. Foam bubbled from her mouth, and she was barely breathing. When

paramedics arrived and moved Nguyen’s head, Elrod saw a wound in her temple

and blood on the ground.


Police officers, including James Holder, arrived at the scene. Holder

accompanied Nguyen in the ambulance to the hospital. Hospital personnel gave

Holder a watch and jewelry retrieved from Nguyen.2 Meanwhile, at the crime

scene, $31 was found in Nguyen’s jeans. Her purse and car were gone.

That same evening, possibly around 6:00 o’clock, Brown and Goodwin

returned to their Garden Grove home after Christmas shopping. The home was

located a few blocks from the Thrifty Drug Store. Defendant, Brown’s nephew,

had been a houseguest for three days. When defendant arrived the first day, he

came by taxi and had no car. However, Goodwin testified that on the evening of

December 17, a white Toyota MR2 he had never seen before was parked outside.3

Inside the house, Goodwin noticed that defendant was sweating as he spoke

to Brown. Defendant then headed toward the Toyota outside. That was the last

time Goodwin saw either defendant or the car.


The jewelry found on Nguyen’s person did not include her 18-karat gold

wedding band. At trial, her husband could not account for its absence from her
finger. The ring apparently was never recovered, and its whereabouts after the
murder were not disclosed at trial.


Goodwin testified that because the parking lights were on, he assumed

someone occupied the Toyota, and that he communicated this belief when the
police later interviewed him. Still later, however, he realized he never saw anyone
inside the car. Goodwin also told the police that the car might have moved when
he and Brown pulled behind it in their car. Again, Goodwin questioned his initial
perception. The “movement” might have been caused by the reflection of his car’s
headlights onto the Toyota. Defendant’s uncle, Brown, testified for the defense
that Goodwin seemed fairly certain in talking with police that the white Toyota
MR2 was occupied when they saw it outside the house.


2. Events in Missouri after the Murder

Lyon, defendant’s girlfriend, heard from him two days after his last call

from California. He said he was in Missouri. He also told Lyon that, if the police

contacted her, she should not disclose his location or real name.

At 8:00 a.m. on December 19, 1989, two days after the murder, defendant

was seen in Springfield, Missouri with Nguyen’s white Toyota MR2 — a

stipulated fact. Defendant was parked outside his friend Johnny Forrester’s house,

cleaning the interior of the car. Defendant spent time with Forrester and with his

mother, Mary, and his uncle, Larry, who lived nearby. While driving Forrester in

the Toyota, defendant said it belonged to his girlfriend. He had the keys to the car.

Defendant gave Forrester a baby’s teething ring from the console that had

belonged to Nguyen and her child.

Over the next few days, defendant made statements suggesting he had good

reasons for moving East. On December 20, 1989, he told Forrester at a bar that he

would not go “back to California” or “to jail.” Defendant patted a handgun in his

waistband and showed it to Forrester. On December 23, after an encounter with

Missouri police described below, defendant and Forrester drove to the home of a

friend, Frank Moots. Defendant said he was “not going back” and would “shoot a

cop first.” He asked Moots to help paint the Toyota MR2 black. Defendant

removed the California license plates and stored the car in Moots’s garage.

Defendant used Nguyen’s credit card at Sears in Springfield. Multiple

charges were made on December 23, 1989, and appeared on a bill later sent to

Nguyen’s home. Defendant was asked for identification when he tried charging

items in the electronics department. He then left the store. The jury saw a

videotape of this transaction.

Defendant attracted police attention three times in Missouri. On December

20, 1989, the day after he arrived in Springfield, defendant triggered a police


chase, and eluded capture, after he refused to make a traffic stop while driving a

white Toyota. On December 23, 1989, another officer stopped defendant, his

friend Forrester, and a female companion in a Camaro following a suspicious

check-cashing incident outside of Springfield. After giving a false name and

exiting the car, defendant fled and eluded the officer who had made the stop, as

well as others who arrived at the scene.

Defendant’s most serious confrontation with Missouri police occurred on

December 28, 1989, and prompted his arrest. Officer Larry Robinson recognized

defendant on the street as a “suspect at large.” Defendant ran when he saw

Robinson. While repeatedly yelling “halt,” Robinson chased defendant over a

wall and fence, and into a parking lot and an alley. Robinson lost sight of

defendant, reported the chase on his radio, and approached a dumpster alcove.

Suddenly, defendant rose from behind the dumpster and shot Robinson, wounding

him. After defendant fired more rounds and ran down the street, other officers

arrived and captured him. They seized his firearm. It was the same weapon that

killed Nguyen, as discussed below.

3. The Murder Investigation

Criminalists with the police and sheriff’s departments examined the crime

scene in Garden Grove on December 17, 1989. Marsha MacWillie photographed

and collected physical evidence, and Kenny Wong collected biological evidence.

They found the white cloth appliqué that Nguyen had carried from work in a

parking space along the back wall of the shopping center. Inside the dumpster

alcove nearby, where Nguyen was found, there was one women’s shoe, a pair of

underpants, and a pair of women’s jeans that was turned inside out. Other items


included a .25-caliber bullet casing, shoe prints on paper debris, and hair and

blood specimens.4

Another criminalist, Elizabeth Thompson, analyzed the hair specimens to

determine whether they came from Nguyen or defendant. Thompson testified that

one of the recovered hairs was consistent with defendant’s pubic hair and

inconsistent with Nguyen’s pubic hair. The other crime-scene hairs, some with

bloody roots, were consistent with strands taken from Nguyen’s head.

Criminalist Mary Hong tested blood at the crime scene to determine

whether it came from Nguyen or defendant. At trial, Hong identified Nguyen as a

possible donor of the blood and excluded defendant.

Criminalist Sharon Krenz examined shoe prints found on paper debris in

the dumpster alcove and the Nike shoes that defendant wore when arrested in

Missouri. As described below, Krenz used an “overlay” method whereby she

compared plastic transparencies of the sole pattern on defendant’s shoes with

photographs of the crime scene specimens. Krenz testified that defendant’s shoes

were consistent with partial shoe prints found on a label sheet and a small square



The jury learned that both MacWillie and Wong saw the victim at the

hospital on December 17, 1989. MacWillie was there between 8:00 and 9:15 p.m.,
while Nguyen was still alive in the emergency room. With the help of a nurse,
MacWillie saw and photographed a white substance in Nguyen’s vagina that could
have been seminal fluid. As noted, it was the job of the other criminalist, Wong,
to preserve such biological evidence. At 1:00 a.m., less than one hour after
Nguyen died, Wong used cotton swabs to collect fluid in her vagina. Officer
Holder was present at the time. The record suggests that medical personnel had
inserted a catheter in Nguyen’s vagina, and cleaned the area, before Wong
performed the swabbing procedure. No evidence identifying fluids in Nguyen’s
vagina was introduced at trial.


MacWillie, who had processed the crime scene, examined Nguyen’s Toyota

MR2 for fingerprints after defendant’s arrest. The car was in police custody in

Missouri at the time. MacWillie lifted 27 sets of prints from the car, three of

which came from the exterior or trunk and were too faint, smudged, or

“unworkable” to analyze. As to the 24 workable prints, MacWillie testified that

13 of them were defendant’s, many of which were found in and around the

driver’s compartment. The 11 remaining prints were never identified. Eight of

them came from the hood of the car, and did not belong to defendant or Nguyen.

MacWillie found three unidentified prints inside the car, but could not exclude

defendant or Nguyen as the donor.

Criminalist Nathan Cross test-fired the gun that defendant used to shoot

Officer Robinson shortly before being arrested in Missouri. Defendant’s firearm

was a .25-caliber semiautomatic pistol. At trial, Cross identified it as the same

gun that had fired the bullet removed from Nguyen’s brain during the autopsy, as

discussed below.

4. Autopsy Results

Dr. David Katsuyama, a forensic pathologist, performed an autopsy and

described the results at trial. Nguyen sustained several premortem injuries. A

punch or other blunt force trauma caused bruising and swelling around the eyes,

discoloration on the forehead, and cuts inside the mouth from the victim’s own

teeth. Bruises and abrasions on the right knee and ankle, and on the left elbow,

probably were caused when those extremities struck the ground.

The external examination also disclosed dark residue on the soles of

Nguyen’s feet, indicating she had walked without shoes. Dirt on the victim’s

back, especially along one side of the torso, buttocks, and hip, suggested that she

had been dragged or pushed on the ground.


Internally, Dr. Katsuyama found hemorrhaging, or blood seepage, and

bruising in the walls of the vagina. The vaginal tissue also contained a small tear,

about one-quarter of an inch long. Such injuries occurred before death and were

consistent with sexual trauma or assault.

Discoloration on Nguyen’s neck indicated manual strangulation or that

external pressure had been applied. However, Dr. Katsuyama determined that the

cause of death was a gunshot wound to the head. The bullet entered the left

temple and was removed during the autopsy. The blast apparently caused the back

of the head to strike a hard surface and to bruise on contact.

B. Defense Case

Defendant denied committing the capital crime. In an effort to place the

blame elsewhere,5 the defense introduced the following evidence:


For context, we summarize the theory presented in the defense opening

statement at trial: Defendant was walking near the Thrifty Drug Store in Garden
Grove, when “Denny,” a transient defendant knew, drove up in a white Toyota
MR2 and told defendant to “get in.” When asked where he got the car, Denny said
it was “hot,” i.e., stolen. Defendant did not know that Denny had killed Nguyen in
order to steal the car. Denny offered to sell defendant the car so that he could
drive to Missouri. The pair stopped at defendant’s uncle’s house to get cash,
which was less than what Denny wanted for the car. They drove to Lake
Arrowhead, so that defendant could borrow money from his friend, Bianca St.
James. They got lost trying to find Bianca’s house, and argued about it. A man
named Oscar Mink heard the argument and saw the Toyota MR2 in Lake
Arrowhead. Denny agreed to take defendant’s available cash in exchange for the
car. Defendant dropped off Denny in San Bernardino, and drove towards Missouri
that night. The next day, he found a purse and pistol in the car. Defendant kept
the gun to protect himself from arrest for violating parole. For this reason, he
evaded and shot at Missouri police.


1. Assault on Loc N.

Around 5:30 p.m. on December 17, 1989, a young Vietnamese woman

named Loc N. carried groceries from her car into her house on Erin Street in

Garden Grove, near Thrifty Drug Store. Loc testified that a strange man followed

her inside. He demanded sex, grabbed her neck, and pushed her against the wall.

He fled when she indicated her husband was nearby. Loc did not identify

defendant’s photograph in police lineups. Though both men were fair-haired and

Caucasian, defendant was not Loc’s assailant.

2. Lake Arrowhead Incident

On December 17, 1989, Oscar Mink lived in a gated community in Lake

Arrowhead, about a 90-minute drive from Orange County. Late that night, Mink

was awakened by two or more loud male voices coming from a nearby house,

where an “unseemly element” sometimes congregated. He could not see anybody

from his porch. An argument seemed to be underway, and a name like “Danny”

might have been used. After hearing one or more car doors slam, Mink saw a

white Toyota MR2 speed away. He could not tell whether there was more than

one person inside or what they looked like. However, Mink thought the driver

was a White male. Mink called the police in response to news stories about the

capital crime.

3. Fingerprint Evidence

Carl Hensgen, a defense fingerprint expert, previously worked for law

enforcement agencies, and was once a colleague of MacWillie’s at the Garden

Grove Police Department. Hensgen testified that he visited MacWillie at work

before trial, and examined the fingerprints she had lifted from Nguyen’s Toyota

MR2. Hensgen agreed with MacWillie’s identification of defendant’s prints,

including those found inside the driver’s compartment. However, Hensgen

identified defendant as the donor of at least two prints that MacWillie viewed as


inconclusive. Hensgen also questioned MacWillie’s conclusions as to the

workability of certain other prints. On cross-examination, Hensgen acknowledged

that all fingerprints that he and MacWillie could not identify came from the car’s

exterior. Like MacWillie, Hensgen could not eliminate defendant or Nguyen as

the donor of the three unidentified prints found inside the car.


A. Prosecution Case

1. Prior Felony Convictions

The prosecution introduced documents establishing that defendant was

convicted in 1981 of burglary in Riverside County, and of rape and robbery in San

Bernardino County. The latter two convictions involved separate incidents that

the victims described at the penalty trial.

2. Violent Criminal Activity

a. Rape of Pamela B. Pamela B. testified that, at night on May 2, 1981,

she awoke to find defendant entering her home in Twentynine Palms, California.

Her husband was gone. Defendant removed the bed covers and told Pamela to

undress. He undressed and masturbated, and then raped her. When Pamela

warned that her husband would return, defendant dressed, ripped the phone from

the wall, and ran away. Defendant’s 1981 rape conviction arose from this


b. Rape of Patricia W. Patricia W. testified that, at night on June 2, 1981,

she was asleep with her baby girl in Twentynine Palms California. Her husband

was gone. Patricia awoke, saw defendant, and screamed. Defendant threatened to

kill her if she did not keep quiet, and started to undress. Defendant asked Patricia

to make room in the bed by moving her daughter aside. Patricia placed the baby

in the crib instead. When Patricia refused to return to the bed, defendant raped her

on the floor, and forced her to engage in mutual oral copulation. Defendant urged


Patricia to have an orgasm and ejaculated outside of her when she expressed

concern over pregnancy. Patricia objected when defendant said he wanted to

spend the night. To get him to leave, Patricia suggested that he slip unseen

through the back door. He took $30 from her. Defendant’s 1981 robbery

conviction arose from this incident.

c. Attempted Rape of Lorinda J. On December 23, 1989, the same day

defendant used Nguyen’s Sears credit card, he attacked Lorinda J. in Marionville,

Missouri. Lorinda testified that she awoke at night and found defendant on top of

her in bed. Lorinda shoved defendant with her feet, and told him to stop. He

called her vile names and threatened to kill her if she resisted. Defendant pointed

a gun-shaped object at her. They struggled, and defendant removed Lorinda’s

pants. Defendant removed his pants and masturbated. Lorinda refused

defendant’s demands to have sex, and to orally copulate and masturbate him. He

touched her breast, and ejaculated on her.

Defendant dressed and demanded money. Lorinda said that she did not

have much cash, and that her purse was in another room. He left through the back

door. Several days later, when he was arrested for shooting Officer Robinson,

defendant had some of Lorinda’s jewelry in his possession. Before he was

convicted of attacking her, defendant sent Lorinda a letter incorrectly stating that

she had cried when a defense investigator mentioned the death penalty in

conjunction with defendant.

d. Attempted Murder of Officer Robinson. As reflected in the penalty

instructions, the jury could consider, in aggravation, Officer Robinson’s testimony

at the guilt phase that defendant shot and tried to kill him in Springfield, Missouri

on December 28, 1989.


3. Victim Impact Evidence

Nguyen’s sister and husband testified about their grief over the murder.

Nguyen had given birth to a daughter shortly before her death. Nguyen’s sister,

who came to America from Vietnam several years after Nguyen, and before the

crime, regretted losing someone who could help her assimilate. No one told

Nguyen’s parents, who lived in Vietnam, the truth about how she died.

B. Defense Case

Numerous witnesses — relatives, friends, and mental health professionals

— testified on defendant’s behalf. He did not take the stand.

1. Life History

Defendant was Mary DePriest’s only child. According to her testimony,

Mary realized at age 13, growing up in Missouri, that she preferred women over

men as romantic partners. Mary had sex for money with Jim Tate, and chose

another man, Jack Callison, to father her child. Defendant was born in 1960, when

Mary was 17. He grew up believing that his father was Jim (who died shortly

after defendant’s birth). Defendant did not learn until age 13 or 14 that he was

Jack’s son. Mary had lost contact with Jack over the years. He died in prison.

At first, Mary cared for defendant in her parents’ home in Missouri. When

defendant was six months old, Mary started staying away from home, and then

moved out. She ignored her mother’s pleas to be a better parent. Mary explained

at trial that she loved her son, but could not raise him properly. She drank and

caroused at bars.

Between 1960 and 1965, Mary had a series of female lovers. Mary visited

defendant during this time. Her visits were sporadic and disruptive. She once

arrived at the house bloodied and bruised. Her departures upset defendant. By all

accounts, defendant’s grandparents gave him a stable and loving home. Defendant

called both Mary and his grandmother “Mom.”


Defendant became close to other members of Mary’s family. They

included his uncles Larry and Jimmy DePriest. Jimmy testified that he shared

almost a father-son bond with defendant. Defendant also spent time with cousins

Mitchell and David. They were the sons of another uncle, Ronnie DePriest, and

his wife Patricia. Defendant participated in family picnics and other outings. As

for family tragedies, defendant’s uncle, Ronnie, was stabbed to death by his

second wife. Ronnie’s son David shot himself to death.

Meanwhile, in 1965, Mary started serving a 15-month prison term. Her

parents, her brother Larry, and defendant visited every few weeks. After her

release, Mary lived sporadically with her parents and defendant. She also lived

with different female lovers.

In 1970, Mary began a serious relationship with Chris (also known as

Hazel) Young. Chris had two children, John and Theresa. Because Chris was a

stripper who often changed jobs, the couple lived in different places (e.g., Kansas,

Oklahoma, South Carolina, Mississippi, and New Mexico). Typically, the adults

would move to the new city first, bring defendant and/or Chris’s children to join

them later, and then move again in a few months and repeat the process. Between

moves, defendant stayed with his grandparents. Mary’s mother testified that the

nomadic lifestyle disrupted defendant’s schooling. She also accused Chris of

disciplining defendant too harshly.

Chris testified, in turn, that Mary’s mother dominated everyone in the

family, including her husband and male children. She reportedly waged a “tug-of-

war” with Mary and Chris over defendant. Chris also described gatherings with

Mary’s extended family as alcohol-fueled and volatile. Mary and Chris sometimes

fought verbally and physically, especially while drinking alcohol. Chris and other

witnesses portrayed defendant as a quiet, respectful boy. He called Chris “Mom,”

and was close to her children.


In New Mexico, Mary and Chris ran an escort and prostitution service.

Defendant saw Mary and Chris being arrested outside the business. Subsequently,

in 1975, Mary sent defendant to Missouri to live with her parents. Mary, Chris,

and Chris’s children returned to Missouri in 1976, and lived near defendant and

his grandparents. Mary and her brother Larry admitted smoking marijuana with

defendant at parties around this time. Two former high school friends of

defendant’s testified that other drugs were consumed by teenagers and adults on

such occasions.

Defendant joined the Marines at age 17. According to his sergeant,

defendant performed adequately while stationed on a remote Alaskan air base.

One of defendant’s former high school friends testified that defendant became

more aggressive after joining the Marines. During visits home, he smoked

marijuana and took LSD.

At trial, Mary expressed regret for being a terrible mother, and spending

more time with her lovers than with her son. She described herself as manic

depressive. Mary and other witnesses did not want defendant to die.

The penalty jury heard testimony that defendant was serving a sentence of

“life plus 57 years” for crimes committed in Missouri.

2. Mental Condition

Dr. Raymond Anderson, a psychologist, interviewed and tested defendant.

Dr. Anderson opined that defendant suffered from an unspecified and borderline

personality disorder involving sexual fixation on rape fantasies, and drug

dependence. His personality is unformed and anxious, making it difficult for him

to interact on an intimate or long-term basis. Dr. Anderson attributed these

conditions to defendant’s emotional abandonment by his mother, his confusion

over her lesbianism and his own sexual identity, his deep anger toward women,

and his disorientation over his father’s identity. Defendant took drugs to suppress


these feelings. Dr. Anderson theorized that defendant might confuse rape with

romance. Cross-examination disclosed that defendant’s test results were

consistent with an antisocial personality disorder. Dr. Anderson did not ask

defendant questions to explore such a diagnosis, or learn about his criminal


Dr. Rashami Skadegaard, a psychologist, interviewed defendant and his

relatives, and studied his social history. Dr. Skadegaard emphasized defendant’s

psychosexual disturbance. Contributing factors were a pattern of emotional

abandonment by defendant’s mother, her promiscuous gay lifestyle and aggressive

personality, defendant’s resulting sexual confusion, feelings of worthlessness and

rage towards women, frequent moves that prevented lasting social attachments,

exposure and desensitization to violence and drugs in the family, a family history

of mental illness, lack of a father figure or strong male role model, and conflicted

homosexual and homophobic feelings trigged by service in the Marines. Dr.

Skadegaard alluded to two possible incidents of child sexual abuse by older males,

including a relative. Defendant raped in a “sick” attempt to assert his masculinity

and gain intimacy.


A. Challenges for Cause

Defendant argues here, as below, that the trial court’s rulings on five

challenges for cause violated Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).

As a result, he allegedly was deprived of federal and state constitutional

guarantees regarding an impartial jury, due process, equal protection, a reliable

death verdict, and cruel and unusual punishment. We disagree.6


As to this and almost every other appellate claim, defendant contends the

alleged error infringed his constitutional rights. Most of the time, defendant raised

(footnote continued on next page)


1. Background

The trial court granted the prosecution’s challenges for cause to three

prospective jurors — M.B., G.G., and B.T. — made on grounds they were biased

against the death penalty and prosecution efforts to impose it here. The trial court

also denied defense challenges for cause to two prospective jurors — J.C. and

K.E. — whose past or present association with law enforcement allegedly biased

them in favor of both the prosecution and a death sentence.

The trial court extensively questioned each juror about capital punishment

and related factors affecting the juror’s willingness and ability to follow the law

and be fair. The court allowed substantial followup questioning by counsel, and

heard extensive arguments on both sides about each challenge. All of the

contested rulings ran contrary to defense objections and arguments. As to both

J.C. and K.E., whom defendant unsuccessfully sought to excuse for cause, the

defense exercised a peremptory challenge. Indeed, defendant used all of his

(footnote continued from previous page)

the issue in the trial court, and explicitly mentioned the constitutional theories
advanced on appeal. As to those relatively few instances in which he did not
present constitutional theories below, it appears that either “(1) the appellate claim
is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting
defendant’s substantial rights) that required no trial court action by the defendant
to preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that
the trial court’s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. To that extent, defendant’s new constitutional arguments are not
forfeited on appeal.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 (Boyer),
citing People v. Partida (2005) 37 Cal.4th 428, 433-439.) On the merits, no
separate constitutional discussion is required, or provided, where rejection of a
claim that the trial court erred on the issue presented to that court necessarily leads
to rejection of any constitutional theory or “gloss” raised for the first time here.


peremptory challenges, expressed dissatisfaction with the jury, and unsuccessfully

sought one more peremptory challenge.

2. Applicable Law

Qualification to serve on a capital jury is not limited to determining

whether the person zealously opposes or supports the death penalty in every case.

Under federal and state law, a prospective juror may be excluded for cause where

his views on capital punishment would “ ‘prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.’ ” (Witt, supra, 469 U.S. 412, 424, clarifying Witherspoon v. Illinois (1968)
391 U.S. 510, 522, fn. 21 [framing issue as whether it is “unmistakably clear” the

prospective juror would “automatically” vote for life or death].) The Witt standard

applies to both prosecution and defense challenges. (Morgan v. Illinois (1992)
504 U.S. 719, 728-729; People v. Heard (2003) 31 Cal.4th 946, 959.) At bottom,

capital jurors must be willing and able to follow the law, weigh the sentencing

factors, and choose the appropriate penalty in the particular case. (People v.

Stewart (2004) 33 Cal.4th 425, 446-447; Heard, supra, 31 Cal.4th at p. 958.)

The trial court’s findings as to the nature and effect of a prospective juror’s

views on capital punishment and related topics (e.g., law enforcement) receive

substantial deference on appeal. (People v. Ledesma (2006) 39 Cal.4th 641, 675

(Ledesma); People v. Griffin (2004) 33 Cal.4th 536, 558-559.) Indeed, where

answers given on voir dire are equivocal or conflicting, the trial court’s assessment

of the person’s state of mind is generally binding on appeal. (People v. Lewis and

Oliver (2006) 39 Cal.4th 970, 1007 (Lewis and Oliver).) The trial court is in the

unique position of assessing demeanor, tone, and credibility firsthand — factors of

“critical importance in assessing the attitude and qualifications of potential jurors.”

(Uttecht v. Brown (2007) __ U.S. __, __ [127 S.Ct. 2218, 2224].) Hence, the trial

judge may be left with the “definite impression” that the person cannot impartially


apply the law even though, as is often true, he has not expressed his views with

absolute clarity. (Witt, supra, 469 U.S. 412, 425-426.) For reasons we now

describe, the record prevents us from second-guessing the trial court’s decisions

excusing and retaining the prospective jurors challenged for cause here.

3. Analysis of Decision Granting Three Prosecution Challenges

Prospective Juror M.B. initially stated on voir dire that he could keep an

open mind on sentencing, and did not oppose the death penalty. He admitted,

however, that he did not want the responsibility of making such a difficult decision

himself. He was reluctant to pass judgment on any capital defendant, and doubted

he could impose death even if the evidence indicated it was appropriate in the

particular case. M.B. emphasized that he might vote for life “regardless of the

evidence” in order to avoid making a decision on death. When defense counsel

asked whether he could conceive of a case in which death would be a viable

option, M.B. said, “no.”

Prospective Juror G.G. stated at the start of voir dire that he did not oppose

the death penalty and would not automatically vote against it. However, most of

his answers seemed to contradict this view. G.G. said he would be bothered by

having to make such a difficult decision, and wanted somebody else to do it. G.G.

gave several reasons for not wanting to sit on a capital jury, including the fact that

he was HIV-positive and had once spent several nights in jail. G.G. would not say

“yes” when asked pointblank whether he could, and would, consider imposing

death based on the evidence. Instead, he continued to equivocate, and said, “I

would not want to put somebody to death right now.” G.G. declined to tell either

the prosecutor or defense counsel that death was a “possibility” in any case.

Prospective Juror B.T. strongly disfavored the death penalty. On the one

hand, he said he would try to suppress such feelings, and would not automatically

reject death or ignore the evidence. On the other hand, he thought it was wrong


for anybody, including him as a juror, to take a life. Later, after a break in

questioning, B.T. said his feelings had crystallized and that he could not say the

death penalty was morally appropriate in any case. In other words, he would

“almost always” vote against it.

Though their responses were not uniform or absolute, all three of the

foregoing jurors indicated they would have extreme difficulty imposing capital

punishment, even in an appropriate case. “Those answers, in combination with the

trial court’s firsthand observations, could give rise to a definite impression that

[their] views on the death penalty would substantially impair the performance of

[their] duties.” (Lewis and Oliver, supra, 39 Cal.4th 970, 1007.) We thus defer to

the court’s ruling sustaining the prosecution’s challenges for cause.

4. Analysis of Decision Denying Two Defense Challenges

Prospective Juror J.C. was a former peace officer and district attorney

investigator who had retired 10 years before trial. Voir dire began with his

assurances that he could consider and impose either life imprisonment or a death

sentence depending upon the evidence, including defendant’s character and

background. Speaking candidly, J.C. acknowledged that he might “lean” toward

the prosecution on guilt because he knew, from past experience, that “the district

attorney’s office is not going to file a case unless they feel [there] is sufficient

evidence to get a conviction.” J.C. was familiar with pretrial motions to dismiss

complaints and suppress evidence. He assumed the defense might try to disqualify


Nevertheless, J.C. insisted that his law enforcement background would not

impair his ability to be a fair and impartial juror. He said that he would make his

own decision on guilt and penalty based on the evidence and instructions, that he

would not automatically vote in favor of the prosecution, that law enforcement

officers sometimes make mistakes, that defendant was presumed innocent until


proven guilty, and that the prosecution must prove guilt beyond a reasonable

doubt. J.C. made clear that he “would want [defendant] to have a fair trial.”

Prospective Juror K.E. worked as a customs agent for the federal

government in the internal affairs division. Previously, she had worked with both

the sheriff’s office and university police. She stated on voir dire that her job

enhanced, rather than detracted from, her fairness as a juror. K.E. noted that she

had encountered “bad” police officers, some of whom had lied to her. She also

was trained to assess the credibility of all witnesses. Though K.E. favored the

death penalty, she knew it was not appropriate in every case depending on the

facts. She also believed that life imprisonment was “horrible,” even though it was

less serious than death. Later, in response to defense questioning, K.E. reiterated

that she would not feel an affinity toward police witnesses, or a suspicion towards

the defense team, if she served on the jury.

Based on these exchanges, and the deference we accord to credibility

determinations on voir dire, the trial court could reasonably conclude that neither

prospective juror was biased in favor of the prosecution or a death sentence

despite their employment backgrounds. Hence, the court did not err in denying

defendant’s challenges for cause. (See, e.g., Ledesma, supra, 39 Cal.4th 641, 675-

676 [upholding retention of reserve deputy sheriff who said he could be fair on

death penalty, even though friends in law enforcement had been murdered];

People v. Staten (2000) 24 Cal.4th 434, 453-454 [same, as to female prospective

juror whose close relatives were police officers].)

B. Denial of Additional Peremptory Challenge

After the voir dire of Prospective Juror D.N., whom neither side challenged

for cause, the prosecutor accepted the jury panel as constituted. At a sidebar

conference, defense counsel expressed dissatisfaction “with the 12 that are here.”

Defense counsel acknowledged that he had exhausted all 20 peremptory


challenges allotted by statute. (See Code Civ. Proc., § 231, subd. (a).) However,

citing the Sixth and Eighth Amendments, counsel sought an additional peremptory

challenge to compensate for the one used against K.E., whom he had

unsuccessfully challenged for cause. However, the trial court saw no reason to

exercise its discretion in favor of granting the request. (See People v. Bittaker

(1989) 48 Cal.3d 1046, 1087-1088.) The court suggested that the defense had

used several peremptory challenges against persons who presented “no problem at

all in terms of being fair and impartial.” According to the court, the defense

appeared to have exhausted its peremptories in order to preserve arguments for

appeal on the challenges for cause.

Defendant contends the trial court arbitrarily denied his request for an

additional peremptory challenge under state law, and thereby violated his federal

constitutional rights to due process and an impartial jury under the Sixth, Eighth,

and Fourteenth Amendments. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)

We reject the claim.

To establish a constitutional entitlement to additional peremptory

challenges, the defendant must at least show that he is likely to receive an unfair

trial before a biased jury if the request is denied. (People v. Pride (1992) 3 Cal.4th

195, 231 (Pride); accord, Ledesma, supra, 39 Cal.4th 641, 665.) Defendant has

made no such showing at trial or on appeal. As explained above, the trial court did

not erroneously deny defense challenges for cause against either J.C. or K.E. Nor

does defendant identify any allegedly biased jurors who sat on his jury. (Pride,

supra, 3 Cal.4th at p. 231.) No basis for reversal on this ground appears.

C. Cumulative Error and Prejudice

Defendant claims the errors the trial court allegedly committed in selecting

a jury (see discussion, ante) combined to deprive him of a fair trial, an impartial

jury, and a reliable death judgment under the federal Constitution. For reasons we


have explained, no error occurred at this phase of trial. We therefore discern no

cumulative prejudicial effect requiring reversal of the judgment.


A. Speedy Trial Motion

Defendant contends the 22-month period between “his arrest in Missouri”

(December 28, 1989) for crimes committed in that state, and “his being brought to

Orange County” (October 18, 1991) to stand trial in the capital case, violated his

speedy trial rights under the federal and state Constitutions. The trial court

rejected similar claims. We find no error.

After the murder on December 17, 1989, defendant drove the victim’s car

from Garden Grove to Missouri. There, he committed crimes in two different

counties. On December 23, defendant assaulted Lorinda J. in her home in

Marionville, which is in Lawrence County, Missouri. On December 28, he used

the murder weapon to shoot Officer Robinson in Springfield, which is located in

Greene County, Missouri. As we have seen, defendant was arrested and detained

in the Greene County jail for the latter crime the same day it occurred.

It appears that sometime in January 1990, the Orange County Public

Defender’s Office was appointed to represent defendant in anticipation of capital

charges being filed for the murder of Nguyen. On February 1, 1990, the Orange

County District Attorney’s Office filed a complaint charging defendant with that

murder, and alleging special circumstances. Within a few months, in June 1990,

appointed counsel moved in the capital case to discover, among other things, all

physical evidence, including the results of any scientific testing conducted thereon.

Meanwhile, defendant remained in custody in Missouri. In a trial ending

May 2, 1990, defendant was convicted of crimes involving the shooting of Officer

Robinson in Greene County. Defendant was subsequently charged with crimes

committed against Lorinda J. in Lawrence County. Due to a venue change, the


latter case was moved to Berry County, Missouri. Defendant entered a guilty plea

on March 6, 1991.

That same month, the Orange County District Attorney’s Office sought to

return defendant to California to stand trial in the capital case. Interstate transfer

documents were sent to Missouri, where defendant was incarcerated, on March 29,

1991. (See § 1389.) For the next several months, defendant fought extradition.

Following formal proceedings on the matter, a Missouri court issued an order

transferring defendant to the custody of California authorities on September 13,

1991. On October 18, 1991, the transfer occurred and defendant arrived in


Arraignment on the pending complaint was originally scheduled for

October 21, 1991. However, on two occasions, defendant appeared with counsel

in municipal court, and requested continuances. Both times, defendant personally

waived his rights to a speedy trial. At the second continuance hearing, however,

counsel explained that defendant was not waiving such rights insofar as they

attached to time spent in custody in Missouri before arriving in California. On

December 6, 1991, defendant was arraigned and pled not guilty to the capital

crime as alleged in the complaint.

On February 3, 1992, the preliminary hearing occurred, and defendant was

held to answer on capital charges in superior court. The information was filed on

February 18, 1992. Defendant was arraigned in superior court the same day.

Before jury selection began, defendant moved to dismiss the charges under

the federal and state constitutional speedy trial guarantees, citing the “delay” in

bringing him from Missouri to California. Defendant claimed he was available to

California authorities the entire time, and that evidence presumably had been lost

as a result. The prosecution formally opposed the motion.


At various times over the next month, the court and counsel discussed the

motion. The court first heard testimony from Detectives Shave and Overley, from

the Garden Grove Police Department, and Sam Phillips, the Chief Assistant

Prosecutor from Greene County, Missouri. Their testimony established that

California authorities never asked Missouri authorities to release defendant for

trial on capital charges, and that Missouri never refused to do so. However, the

same witnesses said they had discussed and understood that defendant should be

tried first in Missouri because he was already in custody there, and because a

noncapital trial in Missouri would proceed much faster than the capital trial in


At the next hearing on the speedy trial motion, the court announced that it

would defer its ruling at least until the end of the guilt phase. The court explained

that, assuming the federal and state constitutional rights to a speedy trial applied, it

basically must balance any justification for the challenged delay against any

prejudicial effect. (See Barker v. Wingo (1972) 407 U.S. 514, 530; Jones v.

Superior Court (1970) 3 Cal.3d 734, 740.) As a threshold matter, time spent

bringing defendant to California was justified in the court’s view. The court

emphasized that defendant faced multiple prosecutions for crimes committed in

Missouri, that he was represented by counsel in California while being prosecuted

in Missouri, and that neither party “could do much about getting [him] out here”

before such proceedings were complete. However, in order to properly assess

prejudice, the trial court decided to first hear the evidence at trial. (See People v.

Martinez (2000) 22 Cal.4th 750, 768-770 (Martinez) [approving such practice].)

The speedy trial motion was ultimately denied near the end of the penalty

phase. The court found no indication that defendant lost evidence or suffered

prejudice between the time of his Missouri arrest and his arrival in California.


Any disadvantage was deemed insignificant in light of the overwhelming evidence

of guilt.

On appeal, defendant first complains about the manner in which the court

weighed the relevant factors and determined that no federal constitutional

violation occurred. However, contrary to what defendant apparently would have

us assume or conclude, the Sixth Amendment’s speedy trial provision never

applied in the first place. “[B]efore [a] defendant may allege [such] a

violation . . . , he must establish the right attaches.” (People v. Roybal (1998) 19

Cal.4th 481, 513 (Roybal); see id. at p. 512.) It is settled that, for federal

constitutional purposes, attachment of the right to speedy trial occurs only upon

“ ‘either a formal indictment or information or else the actual restraints imposed

by arrest and holding to answer a criminal charge.’ ” (Martinez, supra, 22 Cal.4th

750, 755, 760, quoting United States v. Marion (1971) 404 U.S. 307, 320

(Marion).) The filing of a felony complaint does not trigger federal speedy trial

protection on the charged crimes. (Martinez, supra, 22 Cal.4th at pp. 754-

755, 763, 764, 765.) The reason is that the Sixth Amendment requires “formal

accusation in the court with jurisdiction over the prosecution of the charge” (id. at

p. 763), or “arrest with continuing restraint” on such charge. (Id. at p. 765; accord,

People v. Horning (2004) 34 Cal.4th 871, 891 (Horning).)

Here, defendant did not stand formally accused or subject to the requisite

restraint for Sixth Amendment purposes until February 1992, when he was held to

answer on capital charges and the information was filed in Orange Count Superior

Court. Such events happened after Missouri authorities released defendant to the

custody of California authorities, and after he arrived in Orange County in

October 1991. Hence, the federal speedy trial right did not operate during the

preceding 22-month period that began in December 1989, when defendant was

arrested, detained, and tried for crimes committed in Missouri — a State that had


no jurisdiction to prosecute the capital crime. Nor, for reasons we have explained,

was the Sixth Amendment right triggered on February 1, 1990, by the mere filing

of the complaint in Orange County Municipal Court. Hence, defendant’s federal

speedy trial rights were not implicated or violated here.

We also reject defendant’s state constitutional claim, which involves a

somewhat different analysis. (See Cal. Const., art. I, § 15.) Unlike its federal

counterpart, the speedy trial guarantee under the state Constitution is triggered by

the filing of a felony complaint. Hence, such a violation may be premised “on

delay occurring after the filing of the complaint and before the defendant was held

to answer the charge in superior court.” (Martinez, supra, 22 Cal.4th 750, 766;

accord, Horning, supra, 34 Cal.4th 871, 895.) Under this theory, defendant’s state

constitutional speedy trial rights operated during the 24 months between the time

the complaint was filed in February 1990, and the time he was bound over and

charged in superior court in February 1992. However, “when a defendant seeks

dismissal based on delay after the filing of the complaint and before indictment or

holding to answer on felony charges, a court must weigh ‘the prejudicial effect of

the delay on defendant against any justification for the delay.’ [Citations.] No

presumption of prejudice arises from delay after the filing of the complaint and

before arrest or formal accusation by indictment or information [citation]; rather,

the defendant seeking dismissal must affirmatively demonstrate prejudice

[citation].” (Martinez, supra, 22 Cal.4th at pp. 766-767.)

Defendant has not made such a showing or established trial court error

here. First, there was ample justification for not trying defendant on capital

charges during the 20-month period between the filing of the complaint (February

1, 1990) and his return to California (October 18, 1991). California authorities

showed comity toward Missouri authorities, who had custody of defendant.

Defendant faced serious charges in two Missouri counties for the shooting of a


police officer and an attempted rape during a home burglary. Within a brief and

reasonable time after Missouri finished serially prosecuting defendant for such

crimes (March 6, 1991), California decided to seek defendant’s return for trial on

the capital crime, and sent documents to Missouri for that purpose (March 29,

1991). For the next five months (i.e., until September 13, 1991) defendant

unsuccessfully fought such transfer. He came to California in October 1991.

Second, defendant’s actions contributed to much of the foregoing delay.

He fled California after the capital crime, committed new crimes in Missouri,

caused Missouri authorities to prosecute him, and compelled California authorities

to extradite him. Many of these actions seem “far more blameworthy than [the]

government-caused delay” about which defendant now complains. (Horning,

supra, 34 Cal.4th 871, 894; see id. at p. 895 [finding no federal or state

constitutional speedy trial violation under similar circumstances].)

Third, defendant suffered no prejudice during the four-month period not

attributable to crimes and proceedings in Missouri, i.e., between arriving in

California (October 1991) and being held to answer and charged in superior court

(February 1992). For this reason, perhaps, defendant has not included this period

in the speedy trial claims raised at trial or on appeal. Indeed, he expressly waived

his speedy trial rights when seeking to postpone arraignment on the complaint for

almost two months after first appearing in Orange County Municipal Court (i.e.,

from October 21, 1991 to December 6, 1991).

Moreover, contrary to what defendant suggests, no evidence was lost after

defendant returned to California that limited his ability to defend against the shoe

print/crime scene testimony or the fingerprint/stolen car evidence. Counsel began

formal discovery proceedings long before defendant returned to California from

Missouri. Such efforts continued through trial, especially with respect to the

partial Nike shoe prints that Criminalist Krenz found at the crime scene. As


discussed further below, no part of the prosecutorial delay allowed the Nike

company to dispose of sales records showing that his shoes were widely available

in Garden Grove in 1989, or prevented him from minimizing the weight of

Krenz’s testimony. Rather, Nike did not start keeping such records until 1990,

after the capital crime. Likewise, the relevant delay postdated the loss of

Nguyen’s car following its inadvertent release from police custody on January 12,

1990, shortly after defendant was arrested in Missouri. As we discuss below, the

Toyota MR2 was tested by the police, the results were made available to the

defense, and no evidence seems to have been lost as a result. Accordingly, as with

his federal claim, we find no violation of defendant’s state constitutional speedy

trial rights.7

B. Statements to Police

Defendant argues the trial court erred in ruling that, if he testified, he could

be impeached with statements he made to California detectives about the capital

crime while jailed in Missouri for crimes committed there. He claims here, as in

his suppression motion below, that such statements were not admissible for any

purpose because they violated the Fifth Amendment privilege against self-

incrimination (see Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)), the Sixth

Amendment right to counsel, the due process ban on coerced confessions under


Defendant notes in his reply brief that prosecutorial delay in bringing

criminal charges may implicate federal due process guarantees. We reject any
suggestion that such a violation occurred here. To warrant dismissal of the case
on due process grounds, preindictment delay must cause “substantial prejudice”
and serve as an “intentional device to gain tactical advantage.” (Marion, supra,
404 U.S. 307, 324; cf. United States v. Lovasco (1977) 431 U.S. 783, 795-796.)
Defendant has not shown that the challenged delay was intended to gain such
advantage. Nor, for reasons we have explained, has he shown prejudice. (See,
e.g., Horning, supra, 34 Cal.4th 871, 895.)


the Fourteenth Amendment, and parallel provisions of the state Constitution.

Defendant did not testify, and the Missouri statements were not introduced for any

purpose. Nonetheless, he claims the court’s erroneous “impeachment” ruling

prevented him from taking the stand. (See, e.g., People v. Jablonski (2006) 37

Cal.4th 774, 813 (Jablonski).) We will reject the claim.

1. Background

Detective Shave, who led the murder investigation for the Garden Grove

Police Department, was a key witness at the suppression hearing. He testified as

follows: On January 8, 1990, Shave and his partner, Detective Glenn Overley,

arrived at the Greene County jail in Springfield, Missouri to interview defendant.

They were unarmed. A jailer told the detectives that defendant was not

represented by counsel, and that a female lawyer might visit him the next day.

Detectives also learned that the jail did not allow tape recorders inside. This

circumstance led Shave to describe the interview as “off record” in his handwritten

notes. The notation did not reflect anything said to defendant during the


Shave further testified that he and Overley waited for defendant in an

interview room with a table and three chairs. The air temperature was

comfortable. The door, which locked from the hallway outside, had a window in

it. Defendant wore no restraints when escorted into the room and while seated in

his chair. There was nothing unusual about his appearance, and he did not

complain about his physical condition. The trio was left alone knowing that jail

personnel would check on them periodically and unlock the door when the

interview ended.

According to Detective Shave, defendant learned that Shave and Overley

were California police officers, that they wanted to ask some questions, and that

they needed to advise defendant of his Miranda rights. However, before Shave


could take a breath and read out loud from the Miranda card in his hand,

defendant blurted out that counsel from California — “Mr. Alexander” — had told

him not to talk. Defendant also said that his mother, who had spoken to Mr.

Alexander, called defendant and told him not to talk. Shave acknowledged that

defendant was not waiving his Miranda rights. Shave then put the card away,

closed his notebook, and waited for the door to open.

After a period of silence, Shave said, “Well, you understand that this can’t

be used in the case-in-chief against you.” Defendant replied, “Yeah, it’s been in

the paper all over, rape and murder in California in Garden Grove” — a topic and

place that Shave had never mentioned. Shave testified that they then chatted about

defendant’s family and military service. When defendant volunteered that he

wanted to be a mercenary, Shave asked whether a mercenary carried a .25-caliber

firearm. Defendant said that such a small caliber gun “could kill just as well as

any other gun.” In response to Shave’s questions about “the gun,” defendant

talked about buying it cheaply in San Bernardino “before the girl in Garden Grove

was murdered.” Defendant denied receiving any money from his uncle or visiting

Lake Arrowhead. When asked about “having the car that night,” defendant

mentioned his trip to Missouri and good gas mileage.

Upon further questioning, defendant said he was “bother[ed]” by having

shot the girl in Garden Grove, and that he could not explain his “violent” acts

toward women. Shave testified that both he and defendant spoke in soft tones,

especially about the shooting. Defendant admitted being alone while walking in

the shopping center and shooting the victim. He denied removing her pants and

said he left her clothed in the dumpster area. He admitted using her credit card.

Detective Shave described other topics that he and defendant discussed.

Defendant expressed concern about reentering prison with a “rape jacket” because

it would restrict his work privileges and movements. He denied sexually


assaulting anybody on Erin Street in Garden Grove or in Lawrence County,

Missouri. However, he admitted shooting a Springfield police officer in order to

avoid being returned to prison. Defendant preferred being incarcerated in

Missouri near his family.

Defendant did not answer certain questions. Such topics concerned what he

meant by “violent” behavior toward women, how he knew that the girl he shot

owned the car he drove to Missouri, whether the shooting victim was raped, how

she first came to his attention in the shopping center, and what prompted the

shooting. Shave testified that the interview reached a “natural conclusion” after

45 minutes.

In response to defense questioning at the suppression hearing, Detective

Shave acknowledged that he knew at the time of the interview that statements

obtained in violation of Miranda and inadmissible in the prosecution’s case-in-

chief might be admissible “on rebuttal.” Detective Shave testified that he raised

the “case-in-chief” concept hoping defendant would talk with the officers.

However, this tactic apparently was not discussed beforehand in a meeting Shave

and Overley had with someone in the prosecutor’s office about defendant’s case.

Detective Overley also testified at the suppression hearing. He recalled

being caught “off guard” by defendant’s initial refusal to answer any questions

based on Attorney Alexander’s advice. According to Overley, no charges were

pending against defendant in Orange County at the time, and detectives did not

know how or why California counsel had become involved. Overley recalled that

neither he nor Detective Shave elaborated on the comment that defendant’s

statements could not be used in the “case-in-chief.” Consistent with Shave’s

account, Overley testified that defendant was never told that his statements were

“off the record.” Overley confirmed that tape recorders were banned from the

Springfield jail.


The final witness at the suppression hearing was Roger Alexander, a deputy

public defender in Orange County. Alexander testified that on December 29,

1989, after speaking by phone with defendant’s mother and reading news accounts

of the Garden Grove murder, Alexander initiated a phone conversation with

defendant at the Springfield jail. During that call, defendant said he was indigent

and wanted to be represented by Alexander’s office in the present case. However,

it was only at a later point that such an appointment was made and charges were

filed. Alexander advised defendant of his Miranda rights, and told him to request

counsel and remain silent. Alexander warned defendant that “the officers would

continue to question him,” and that he should continue invoking his rights even if

they said his statements “could not be used against him.”

After hearing argument on both sides, the trial court granted, in part, and

denied, in part, defendant’s motion to exclude his statements at trial. The court

first ruled that defendant invoked his Miranda rights, that subsequent questioning

violated such rights, and that defendant’s statements could not be used to prove

guilt in the prosecution’s case-in-chief.

However, following Harris v. New York (1971) 401 U.S. 222, 224 (Harris),

the trial court concluded that defendant’s statements, which it found were not

coerced or involuntary for due process purposes, could be used to impeach his

credibility if he testified. In rejecting defendant’s involuntariness claim, the trial

court relied on numerous factors. They related primarily to Detective Shave’s

conduct of the interview (e.g., his brevity and subdued manner), and defendant’s

response (e.g., his understanding of the right to silence and counsel, his apparent

lack of confusion about statements being omitted from the “case-in-chief,” and his

decision to answer only certain questions). Finally, no violation of the Sixth

Amendment right to counsel was found. The trial court reasoned that defendant


did not acquire such right in the capital case until several weeks after the police

interview, on February 1, 1990, when the complaint was filed.

Four days after the ruling on the suppression motion, defendant personally

waived his right to testify. He did not take the stand at either the guilt or penalty


2. Analysis

Defendant first contends the trial court erred in allowing use of his

statements for impeachment because detectives conducted a custodial

interrogation in knowing violation of Miranda, supra, 384 U.S. 436, and ignored

the right to silence and counsel he invoked thereunder. Defendant recognizes that

his Miranda claim fails under People v. Peevy (1998) 17 Cal.4th 1184, 1191-1202

(Peevy), which was decided after the instant suppression ruling. Peevy held that a

statement deliberately obtained in violation of Miranda safeguards, but otherwise

voluntary, is admissible for impeachment under Harris, supra, 401 U.S. 222,

224.8 Defendant insists, however, that Peevy is no longer viable and should be

reconsidered in light of the subsequent decision in Dickerson v. United States

(2000) 530 U.S. 428 (Dickerson).

We have previously rejected a similar claim (People v. Demetrulias (2006)

39 Cal.4th 1, 29-30), and do so again here. The narrow question in Dickerson,

supra, 530 U.S. 428, concerned congressional authority to effectively overrule


In Peevy, supra, 17 Cal.4th 1184, which followed Harris, supra, 401 U.S.

222, we reasoned that barring statements taken in violation of the Miranda rule
both to prove guilt and for impeachment would give unfair advantage to testifying
defendants, and provide little additional deterrence of police misconduct. In
particular, “ ‘[t]he shield provided by Miranda cannot be perverted into a license
to use perjury by way of a defense, free from the risk of confrontation with prior
inconsistent utterances.’ ” (Peevy, supra, 17 Cal.4th at p. 1194, quoting Harris,
, 401 U.S. at p. 226.)


Miranda, supra, 384 U.S. 436. To this end, Dickerson held that the Miranda

decision is “constitutionally based” and could not be abrogated by statute.

(Dickerson, supra, 530 U.S. at p. 440.) The high court observed that certain

exceptions, including the impeachment principles in Harris, supra, 401 U.S. 222,

demonstrated “— not that Miranda is not a constitutional rule — but that no

constitutional rule is immutable.” (Dickerson, supra, 530 U.S. at p. 441.) Nothing

in Dickerson indicated that the court’s careful balancing of the parameters of the

Miranda rule had changed. Thus, defendant has not shown that Dickerson is

inconsistent with Harris, supra, 401 U.S. 222, or Peevy, supra, 17 Cal.4th 1184.

Defendant next faults the trial court for allowing impeachment with

statements obtained in violation of his Sixth Amendment right to counsel.

Detectives allegedly interfered with a “preexisting” attorney-client relationship

when they discussed the capital crime with defendant after learning that Attorney

Alexander had told him not to do so. As we now explain, the asserted right never

arose and could not have been violated in the present case.

A criminal defendant’s right to the assistance of counsel under the Sixth

Amendment does not exist until the State initiates adversary judicial criminal

proceedings, such as by formal charge or indictment. Hence, an uncharged

suspect undergoing police questioning possesses no such Sixth Amendment right.

(Davis v. United States (1994) 512 U.S. 452, 456-457; People v. Frye (1998) 18

Cal.4th 894, 987; see Patterson v. Illinois (1988) 487 U.S. 285, 290-297 [noting

that defendant subject to postindictment interrogation must invoke Sixth

Amendment right, and describing circumstances under which it can be waived].)

Moreover, the Sixth Amendment right to counsel is “offense specific”; it

arises and may be asserted only as to those offenses for which criminal

proceedings have formally begun. (McNeil v. Wisconsin (1991) 501 U.S. 171,

175; People v. Webb (1993) 6 Cal.4th 494, 527 (Webb).) A defendant’s


incriminating statements about offenses for which he has not been charged may be

admitted consistent with his Sixth Amendment counsel guarantee notwithstanding

its attachment on other charged offenses at the time. (McNeil v. Wisconsin, supra,

501 U.S. at p. 176; Webb, supra, 6 Cal.4th at p. 527.) “[T]o exclude evidence

pertaining to charges as to which the Sixth Amendment right to counsel had not

attached at the time the evidence was obtained, simply because other charges were

pending at that time, would unnecessarily frustrate the public’s interest in the

investigation of criminal activities.” (Maine v. Moulton (1985) 474 U.S. 159, 180;

see Texas v. Cobb (2001) 532 U.S. 162, 167-173 [reaffirming and defining

offense-specific nature of right; People v. Slayton (2001) 26 Cal.4th 1076, 1081-

1085 [same].)

The foregoing authorities defeat any Sixth Amendment bar to eliciting and

admitting defendant’s statements about the capital crime. At the time of the

interview, defendant had been arrested and jailed in Missouri following the

shooting of Officer Robinson. Defendant learned over the phone from Attorney

Alexander that he need not, and should not, discuss the California crimes in

counsel’s absence no matter what assurances the police gave about their use. Even

assuming that criminal proceedings had begun on the Missouri crimes for which

defendant was in custody, and that his Sixth Amendment right to counsel had

attached to those counts, similar circumstances did not exist with respect to the

California murder and related offenses. As noted by the trial court, formal charges

were not pending in the present case at the time of the police interview. Defendant

cites no authority requiring or persuading us to ignore the bright-line precharging


rule against attachment of a Sixth Amendment right in the present case simply

because counsel may have fortuitously intervened beforehand.9

In his final attack on the trial court’s ruling, defendant contends his

statements were coerced and involuntary, and were inadmissible for any purpose

under due process guarantees. The claim rests primarily on uncontradicted

evidence that, after defendant spontaneously invoked his Miranda rights,

Detective Shave mentioned the inadmissibility of defendant’s statements in the

“case-in-chief,” but never explained the scope of that exclusionary rule or the

impeachment exception. Allegedly, these circumstances so misled defendant

about the legal risks of the interview that he could not resist the impulse to


The due process clause of the Fourteenth Amendment precludes the

admission of any involuntary statement obtained from a criminal suspect through

state compulsion. (Dickerson, supra, 530 U.S. 428, 433-434; Colorado v.

Connelly (1986) 479 U.S. 157, 167; People v. Neal (2003) 31 Cal.4th 63, 79.)


Defendant cites Escobedo v. Illinois (1964) 378 U.S. 478, for the notion

that his Sixth Amendment right to counsel arose “even before indictment” in the
present case. This approach is flawed for reasons we have previously explained.
(Webb, supra, 6 Cal.4th 494, 528, fn. 24.) Specifically, Escobedo purported to
recognize a pre-indictment right to counsel where the criminal investigation “has
begun to focus on a particular suspect” who makes incriminating statements to
police. (Escobedo, supra, 378 U.S. at pp. 490-491.) Despite contrary language in
Escobedo itself (see id. at p. 491), Miranda later made clear (Miranda, supra, 384
U.S. 436, 440-442, 444 & fn. 4), that both cases are concerned solely with
prophylactic measures available to suspects undergoing custodial interrogation,
including the right to counsel, and that such safeguards help protect the Fifth
Amendment privilege against self-incrimination at trial. (Accord, Moran v.
(1986) 475 U.S. 412, 429.) “Hence, Escobedo does not support
defendant’s claim that his Sixth Amendment right to counsel was violated, nor
does it give rise to any Fifth Amendment claim not otherwise available under
Miranda.” (Webb, supra, 6 Cal.4th at p. 528, fn. 24.)


Involuntariness means the defendant’s free will was overborne. (Dickerson,

supra, at p. 434; People v. Guerra (2006) 37 Cal.4th 1067, 1093 (Guerra).)

Whether the defendant lost his free will and made involuntary statements does not

rest on any one fact, however significant it may seem. Instead, courts examine the

totality of the circumstances. (Withrow v. Williams (1993) 507 U.S. 680, 688-689;

Jablonski, supra, 37 Cal.4th 774, 814.) While the reviewing court independently

decides whether the statements were involuntary, it accepts the trial court’s factual

findings if supported by substantial evidence. (Guerra, supra, 37 Cal.4th at

p. 1093; Jablonski, supra, 37 Cal.4th at p. 814.)

The factors supporting the trial court’s voluntariness decision are stronger

here than in other cases in which similar findings have been made. Though

defendant sidesteps the point, he was not worn down by a lengthy interrogation or

deprived of human comforts or necessities. The interview lasted only 45 minutes

as opposed to several hours. (Cf. Jablonski, supra, 37 Cal.4th 774, 815.) It

occurred while defendant sat unrestrained in a climate-controlled room. He did

not complain about a lack of sleep or food, or suffer any physical ailments. (Cf.

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60-61 (Coffman and

Marlow); People v. Storm (2002) 28 Cal.4th 1007, 1036.) Nor does the record

reveal anything harsh or overtly threatening about the tone or content of

questioning. (Cf. Guerra, supra, 37 Cal.4th 1067, 1095; Coffman and Marlow,

supra, 34 Cal.4th at p. 61.) Indeed, the trial court described Detective Shave as

naturally soft-spoken in court. Defendant seemed so relaxed that he engaged in

what Overley described as “small talk” about his life.

Contrary to what defendant implies, neither the failure to read defendant his

Miranda rights, nor the continued interrogation after he asserted such rights,

compels a finding of official coercion. (Jablonski, supra, 37 Cal.4th 774, 814,

citing People v. Bradford (1997) 14 Cal.4th 1005, 1039.) We have reached a


similar conclusion where the number of times the police ignored the defendant’s

request for counsel far exceeded what happened here. (See Jablonski, supra, 37

Cal.4th at pp. 810, 814-815 [11 times]; Coffman and Marlow, supra, 34 Cal.4th 1,

57-58 [nine times].) Defendant’s prior experience as a felony suspect, and the

advice he received from both his mother and Attorney Alexander, suggest he was

not confused or intimidated by detectives, and that he willingly chose to unburden

himself about the capital crime.

Of course, Detective Shave’s assurance that defendant’s statements could

not be used in the “case-in-chief” was only true as far as it went; he did not

specifically mention the converse principle that such statements might be used for

impeachment. However, there is no evidence that defendant, a convicted felon,

did not understand Shave’s point, or that detectives otherwise mischaracterized the

interview as wholly “off the record.” In any event, prior cases have consistently

rejected involuntariness claims even where police representations on admissibility

were much less accurate than the one made here. (Jablonski, supra, 37 Cal.4th

774, 811, 815 [unqualified assurance that defendant’s statements could not be used

in court]; Coffman and Marlow, supra, 34 Cal.4th 1, 54, 58 [same]; People v.

Gutierrez (2002) 28 Cal.4th 1083, 1132-1133 (Gutierrez) [unqualified assurance

that defendant’s statements would not be used in court].) As evidence that nothing

detectives said rendered defendant’s statements involuntary, he fielded their

questions in a careful matter, and declined to discuss certain sensitive topics that

they raised. “His resistance, far from reflecting a will overborne by official

coercion, suggests instead a still operative ability to calculate his self-interest in

choosing whether to disclose or withhold information.” (Coffman and Marlow,

supra, 34 Cal.4th at p. 58.)

In sum, we find no error in the suppression and impeachment ruling below.



A. Shoe Print Evidence

According to defendant, the trial court mishandled shoe print evidence

introduced through Criminalist Krenz — evidence that the prosecution acquired

and disclosed to the defense shortly before trial. Defendant complains about the

denial of various motions (i.e., continuance, mistrial, exclusion of evidence) on

grounds the prosecutor violated rules regulating both pretrial discovery (§ 1054 et

seq.) and the reliability of scientific evidence. (People v. Kelly (1976) 17 Cal.3d

24 (Kelly).) Here, as below, constitutional violations are alleged (i.e., right to due

process, to counsel, and to prepare and present a defense.) We will reject the


1. Background

The basic facts came to light during discussions between the court and

counsel about Krenz’s testimony. Several months before the jury was sworn,

Krenz had examined paper debris recovered from the crime scene, found no shoe

prints linked to defendant, and prepared a report of her findings that both parties

received. A defense expert, Steve Schliebe, examined the same physical items,

and reached similar conclusions.

The day after the jury was sworn, and before opening statements were

made, defendant filed his written offer of proof on the admissibility of third party

culpability evidence. Apparently, in an abundance of caution, the trial court had

previously granted a defense request to delay presentation of this theory until the

eve of trial to avoid giving the prosecution too much advance warning. The offer

of proof referred, among other things, to “numerous” shoe prints at the crime

scene that could not be linked to defendant or any other known person. According

to the prosecutor, this representation differed from his recollection that only a few

unidentified shoe prints had been found. Hence, that same night, the prosecutor


and Krenz spent six hours examining debris that had been taken from the floor of

the dumpster alcove, looking for shoe prints they might have missed before.

As a result, Krenz found two new partial shoe prints that appeared to be

consistent with defendant’s Nike shoes. Krenz reached this conclusion in each

case by making an imprint of the bottom of defendant’s shoe on a transparent

plastic sheet, attaching a photograph of the crime scene shoe print underneath the

transparency, and laying the transparency over the photograph to see if the sole

patterns lined up.10

Counsel complained that the foregoing evidence surprised the defense, and

violated the prosecution’s duty to provide discovery in a timely fashion. Counsel

sought to investigate the matter to determine the likelihood that the disputed shoe

prints were made by defendant, and to retain another expert to examine Krenz’s

new conclusions in this regard. Counsel asked for a continuance, and for a

mistrial if the continuance was denied. He moved, alternatively, to exclude

Krenz’s testimony and related exhibits (i.e., shoe print transparencies and attached


The prosecutor denied any wrongdoing, and insisted he had no choice but

to reexamine the crime scene debris when counsel suggested that it contained

numerous exculpatory shoe prints. The prosecutor emphasized that all such

evidence had been given to the defense and examined by their expert long before


Defendant calls this shoe print comparison process the “acetate overlay”

method. Krenz described it in more colloquial terms at trial, as follows: “[The
transparency] was made by dusting the bottom of a shoe and then putting some
sticky white paper over it and pulling it off. Then we use a copy machine to make
a transparency. The bottom of — the underneath is a photograph that I took of a
partial shoe impression [from debris at the crime scene].”


trial. To ease counsel’s concerns, the prosecutor offered to recess for one week

before presenting any evidence, and/or to present Krenz’s testimony at the end of

the case-in-chief. The prosecutor also offered to stipulate to any evidence

concerning the number of Nike shoes like defendant’s in Garden Grove near the

time of the crime.

The trial court agreed that defendant was entitled to fully investigate

Krenz’s proffered testimony, and that the defense should suffer no prejudice from

the timing of its disclosure. However, the court saw no discovery violation or

unfairness requiring either a continuance or mistrial, or exclusion of the shoe print

evidence. According to the court, nothing in its pretrial discovery order or

applicable law constituted “an absolute bar to something new coming up during

trial.”11 The court credited the prosecutor’s account about discovering the two

partial shoe prints the night before. In the court’s view, defendant could pursue

his investigation while trial was underway, because he had two public defenders

and access to investigators in their office. The final ruling was issued only after

the court heard Krenz’s testimony outside the jury’s presence describing her

shoeprint comparison technique.

2. Analysis

Contrary to what defendant first claims, the discovery statutes did not

“mandat[e]” a continuance or other sanction in the present case. The prosecutor

must disclose to the defense relevant written, recorded, or reported statements “of


The court’s pretrial discovery order tracked the language of section 1054.1,

part of the criminal reciprocal discovery statute (see discussion, post). The order
required the prosecutor to disclose, among other things, “[a]ll relevant real
evidence seized or obtained” in the case, and the “reports” of expert witnesses,
including the results of “scientific tests, experiments, or comparisons which the
prosecutor intends to offer in evidence at the trial.”


witnesses whom the prosecutor intends to call at the trial, including any reports or

statements of experts made in conjunction with the case,” as well as “the results of

. . . scientific tests, experiments, or comparisons which the prosecutor intends to

offer in evidence at the trial.” (§ 1054.1, subd. (f).) Such disclosure generally

must occur at least 30 days before trial. (§ 1054.7.) However, the latter provision

contains the following exception: “If the material and information becomes

known to, or comes into the possession of, a party within 30 days of trial,

disclosure shall be made immediately . . . . (Ibid., italics added.)

The trial court properly found that Krenz’s testimony and supporting

exhibits constituted new evidence, and that disclosure timely occurred under the

latter provision. The prosecutor informed both the court and counsel of such

evidence immediately after he acquired it. Nothing in the record suggests such

acquisition was unreasonably delayed. Indeed, experts on both sides initially

overlooked the two new shoe prints, which were found on scraps of paper

salvaged from debris in the dumpster alcove. The court accepted the prosecutor’s

explanation about reexamining the debris and discovering the new shoe prints

overnight. We find no violation of the relevant statutes or the court’s pretrial

order. (See, e.g., People v. Panah (2005) 35 Cal.4th 395, 459-460 (Panah)

[reaching similar conclusion as to new report that pathologist prepared on eve of

testimony after reexamining microscopic slides at prosecutor’s request].)

We reject defendant’s related claim that the trial court abused its discretion

in denying his request for a continuance, and in not first ascertaining the precise

extent of the delay involved. (See Panah, supra, 35 Cal.4th 395, 460 [upholding

outright denial of continuance of “unspecified length”].) Neither the prosecutor

nor the court sought to deny defendant an opportunity to investigate the shoe print


evidence or to defend against it. The record supports the court’s determination

that defendant had ample time and resources to do so after trial began.12 Under

the circumstances, the court could properly find no good cause for delaying the

start of trial. (People v. Wilson (2005) 36 Cal.4th 309, 352.)

Taking a different tack, defendant argues that the shoe print evidence

offered through Krenz was inadmissible under Kelly, supra, 17 Cal.3d 24. (See

People v. Leahy (1994) 8 Cal.4th 587, 593-604 [reaffirming Kelly rule despite

subsequent changes in analogous federal law].) Kelly, supra, at page 30, and its

progeny require a showing that new scientific techniques used to detect or analyze

evidence have achieved general acceptance in the relevant scientific community.

(Pride, supra, 3 Cal.4th 195, 238.) This approach prevents lay jurors from being

influenced by procedures that carry a false aura of scientific infallibility. (Webb,

supra, 6 Cal.4th 494, 524, citing People v. Stoll (1989) 49 Cal.3d 1136, 1156.)

The Attorney General correctly argues that defendant has forfeited this

specific claim by not raising it in the trial court. (See Evid. Code, § 353.) We


Several days before Krenz described her shoe print comparison technique

for the jury, defense counsel filed a declaration regarding “Preparation for
Shoeprint Evidence.” This document summarized the investigative steps the
defense took during trial to determine whether a company other than Nike could
have produced the shoes that made the two new partial prints, and whether Nikes
similar to defendant’s shoes were widely disseminated in Garden Grove in
December 1989. Defense counsel declared that “specific sales records were not
kept by Nike until late in 1990” — after the capital crime. We note that defendant
has argued both at trial and on appeal that he needed more time to investigate such
matters before Krenz’s testimony. Hence, we see no basis for the Attorney
General’s suggestion that defendant is improperly arguing for the first time on
appeal that he needed a continuance to investigate “the frequency of his shoe size
in the male population” — a circumstance logically encompassed within the
defense motion and investigation in the trial court.


apply this procedural bar despite defendant’s insistence that the Kelly rule is too

“important” to avoid applying on the merits in a capital case. (See, e.g., People v.

Diaz (1992) 3 Cal.4th 495, 527.)

In any event, we disagree with defendant that trial counsel rendered

deficient representation by failing to make a Kelly objection. The jury heard

Krenz describe her “overlay” technique, and saw the items she used to compare

defendant’s shoe print (i.e., the transparency) with each crime-scene specimen

(i.e., photograph). Jurors could judge for themselves whether the sole patterns on

these items looked the same. “Where, as here, a procedure isolates physical

evidence whose existence, appearance, nature, and meaning are obvious to the

senses of a layperson, the reliability of the process in producing that result is

equally apparent and need not be debated under the standards of Kelly, supra, 17

Cal.3d 24.” (Webb, supra, 6 Cal.4th 494, 524; accord, People v. Farnam (2002)

28 Cal.4th 107, 159-160 (Farnam) [fingerprint comparison]; People v. Ayala

(2000) 24 Cal.4th 243, 280-281 [bullet comparison].) Because the shoe print

evidence did not implicate the concerns underlying the Kelly rule, counsel had no

duty to object on that ground, and could properly decline to do so.

For all these reasons, we find no judicial error or professional incompetence

involving the shoe print testimony and exhibits admitted against defendant.

B. Loss of Victim’s Car

Defendant claims here, much as he did below, that the prosecution’s failure

to preserve and disclose evidence (i.e., Nguyen’s car), and the trial court’s refusal

to specially instruct on the issue, violated due process under the federal and state

Constitutions. No error occurred.

In response to defense questions at trial, Detective Shave testified that

Criminalist MacWillie met Shave in Missouri to examine Nguyen’s Toyota MR2.

The examination occurred on January 9, 1990, about two weeks after defendant’s


arrest, and three weeks before the criminal complaint was filed. The car was

photographed inside and out. In addition, police searched for fingerprints and

other forensic evidence by examining the car’s exterior, interior, engine, and

trunk. The car was released from police custody on January 12, 1990, before

being examined by anyone acting on defendant’s behalf. The circumstances

surrounding this development are unclear. Shave testified that he did not

authorize the car’s release. Counsel suggested during this line of questioning that

an insurance company claimed Nguyen’s car.

As noted earlier, MacWillie’s examination of the Toyota MR2 led to the

admission of fingerprint evidence against defendant. His expert witness, Hensgen,

agreed with MacWillie in all major respects. In doing so, Hensgen used the

fingerprint specimens that MacWillie had lifted from the car and saved for

examination. Hensgen indicated that while it would have been ideal for him to

have lifted the prints himself, such circumstance never happens when working for

the defense. Nothing in Hensgen’s testimony suggested that his assessment of the

fingerprint evidence had been adversely affected as a result.

During discussions between the court and counsel, the defense offered three

special instructions “in the alternative” to address the state’s failure to preserve

certain items of evidence not relevant here. Almost as an afterthought, the defense

team also complained about Nguyen’s missing car, and the inability to examine it

themselves. The prosecutor indicated that the car was released only after

extensive testing, and that the results were timely disclosed to the defense.

Defense counsel did not disagree. He argued, however, that, without access to the


car, he did not know whether the prosecution’s testing was as complete as it


The instructional request was denied. The trial court found no basis on

which to conclude that material exculpatory evidence had been lost or suppressed

in violation of due process principles, as discussed further below. The court also

found no bad faith in police handling of the car.

On appeal, defendant again faults the prosecution for not retaining

Nguyen’s car, because it contained three unidentified fingerprints that could have

been made by “Denny” — the person who supposedly killed Nguyen and stole her

car. Defendant argues that further testing might have revealed fingerprints

inculpating such third party, or confirmed that the car contained no blood, hair, or

other trace evidence linking defendant to the capital crime. According to

defendant, the judgment must be reversed because the court failed to find a


The three defense instructions at issue here were Nos. 8, 8(a), and 8(b).

Instruction No. 8 provided as follows: “If you find that the State collected
material evidence during the investigation of this case, and then failed to preserve
said evidence, any reasonable inference to be drawn from said failure to preserve
should go to the defendant’s benefit. [¶] You may find that said evidence, had it
been preserved, would have tended to exculpate the defendant.” Instruction No.
8(a) provided as follows: “If you find that the State collected material evidence
during the investigation of this case, and then failed to preserve said evidence, any
reasonable inference to be drawn from said failure to preserve should go to the
defendant’s benefit. [¶] You should find that said evidence, had it been
preserved, would have tended to exculpate defendant.” Instruction No. 8(b)
provided as follows: “ If you find that the State collected material evidence during
the investigation of this case, and then failed to preserve said evidence, any
reasonable inference to be drawn from said failure to preserve should go to the
defendant’s benefit.” The defense requested and then withdrew a fourth similar
instruction, labeled No. 7.


constitutional violation and, “[a]t a minimum,” to give the curative instructions he


The relevant due process principles have been discussed many times before.

(See, e.g., People v. Carter (2005) 36 Cal.4th 1215, 1246; Farnam, supra, 28

Cal.4th 107, 166; Roybal, supra, 19 Cal.4th 481, 509-510; Webb, supra, 6 Cal.4th

494, 519.) Law enforcement agencies must preserve evidence only if it possesses

exculpatory value “apparent before [it] was destroyed,” and not obtainable “by

other reasonably available means.” (California v. Trombetta (1984) 467 U.S. 479,

489; cf. Brady v. Maryland (1963) 373 U.S. 83, 87 [prosecutorial duty to disclose

evidence that is both “favorable” and “material” to the defense].) The state’s

responsibility is further limited when the defendant challenges the failure to

preserve evidence “of which no more can be said than that it could have been

subjected to tests” that might have helped the defense. (Arizona v. Youngblood

(1988) 488 U.S. 51, 57 (Youngblood).) In such a case, unless the defendant can

show “bad faith “ by the police, failure to preserve “potentially useful evidence”

does not violate his due process rights. (Id. at p. 58.)

We see no constitutional violation. Defendant stipulated to being in the

possession of the murder victim’s car in Missouri. The evidence also disclosed

that he tried to disguise and hide the vehicle after attracting the attention of

Missouri police. Consistent with the suspicions of Garden Grove police, most of

the fingerprints that MacWillie found inside the car, and that the killer presumably

left there, belonged to defendant. Contrary to what defendant argues, neither

MacWillie nor her defense counterpart, Hensgen, could say that the three

unidentified fingerprints found in the driver’s compartment necessarily belonged

to anyone other than defendant or the victim. Thus, the trial court properly

concluded that the car had no discernible value favoring the defense before it

disappeared. The three disputed fingerprints “may or may not have been


defendant’s and may or may not have been the perpetrator’s.” (Roybal, supra, 19

Cal.4th 481, 510 [police lost crime scene evidence bearing unidentified


For similar reasons, defendant cannot show bad faith, i.e., that “the police

knew [the car] would have exculpated him” when it was released. (Youngblood,

supra, 488 U.S. 51, 56, fn. *.) The record discloses that the prosecution scoured

Nguyen’s car for trace evidence, and provided the results of that examination to

the defense. Defendant has not argued at trial or on appeal that the prosecution

failed to conduct necessary tests or performed any testing in a deficient manner.

Rather, he claims only that the prosecution should have preserved the car from

which forensic test results were obtained. Even assuming negligence on the

prosecution’s part, no more can be said than that the car could have been subjected

to further testing by the defense. Accordingly, no due process violation occurred,

and no basis for giving defense instructions on the issue arose at trial.

C. Detective Overley’s Testimony

Consistent with what he argued below, defendant claims that restrictions on

his examination of Detective Overley violated state law rules governing “third

party culpability” evidence. (See People v. Hall (1986) 41 Cal.3d 826 (Hall).)

The trial court’s ruling allegedly resulted in the denial of his right to due process

and to present a defense under the federal and state Constitutions. We disagree.

As background, the defense filed a written offer of proof shortly before

opening statements asserting that someone named “Denny” committed the capital

crime, and that defendant acquired the murder weapon and Nguyen’s stolen

property from Denny afterwards. (See discussion, fn. 5, ante.) The court and

counsel repeatedly debated the permissible scope of defense efforts to present this

third party theory to the jury. For instance, the prosecution sought to bar reference

to the theory in opening statements absent some showing it could be proved. After


a long discussion, in which the trial court warned that defense evidence would

have to satisfy Hall, supra, 41 Cal.3d 826, the court denied the prosecutor’s


Critical here is testimony that defendant tried to elicit from Detective

Overley after calling him in the defense case. Counsel asked whether Overley and

Detective Shave went to Lake Arrowhead to interview Bianca St. James about her

relationship with defendant. The prosecutor objected on relevance grounds. He

sought to exclude Overley’s testimony absent evidence that defendant was in Lake

Arrowhead the night of the murder, and that the “main part” of his third party

defense was true, i.e., that Denny committed the crime. Defense counsel

explained that Overley would testify that Mink and St. James lived near one

another, that each house had similar terrain, and that both lived in gated

communities. The trial court sustained the objection, giving rise to the present

claim on appeal.

In general, third party culpability evidence is admissible if it “rais[es] a

reasonable doubt of defendant’s guilt.” (Hall, supra, 41 Cal.3d 826, 833.) This

does not mean, however, that no reasonable limits apply. Evidence that another

person had “motive or opportunity” to commit the charged crime, or had some

“remote” connection to the victim or crime scene, is not sufficient to raise the

requisite reasonable doubt. (Ibid.) Under Hall and its progeny, third party

culpability evidence is relevant and admissible only if it succeeds in “linking the

third person to the actual perpetration of the crime.” (Ibid; see, e.g., Gutierrez,

supra, 28 Cal.4th 1083, 1136-1137 [no evidence drug dealer named “Pablo”

committed the murder]; People v. Bradford (1997) 15 Cal.4th 1229, 1325 [no

evidence victim was killed by some “man” who frightened her].)

Contrary to what defendant claims, the trial court properly found that

Detective Overley’s testimony raised no reasonable doubt as to defendant’s guilt.


When defendant called Overley as a witness, testimony by Goodwin, Brown, and

Mink had suggested, at most, that two men were in Nguyen’s car in both Garden

Grove and Lake Arrowhead on the night of capital crime, and that defendant might

have been one of them. Overley’s proffered testimony arguably corroborated

these inferences by suggesting that defendant’s friend Bianca lived near Mink in

Lake Arrowhead, and that defendant was hunting for Bianca’s house when Mink

saw the car. However, even assuming defendant established that he was in Lake

Arrowhead with a third party in the murder victim’s car, such fact is not

inconsistent with defendant killing, sexually assaulting, and robbing Nguyen

earlier that night. In other words, Overley’s proffered testimony did not tend to

link anyone other than defendant to “actual perpetration” of the charged crime.

(Hall, supra, 41 Cal.3d 826, 833.) We find no error under state or federal law.14

D. Sufficiency of Evidence

Defendant argues here, as he did at the close of the prosecution’s case-in-

chief (see § 1118.1), that the evidence was insufficient to convict him of the

charged crimes. Like the trial court, we reject the claim. After examining the

entire record and drawing all reasonable inferences in support of the judgment, we


The Attorney General suggests defendant has forfeited his complaint about

exclusion of Overley’s testimony because he relied on it for a different purpose at
trial (i.e., to prove the terrain and setting of Bianca’s house) than he does on
appeal (i.e., to prove defendant and Bianca were friends). But as we have seen,
defense counsel mentioned both Bianca’s relationship with defendant and the
location of her house as reasons for admitting Overley’s testimony below. Also,
defendant has consistently maintained that Overley’s observations tended to
corroborate the third party/Denny theory presented in his opening statement, and
that such evidence was relevant and admissible under Hall, supra, 41 Cal.3d 826.
Thus, while no defendant may complain for the first time on appeal about the
exclusion of evidence under a third party theory never presented in the trial court
(e.g., Panah, supra, 35 Cal.4th 395, 481; People v. Valdez (2004) 32 Cal.4th 73,
108-109), this is not such a case.


conclude that a rational trier of fact could have found defendant guilty beyond a

reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We now

discuss each facet of this claim.

1. Identity

Defendant contends the evidence was insufficient to identify him as the

person who murdered, robbed, and sexually assaulted Nguyen. We disagree.

Motive evidence implicated defendant in the capital crime. (See Pride,

supra, 3 Cal.4th 195, 245.) In the weeks beforehand, defendant repeatedly told his

parole officer and girlfriend that he wanted to leave California and move to

Missouri, apparently to see his family. However, he had no car, money, or

legitimate source of income to make the trip. The jury could infer that defendant’s

departure to Missouri on December 17, 1989, which he announced to his girlfriend

two hours before the capital crime, triggered a pressing need to acquire cash and a

car, and to use illegitimate means if necessary.

Defendant had ample opportunity to meet these needs by committing the

capital crime. (See Pride, supra, 3 Cal.4th 195, 245.) He was staying nearby with

his uncle at the time. Absent any evidence to the contrary, the jury was free to

infer that defendant was at the crime scene between 4:00 p.m. (when he called his

girlfriend) and 6:00 p.m. (when he stopped at his uncle’s house with the white

Toyota MR2). During the same two-hour window, Nguyen was accosted and shot

behind the Thrifty Drug Store. She carried her purse, and was headed home in her

white Toyota MR2. Property taken from Nguyen included items that defendant

needed for his Missouri trip — any cash and credit cards in the purse, the keys to

the car, and the car itself. Defendant was not seen again in California after he left

his uncle’s house that night in Nguyen’s Toyota.

Contrary to what defendant implies, his possession of Nguyen’s stolen

property in Missouri suggested he was the killer. (See, e.g., People v. Bradford,


supra, 15 Cal.4th 1229, 1331 [postcrime possession of murder victim’s jewelry

and accessories]; People v. Lewis (1990) 50 Cal.3d 262, 277 [same, as to victim’s

car].) On the morning of December 19, 1989, when first seen by his friend Johnny

Forrester in Springfield, defendant had both Nguyen’s car and keys. Four days

later, on December 23, 1989, defendant used Nguyen’s credit card at Sears in

Springfield. The jury could reasonably reject defendant’s speculative theory that

he “stumbled” upon the stolen property and acquired it without attacking or killing

the victim.

Defendant also erroneously claims there is a “complete absence” of

physical evidence connecting him to the murder victim and the crime scene. After

shooting Officer Robinson in Springfield, defendant was arrested carrying the

same .25-caliber pistol used to kill Nguyen less than two weeks earlier. The jury

could readily conclude that defendant had the murder weapon because he was the

murderer, and that he kept it to ward off police and evade capture afterwards.

(See, e.g., People v. Hawkins (1995) 10 Cal.4th 920, 955 [possession of murder

weapon six days later].) Also, defendant was linked to the dumpster alcove in

Garden Grove by a pubic hair, and by two partial shoe prints that were consistent

with the Nikes he wore when arrested in Missouri. (See, e.g., People v. Osband

(1996) 13 Cal.4th 622, 654, 691 [shoe prints]; People v. Berryman (1993) 6

Cal.4th 1048, 1083 (Berryman) [pubic hair].) No blood or hair evidence was

associated with anyone other than defendant or the victim.

Finally, defendant engaged in postcrime behavior from which the jury

could infer both a consciousness of guilt about the murder and concern for the

serious penalties that awaited him in California. (See Pride, supra, 3 Cal.4th 195,

246.) For instance, defendant falsely told his friend Johnny Forrester that his

girlfriend owned Nguyen’s Toyota MR2. Also, after two confrontations with

Missouri police, including one in which he was chased in the stolen Toyota,


defendant displayed what the jury could view as increasing concern about using

the car of a murder victim. On Defendant 23, 1989, defendant told Forrester and

another friend, Moots, that he wanted to paint the car black. He also removed

Nguyen’s license plates and hid the car in Moots’s garage. On the same occasion,

defendant threatened to “shoot a cop” before returning to California — a threat he

fulfilled when he shot Officer Robinson five days later on December 28. The jury

could find it highly unlikely that defendant would take such extreme measures to

avoid being caught violating parole in Missouri, and that he worried about being

identified as Nguyen’s killer and charged with murder in California.

For all these reasons, we find ample evidence supporting the jury’s

identification of defendant as the perpetrator of the capital crime.

2. Robbery

Defendant attacks the sufficiency of the evidence supporting the robbery-

murder theory of first degree murder, the robbery conviction, and the robbery-

murder special circumstance. Focusing on the Toyota MR2, defendant maintains

that the prosecution did not eliminate the possibility that he moved Nguyen away

from the car and used force to render her unconscious before he formed the intent

to steal, and before he actually took such property. Defendant alternatively

theorizes that someone else shot Nguyen and stole her car, and that defendant

somehow acquired it after the use of force and the taking had occurred. Either

way, he insists there was insufficient evidence of a “felonious taking” of property

from Nguyen’s “person or immediate presence” against her will, and “by means of

force or fear.” (§ 211.)

As defendant suggests, robbery requires an intent to steal the property at the

time the accused took it. (People v. Green (1980) 27 Cal.3d 1, 54 (Green).) Such

theft must be accomplished by force or fear. (Ibid.) Thus, where the defendant

kills the victim, and only thereafter decides to take property in the victim’s


possession, the force-or-fear requirement has not been met. (People v. Turner

(1990) 50 Cal.3d 668, 690.) Moreover, property is within the victim’s immediate

presence for robbery purposes if it is “ ‘ “so within his reach, inspection,

observation, or control, that he could, if not overcome by violence or prevented by

fear, retain his possession of it.” ’ ” (People v. Hayes (1990) 52 Cal.3d 577, 626-

627.) In other words, the area must be one within which the victim “ ‘could

reasonably be expected to exercise some physical control over his property.’ ”

(People v. Webster (1991) 54 Cal.3d 411, 440 (Webster).)

We reject defendant’s challenge to the robbery evidence insofar as it does

not pinpoint how and when he (1) decided to steal the victim’s property, (2) killed

the victim to deprive her of her property, or (3) took various items of property

from the victim. Where a person is left dead or dying in “relative proximity” to

property that was taken, and such property is later found in the defendant’s

possession, the jury is entitled to infer that the victim was robbed and that the

defendant committed the crime. (Webster, supra, 54 Cal.3d 411, 440 [defendant

arrested while driving car of victim who was stabbed to death on riverside trail a

quarter-mile from where parked car was taken]; see People v. Jennings (1991) 53

Cal.3d 334, 351 [defendant found in possession of dead woman’s purse a few days

after she disappeared and her nude and battered body was left in drainage ditch].)

Such facts support a robbery conviction. They do not prevent or undermine it.

In the present case, the evidence showed that Nguyen left work carrying her

purse and its contents, and the appliqué. She planned to drive home, stopping at

the store first. A rational jury could find that she dropped the appliqué behind the

Thrifty Drug Store when confronted by her assailant near her car. Given

Nguyen’s missing shoes, dirty feet, and bruised extremities, the evidence further

suggested that she was dragged or forced into the dumpster alcove nearby. There,

the jury could find, she was sexually assaulted (see discussion, post) and shot in


the head. Several items of Nguyen’s property were found in defendant’s

possession afterwards (e.g., car, keys, and credit card). Knowing that defendant

needed money and transportation to make his planned trip to Missouri, the jury

could reasonably conclude that he accosted Nguyen intending to steal her purse

and car, that such property was on her person or in her immediate presence at the

time, and that he used lethal force to thwart her efforts to retain possession and

control of it.

Defendant makes an additional and related attack on the sufficiency of the

evidence underlying the robbery-murder special circumstance. Emphasizing the

lack of any “preexisting” intent to steal, he claims the prosecution did not prove

that the murder occurred in “the commission of” a robbery and to advance a

felonious purpose independent of any intent to kill. (§ 190.2, subd. (a)(17)(A); see

Green, supra, 27 Cal.3d 1, 61.) However, for reasons we have explained, a

rational trier of fact could readily conclude that defendant — a fleeing parolee

who needed money and a car — killed the victim in order to steal her property and

to eliminate her as a witness to the robbery. Hence, as the instructions specifically

required, the jury could conclude the murder occurred during the commission of a

robbery, for purposes of facilitating it, and was not merely incidental to the

murder. (Green, supra, 27 Cal.3d at p. 61; see People v. Kimble (1988) 44 Cal.3d

480, 501.) We therefore reject this challenge to the robbery-murder special-

circumstance finding.

3. Attempted Rape

Defendant challenges the sufficiency of the evidence of attempted rape

supporting the felony-murder theory of first degree murder, the attempted rape

conviction, and the related felony-murder special circumstance. He primarily

complains that the prosecution did not prove the killer had actual sexual contact

with the victim. For instance, no pubic hair was found on (as opposed to near) the


body, and no tests identified the semen-like substance in her vagina. Defendant

also theorizes that physical trauma found inside the vagina during the autopsy

came from consensual marital relations, not from forcible sexual contact by a


Forcible rape is a general intent crime involving an act of sexual intercourse

accomplished against the victim’s will by means of force or fear. (§ 261, subd.

(a)(2).) An attempt to commit rape has two elements (see § 664): the specific

intent to commit rape, and a direct but ineffectual act done towards its

commission. (People v. Carpenter (1997) 15 Cal.4th 312, 387.) Such act cannot

be merely preparatory, and must constitute direct movement towards completion

of the crime. (Ibid.) However, attempted rape does not necessarily require a

physical sexual assault or other sexually “ ‘unambiguous[ ]’ ” contact.

(Carpenter, supra, 15 Cal.4th at p. 387 [pointing gun at victim and threatening

rape]; see, e.g., Guerra, supra, 37 Cal.4th 1067, 1082, 1131-1132 [inflicting odd

knife wounds to breasts of fully clothed murder victim who had resisted prior

sexual advances].)

The jury could infer that defendant intended to have nonconsensual

intercourse with Nguyen by force, and that his actions surpassed mere preparation

and constituted attempted rape, as follows: Defendant confronted Nguyen in the

parking lot as she approached her car after work. For reasons already explained,

he intended to steal her car and purse. However, before taking these items from

the scene, defendant forced Nguyen into a secluded area, namely, the dumpster

alcove. He tore off her pants and tossed them aside, not taking time to search her

pockets for the $31 they contained. Defendant unzipped and possibly lowered his

own pants, dropping a pubic hair. Injuries to Nguyen’s face and neck may have

been inflicted in an ongoing struggle. The dirt on the victim’s back, her nudity

below the waist, and her semi-open-leg position suggested that defendant tried to


vaginally penetrate her on the ground. Indeed, the jury was free to infer forcible

sexual penetration from the bruising, tearing, and semen-like substance found in

her vagina. Thus, the evidence supports the elements of attempted rape.

4. Firearm Possession

Defendant was found guilty, as charged, of being a convicted felon who

knowingly possessed a concealable firearm (pistol) in Orange County on

December 17, 1989. (See § 12021, former subd. (a), as amended by Stats. 1983,

ch. 1092, § 326.5, p. 4062; People v. Snyder (1982) 32 Cal.3d 590, 592.) On

appeal, defendant does not dispute that he knowingly possessed a handgun in

Missouri after the capital crime (e.g., when he shot Officer Robinson with the

murder weapon). However, he faults the prosecution for not proving similar

knowledge or possession during the capital crime in Orange County. Defendant

argues here, as below, that he fortuitously acquired Nguyen’s car after she had

been shot by someone else, and that he did not discover the murder weapon inside

the car “until after he had driven out of California.”

No evidence established that this scenario occurred. The less speculative

and more reasonable inference is as follows: Defendant attacked Nguyen in

Garden Grove on December 17, 1989, to steal money and a car. After forcing her

into the dumpster alcove, where at least an attempted rape occurred, defendant

shot Nguyen with a .25-caliber handgun. He drove her car to Missouri, taking the

murder weapon for protection against the police. Physical evidence connected

defendant — not “Denny” or some other third person — to the crime scene.


Thus, ample evidence established that defendant, who stipulated at trial to

being a convicted felon, knowingly possessed a concealable firearm during the

capital crime, at the charged place and time. We reject his contrary claim.15

E. Instructional Issues

1. Grand Theft

Over the prosecutor’s objection, defendant asked the trial court to instruct

on grand theft as a lesser included offense of robbery. (§ 487, former subd. 3, as

amended by Stats. 1987, ch. 599, § 1, p. 1932 [grand theft includes taking of

automobile]; see now id., subd. (d)(1).) The court denied the request, finding no

evidence that defendant stole Nguyen’s car or other property except by force or

fear. Defendant disagrees. He argues here, as below, that substantial evidence

showed that he merely used Nguyen’s property after someone else took it by lethal

force, or, alternatively, that any intent to steal on his part arose only after the

shooting. Failure to give a grand theft instruction allegedly violated defendant’s


In challenging the sufficiency of the evidence on appeal, defendant suggests

in his reply brief that jurors erroneously convicted him of possessing a firearm
because they lacked clear instruction on the relevant facts. He overlooks
information that refutes the claim. In addition to giving standard instructions
defining the crime, the trial court gave the following special instruction on its own
motion explaining the limited time and circumstances under which the firearm
offense must have occurred: “As to the charge in Count 4 of the Information,
Possession of a Concealable Firearm by a Felon, the People have charged that the
crime occurred on December 17, 1989[,] at the same time as the crime of murder
as charged in Count 1. [¶] You must not find the defendant guilty of the offense
charged against him in Count 4, Possession of a Concealable Firearm by a Felon,
unless you find that he committed such crime at that particular time, regardless of
your belief as to his commission of the crime at some other time.”


right to due process, a jury trial, and a reliable verdict under the federal


The trial court must instruct on general legal principles closely related to

the case. This duty extends to necessarily included offenses when the evidence

raises a question as to whether all the elements of the charged offense are present.

(People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) It is settled that

the crime of theft, whether divided by degree into grand theft or petty theft, is a

lesser included offense of robbery. (People v. Ortega (1998) 19 Cal.4th 686, 694-

697.) Robbery includes the added element of force or fear. (Id. at p. 694.)

Nevertheless, “the existence of ‘any evidence, no matter how weak,’ will

not justify instructions on a lesser included offense.” (Breverman, supra, 19

Cal.4th 142, 162.) Such instructions are required only where there is “substantial

evidence” from which a rational jury could conclude that the defendant committed

the lesser offense, and that he is not guilty of the greater offense. (Ibid.; accord,

People v. Manriquez (2005) 37 Cal.4th 547, 584.)

No substantial evidence established that defendant committed only grand

theft and not robbery. Defendant was identified as Nguyen’s assailant by strong

circumstantial evidence, including motive and opportunity to steal her property,

physical evidence placing him at the crime scene, and possession of both the

murder weapon and the victim’s property afterwards. Viewed charitably, defense

evidence merely established that defendant and an unidentified third person may

have been in the victim’s car together after she was sexually assaulted, robbed,


At one candid point in the discussion below, defense counsel told the court

that the “afterthought[ ]” theory (i.e., any intent to steal arose only after defendant
shot the victim) was not “particularly likely” to succeed in preventing a robbery
finding at trial. For this reason, counsel said he would not emphasize such theory
in argument to the jury.


and shot in the head. Nothing indicated that such third person committed the

capital crime, or that defendant was not involved in the attack. We find no

substantial evidence for grand theft purposes that defendant took Nguyen’s car and

other property from the “real killer,” or that defendant formed an intent to steal

and took the property only after the shooting occurred. (See People v. Duncan

(1991) 53 Cal.3d 955, 971 [no duty to instruct sua sponte on grand theft based on

“ ‘sheer speculation’ ” that defendant did not kill victim during robbery].) Thus,

the trial court did not err in refusing the requested instruction on grand theft as a

lesser included offense of robbery.

2. Third Party Defense

Defendant claims the trial court erred in failing to instruct sua sponte on the

proper operation of his third party culpability theory. In particular, the court

allegedly “failed to relate the third party defense to the burden of proof” by not

instructing the jury that he need not prove the third party guilty of the charged

crime, and that he need only raise a reasonable doubt as to his own guilt based on

the third party evidence. As a result, violations of defendant’s federal

constitutional right to due process, compulsory process, and trial by jury allegedly


Without deciding whether such a sua sponte duty existed, we find no error.

The trial court gave standard instructions on the presumption of innocence and on

the People’s burden of proving defendant’s guilt beyond a reasonable doubt. (See

CALJIC No. 2.90.) In an apparent abundance of caution, the trial court also gave

a special instruction requested by defendant clarifying that he bore no such burden

of proof, and guiding the jury’s consideration of evidence suggesting that a third

party committed the capital crime. (Cf. People v. Bolden (2002) 29 Cal.4th 515,

558 [instruction pinpointing defense theory of the case is unnecessary even on

request where, among other things, no substantial evidence supports it].)


In particular, after reminding jurors of the People’s heavy burden of proof,

the special defense instruction stated that “it is not necessary for the defendant to

prove that another person may have committed the crime, nor is it the burden of

the defendant to prove his innocence. [¶] If facts and circumstances have been

introduced into evidence which raise a reasonable doubt as to whether the

defendant was the person who committed the crime charged, then you must find

the defendant not guilty.”17 Thus, consistent with what defendant claims was

required here, jurors knew that he had no duty to prove another person’s guilt or

his own innocence, and that they must acquit him if the evidence merely “raise[d]

a reasonable doubt” as to his guilt of the capital crime. Defendant misreads the

record to the extent he suggests the contrary is true.

We also reject defendant’s related challenge to standard instructional

language requested by both parties describing the sufficiency of circumstantial

evidence of guilt. (See CALJIC No. 2.01.) This instruction directed the jury to

accept an interpretation of the evidence favorable to the prosecution and

unfavorable to the defense only if no other reasonable interpretation could be

drawn. Though the precise nature of defendant’s claim is unclear, the challenged

instruction could not have “exacerbated” any error in instructing on the

relationship between third-party-culpability evidence and burden-of-proof

principles, because no such error occurred. As noted above, the trial court


The special defense instruction stated, in full: “The burden is on the state

to prove beyond a reasonable doubt not only that the crime was committed, but
also that the defendant was the one who committed it. [¶] In this regard, you are
instructed that it is not necessary for the defendant to prove that another person
may have committed the crime, nor is it the burden of the defendant to prove his
innocence. [¶] If facts and circumstances have been introduced into evidence
which raise a reasonable doubt as to whether the defendant was the person who
committed the crime charged, then you must find the defendant not guilty.”


instructed the jury, at defendant’s request, that evidence implicating a third party

need only raise a reasonable doubt to warrant acquittal. We have consistently

rejected claims that the standard circumstantial evidence instructions dilute the

prosecution’s burden to prove guilt beyond a reasonable doubt. (E.g., People v.

Stitely (2005) 35 Cal.4th 514, 555-556 (Stitely); People v. Millwee (1998) 18

Cal.4th 96, 160 (Millwee); People v. Ray (1996) 13 Cal.4th 313, 347-348 (Ray).)

We reject any similar claim of error here.

3. Reasonable Doubt

The jury in the present case received a standard instruction establishing the

presumption of innocence and defining reasonable doubt. (CALJIC No. 2.90.)18

Defendant claims the instruction impermissibly diluted the prosecution’s burden

of proof and violated his federal and state constitutional rights to due process and a

jury trial. In particular, the instruction, which has long required jurors to apply the

presumption of innocence “until the contrary is proved” (ibid., italics added),

allegedly implied that “it was just a matter of time before the jury would find the

presumption of innocence had been overcome.”


As given at defendant’s trial, CALJIC No. 2.90 provided as follows: “A

defendant in a criminal action is presumed to be innocent until the contrary is
, and in case of a reasonable doubt whether his guilt is satisfactorily shown,
he is entitled to a verdict of not guilty. This presumption places upon the People
the burden of proving him guilty beyond a reasonable doubt. [¶] Reasonable
doubt is defined as follows: It is not a mere possible doubt; because everything
relating to human affairs, and depending on moral evidence, is open to some
possible or imaginary doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the minds of the jurors in
that condition that they cannot say they feel an abiding conviction, to a moral
certainty, of the truth of the charge.” (Italics added.)


No reasonable jury would interpret the instruction this way. Under

defendant’s approach, the disputed phrase essentially assumes that the defendant is

guilty and that his conviction is inevitable. If so, there would be no need for an

advisement on reasonable doubt or the presumption of innocence, because such

instruction would always be obviated. We have reached a similar conclusion

before. (People v. Lewis (2001) 25 Cal.4th 610, 651-652.) We do so again here.

F. Cumulative Error and Prejudice

Defendant asks us to vacate his convictions and the special circumstance

findings based on the cumulative prejudicial effect of the errors allegedly

committed at the guilt phase (see discussion, ante), including the asserted speedy

trial and Miranda violations. However, we have rejected each of these claims of

error. There is no prejudice to cumulate or assess, and no reason to reverse.


A. Alleged Misconduct by Detective Shave

Defendant sought various forms of relief at the penalty phase on grounds

Detective Shave manipulated and antagonized two potential defense witnesses

while interviewing them, or trying to interview them, before trial. The trial court

found no misconduct, and no violation of defendant’s right to due process,

compulsory process, or a reliable death verdict under the federal and state

Constitutions. Defendant repeats these arguments on appeal. No error occurred.

At issue are two motions defendant filed shortly before the guilt trial that

affected the eventual penalty trial. One motion sought sanctions against the

prosecution in the form of barring the death penalty or, alternatively, denying

discovery of defense evidence at the penalty phase. This written motion was

coupled with an oral request for an evidentiary hearing in which the defense

planned to ask Shave to “admit” the alleged misconduct, as described below.

Defendant’s second written motion sought discovery of Shave’s personnel file


insofar as it disclosed similar misconduct in other criminal investigations. (See

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Exhibits supporting

the motions included transcripts of (1) Detective Shave’s taped interview with

Mitchell DePriest, and (2) a hearing in an unrelated capital case in which another

Orange County judge heard testimony about Shave’s conduct in the present case.

The substance of each motion was the same, namely, that Detective Shave

had poisoned Mary and Mitchell DePriest (defendant’s mother and cousin,

respectively) against the defense, and had interfered with their testimony at the

penalty phase. First, when Mary expressed regret for “what had happened,” Shave

remarked that parents should not feel responsible for their children’s acts. Mary

assured Shave that she did not blame herself. This exchange occurred after Mary

declined Shave’s request for an interview. Second, based largely on information

contained in defendant’s parole file, Shave asked Mitchell whether he was the

person with whom defendant had reportedly engaged in underage homosexual

relations. Shave had no reason to believe that Mitchell (as opposed to another

male) was involved. Mitchell denied the charge, and it bothered him.

The court and counsel discussed the foregoing matters at several hearings.

Regarding the motion to bar either the death penalty or prosecutorial discovery,

the trial court saw no need to hold an evidentiary hearing and delay the start of

trial. The court concluded, based on defense exhibits and common sense, that the

alleged misconduct had not caused any harm and did not warrant such drastic

sanctions. The court could not conceive that Mary and Mitchell DePriest would

base their willingness to support defendant, with whom they had lifelong family

ties, on their brief contact with Detective Shave, a prosecution agent. Hence, the

motion was denied. However, the court agreed to reconsider the matter if the

penalty trial disclosed that the defense lost critical evidence because of Shave.


Next, the court and counsel discussed the People’s request for discovery of

defense evidence at the penalty phase. Defendant basically renewed his request to

bar such discovery based on Detective Shave’s interview techniques. To ease

ongoing concerns over Shave and facilitate reciprocal discovery, the prosecution

offered to stipulate to certain conditions, such as preventing Shave from

interviewing defense witnesses unaccompanied by another prosecution agent. The

court signed an order adopting the stipulated terms.

Finally, the trial court denied discovery of Detective Shave’s personnel file.

The court found no reason to depart from statutory provisions barring such

discovery except for good cause and under narrow circumstances not present here.

(See § 832.7; see also, Evid. Code, §§ 1043-1047.) Again, the motion was denied

without prejudice in the event the facts changed.

Defendant now contends the trial court erred in allowing the prosecution to

seek the death penalty and obtain reciprocal discovery, and in denying access to

Detective Shave’s personnel records. Though he would have preferred an

evidentiary hearing on the issue, defendant insists he presented ample evidence

below of “wrongful interference” with beneficial witnesses in violation of

constitutional law. Defendant contends that Shave affected the substance of Mary

DePriest’s testimony, and that he deterred Mitchell DePriest, who did not appear

at trial, from testifying at all.

Defendant acknowledges that he must establish three elements to prevail on

this claim. First, the misconduct must be so egregious and improper as to turn a

willing defense witness into an unwilling one. Second, the misconduct must

deprive the defendant of the witness’s testimony, or be a substantial cause of such

deprivation. Third, the lost testimony must be material and favorable to the

defense. (People v. Lucas (1995) 12 Cal.4th 415, 457; In re Williams (1994) 7

Cal.4th 572, 603; In re Martin (1987) 44 Cal.3d 1, 31-32.)


The record defeats the claim of governmental interference. Nothing

establishes that Detective Shave acted inappropriately. Even assuming the

contrary were true, defendant did not lose Mary DePriest as a beneficial witness at

the penalty phase. She declined Shave’s request for an interview, and “appeared

and testified on defendant’s behalf.” (Panah, supra, 35 Cal.4th 395, 461

[rejecting claim of prosecutorial intimidation of defense witness who appeared at

guilt and penalty phases]; accord, People v. Hill (1998) 17 Cal.4th 800, 835.) She

described his troubled upbringing, and placed the blame squarely on herself.

Detective Shave’s conduct had no prejudicial effect on Mary.

We reach a similar conclusion as to Mitchell DePriest. Defendant has not

established that Mitchell would have appeared at trial and provided beneficial

defense testimony absent Detective Shave’s alleged misconduct. Defendant

assumes that family members always provide helpful testimony at capital trials,

and that Mitchell would have done so too. Yet, the trial court could properly

conclude that all inferences ran to the contrary here. In his recorded interview

with Shave, Mitchell said that the defense team “gave up on me [because] I wasn’t

gonna be really that good of a character witness in Tim’s defense.” Mitchell

explained to Shave that he did not have extensive contact with defendant growing

up, and that he (Mitchell) “felt more sorry for the [murdered] girl’s parents than I

d[o] for [defendant].” Mitchell emphasized his reluctance to aid defendant and his

disgust over the capital crime.

In sum, defendant has not shown that Detective Shave deprived defendant

of beneficial testimony, that the trial court mishandled the issue, or that

constitutional violations occurred.19


Defendant’s Pitchess argument fails for similar reasons. Insofar as

defendant sought to discover and use Pitchess materials to support his claim of

(footnote continued on next page)


B. Motion to Modify Verdict

Defendant insists the trial court committed various errors in denying the

automatic motion to modify the death verdict under section 190.4(e). Such errors,

he argues, led to a death sentence that was arbitrary, capricious, and fundamentally

unfair under the federal and state Constitutions. We disagree.

Under section 190.4(e), the jury’s imposition of the death penalty triggers a

motion to modify the verdict. The trial court must “review the evidence, consider,

take into account, and be guided by the aggravating and mitigating

circumstances,” and must decide whether “the jury’s findings and verdicts that the

aggravating circumstances outweigh the mitigating circumstances are contrary to

law or the evidence presented.” (Ibid.) In other words, the statute requires the

court to make an independent determination concerning the propriety of the death

penalty, and to independently reweigh the evidence in aggravation and mitigation

and determine whether, in the court’s own judgment, the weight of the evidence

supports the jury verdict. (People v. Burgener (2003) 29 Cal.4th 833, 891

(Burgener).) The court need not describe “ ‘every detail’ ” supporting its ruling.

(Lewis and Oliver, supra, 39 Cal.4th 970, 1064.) The statement of reasons (see

§ 190.4(e)) is sufficient if it allows meaningful appellate review. (Ibid.)

Here, defendant presented his arguments both orally and in writing. The

trial court responded, at length, with its reasons for not modifying the penalty

verdict under section 190.4(e). The court first described its duties under

applicable law to independently reweigh the sentencing factors and determine the

(footnote continued from previous page)

misconduct by Shave, such proof would have been insufficient to establish a
constitutional claim of governmental interference, because whatever Shave did,
his conduct did not result in a loss of favorable defense testimony.


propriety of the death sentence. The court expressly declined to apply any other

standard of review, such as “the sufficiency of the evidence to support the jury’s


The court identified the evidence in aggravation (circumstances of the

capital crime, prior felony convictions, and other violent crimes), and described it

as overwhelming. (§ 190.3, factors (a)-(c).) Some statutory factors were found to

be either neutral (defendant’s age at time of crime) (id., factor (i)), or inapplicable

(victim or accomplice participation, and duress or moral justification). (Id.,

factors (e)-(g) & (j).)

The trial court largely accepted, as mitigating, the evidence emphasized by

defendant, especially his dysfunctional upbringing and resulting emotional state.

(§ 190.3, factors (d), (h) & (k).) However, the court rejected defendant’s view that

he had received no protection, affection, or nurturing from loved ones. According

to the court, defendant was never abandoned by his family, and loved ones always

intervened to help raise him. The court contrasted defendant’s situation with

children who must be physically removed from their homes by the state due to

parental rape, beatings, or extreme neglect.20

Exercising its independent judgment, the court concluded that aggravation

far outweighed mitigation, and emphasized the premeditated and brutal nature of

the attack on Nguyen. The court noted that while it had not mentioned “every


Defendant specifically asked the court to consider and weigh the following

mitigating evidence: Early exposure to lesbianism and prostitution; emotional
abandonment and lack of a stable maternal relationship; exposure to violence and
to his mother’s incarceration; misinformation regarding his father’s identity;
failure of any relative to protect him; exposure to alcohol and drug use; lack of
proper schooling and childhood companions; lack of affection and nurturing;
mental disturbance; and lengthy imprisonment in Missouri.


item of evidence” in the record, nothing was omitted from its consideration. The

parties were invited to seek clarification and express any concerns. However, both

of defendant’s attorneys had “nothing” to say. The court then denied the motion.

Preliminarily, defendant has forfeited the right to challenge the trial court’s

ruling. He did not object on any ground below. Defendant cannot do so for the

first time on appeal where, as here, the modification hearing (held in 1994)

postdated the finality of People v. Hill (1992) 3 Cal.4th 959, 1013 (which imposed

the objection requirement). (Lewis and Oliver, supra, 39 Cal.4th 970, 1064.) The

court’s solicitation of questions and complaints before denying the motion

undermines defendant’s suggestion that an objection would have been futile, and

would not have prevented any of the errors cited on appeal.

On the merits, we reject defendant’s argument that the court “improperly

deferred to the jury’s verdict.” The court articulated the correct standard of

review. It also applied that standard to independently review the evidence and

weigh the sentencing factors. This case is not one in which the record provides

“no assurance that the court was aware of and exercised its independent

judgment.” (Burgener, supra, 29 Cal.4th 833, 891 [criticizing trial court’s

apparent reliance on deferential substantial-evidence standard].)

Defendant contends the trial court failed to consider relevant evidence

offered in mitigation, such as expert testimony of psychosexual disturbance and

extreme emotional abuse suffered as a child. Defendant also complains the court

relied on irrelevant evidence outside the appellate record involving the fate of

other children in the child welfare system.

We disagree. The trial court considered the entire record, and paid

particular attention to evidence emphasized by the defense. Its ruling made clear

that any failure to mention specific mitigating facts did not mean they had been

ignored. By alluding to severe forms of child abuse not present in the record, the


court simply sought to illustrate the weight it placed on the childhood evidence

that was introduced. Thus, defendant’s complaint is not that the court failed to

properly consider and weigh mitigation, but that it reached an unfavorable result.

We have no basis on which to set the result aside. (See Berryman, supra, 6

Cal.4th 1048, 1107 [rejecting, as unfounded, defendant’s challenge to outcome of

modification motion]; see also People v. Carter (2005) 36 Cal.4th 1114, 1211

[appellate court makes no de novo penalty determination].)

C. Constitutional Challenges to Death Penalty Law and Related Claims

Defendant raises numerous challenges under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the constitutionality of the statutory scheme under

which he was sentenced to death, and the manner in which it was applied to him.

Many of these claims concern standard instructions given at his penalty trial

(including some incorporating the statutory language itself), or involve

instructions that the court declined to give on request. Other claims attack

statutory features or sentencing procedures on grounds unrelated to the

instructions. However framed, such claims have been rejected before. We do so

again here. It appears defendant presents these issues, at great length, primarily to

preserve and “relitigate” them in other court proceedings. (See People v. Schmeck

(2005) 37 Cal.4th 240, 303-304 [discussing presentation and preservation of

claims routinely rejected in prior cases].)

The trial court did not err in declining defendant’s request to define life

imprisonment without the possibility of parole as meaning that he would stay in

prison for the rest of his natural life. Such an instruction is inaccurate given the

Governor’s commutation and pardon powers. On the other hand, the concept of

life in prison with no possibility of parole is clear. (People v. Arias (1996) 13

Cal.4th 92, 172, 173.) We are not persuaded by empirical claims made outside the

appellate record and untested at trial suggesting the contrary is true. We also find


nothing in Shafer v. South Carolina (2001) 532 U.S. 36, undermining the standard

instruction insofar as it lacks the definition that defendant sought here. The Shafer

jury never learned that a life term carried no possibility of parole, while

defendant’s jury was so informed. (People v. Cornwell (2005) 37 Cal.4th 50, 103


The trial court properly instructed on which guilt phase instructions apply

at the penalty phase. In particular, the standard instructions did not mislead the

jury as to its responsibility to consider sympathy, mercy, and any other aspect of

defendant’s character and record in mitigation. (See CALJIC Nos. 8.84.1, 8.85,

factor (k); People v. Steele (2002) 27 Cal.4th 1230, 1255-1257.)

The sentencing factors in section 190.3, and the closely related instructions

in CALJIC No. 8.85, do not suffer from the flaws urged by defendant. Our

reasoning is as follows.

First, section 190.3, factor (a) (circumstances of the capital crime) is not

vague. (Tuilaepa v. California (1994) 512 U.S. 967, 980.) The same facts (e.g.,

felony murder) may be used for conviction, special circumstance, and aggravating

purposes given the distinct role such facts play at each phase. The court need not

instruct sua sponte against such use. (Cornwell, supra, 37 Cal.4th 50, 103; Ray,

supra, 13 Cal.4th 313, 358.)

Second, section 190.3, factor (b) (violent criminal activity) is not vague.

(Tuilaepa v. California, supra, 512 U.S. 967, 980.) Nothing bars use of the same

crime under factor (b) and factor (c) (prior felony convictions). No sua sponte

instruction against such double-counting is required. (Gutierrez, supra, 28 Cal.4th

1083, 1154; People v. Barnett (1998) 17 Cal.4th 1044, 1180.) Contrary to what

defendant suggests, the prosecutor did not tell the jury to count such factors twice

for the same purpose. He said that factors (b) and (c) were “different”, and

accurately explained why this was so.


Third, as to defendant’s remaining challenges to CALJIC No. 8.85 and the

statutory factors, the trial court was not compelled to delete inapplicable factors,

designate factors as aggravating or mitigating, or state when the balance of factors

warrants death. (Stitely, supra, 35 Cal.4th 514, 574; Ray, supra, 13 Cal.4th 313,


Defendant argues that the court erred in failing to give a lingering doubt

instruction at the penalty phase, and thereby caused jury confusion over use of the

concept as a permissible factor in mitigation. However, no lingering doubt

instruction was required. (Millwee, supra, 18 Cal.4th 96, 165-166.) The concept

is encompassed in section 190.3, factor (k) and related instructions. (People v.

Avila (2006) 38 Cal.4th 491, 615.)

Defendant engages in a broad and misguided attack on CALJIC No. 8.88, a

standard instruction defining the scope of the jury’s sentencing discretion under

section 190.3. As we have made clear, the instruction does not prevent either the

proper weighing of aggravating and mitigating factors, or an individualized

sentencing determination. (People v. Moon (2005) 37 Cal.4th 1, 42-44 (Moon).)

The presumption that jurors understood such instructions, and particularly the

concept of mitigation, is not rebutted by extraneous empirical claims. (People v.

Welch (1999) 20 Cal.4th 701, 772-773.)

Likewise, the statute and related instructions (see § 190.3; CALJIC No.

8.88) are not infirm insofar as they fail to require a reasonable doubt determination

as to both aggravating factors (except factor (b)) and the penalty determination.

Nor are the statute and instructions unconstitutional in not demanding juror

unanimity on aggravating factors, or a presumption favoring the imposition of a

life sentence. The decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, and

Ring v. Arizona (2002) 536 U.S. 584, do not change these conclusions. (Lewis

and Oliver, supra, 39 Cal.4th 970, 1068; Moon, supra, 37 Cal.4th 1, 44.)


Other alleged flaws in the “machinery” of capital punishment do not require

invalidation of California’s statutory scheme in the following areas: (1) scope of

the class of death-eligible first degree murderers, (2) failure to require written

findings of aggravating factors, (3) exercise of prosecutorial discretion to invoke

the law, (4) clarity of the law and instructions to lay jurors, including lack of

guidance on death being the greater penalty, and use of such terms as “extreme”

and “substantial” for certain mitigating factors, and (5) any delay in executing the

death sentence. (Lewis and Oliver, supra, 39 Cal.4th 970, 1068; Moon, supra, 37

Cal.4th 1, 42, 43; People v. Ochoa (1999) 19 Cal.4th 353, 478.)

The death penalty scheme withstands constitutional scrutiny even though it

fails to require “intercase” proportionality review. (Pulley v. Harris (1984) 465

U.S. 37, 50; People v. Ramos (1997) 15 Cal.4th 1133, 1182.)

Defendant’s death sentence was not grossly disproportionate to his

individual (i.e., “intracase”) culpability. (See People v. Dillon (1983) 34 Cal.3d

441.) He planned to visit his family in Missouri around Christmas. Broke and on

parole, he robbed and shot a young woman as she departed work alone at night. In

the process, he sexually assaulted her. Defendant left the victim to die in

degrading circumstances with no regard for either her or her loved ones.

Defendant had raped and robbed before, and sustained convictions for such

crimes. His later attacks were more violent than the earlier ones. Defendant acted

on his boast to a friend, and used the murder weapon to shoot a police officer in

order to avoid arrest. Under the circumstances, defendant’s death sentence does

not shock the conscience or offend basic notions of human dignity. (People v.

Stanley (2006) 39 Cal.4th 913, 967.)

Execution by lethal injection does not constitute cruel and unusual

punishment per se. (Boyer, supra, 38 Cal.4th 412, 484.) Any failure of

corrections officials to adopt proper standards for the administration of lethal


injection does not affect the validity of defendant’s death judgment. (See § 3604,

subd. (a).) Alleged imperfections and illegalities in the execution process that may

or may not exist when his death sentence is implemented are premature. (Boyer,

supra, 38 Cal.4th at p. 485.)

Defendant asserts that constitutional violations occurring during his capital

trial deprived him both of a fair hearing before an independent tribunal, and of

minimum guarantees for the defense under customary international law. But

international law does not bar a death sentence that complies with state and federal

constitutional law and statutory requirements. (People v. Hillhouse (2002) 27

Cal.4th 469, 511.)

The trial court correctly denied defendant’s motion for sentencing under the

“Three Strikes” law (§ 667, subds. (b)-(i)), and concluded that such legislation has

no retroactive ameliorative effect. As we have explained, the Three Strikes law

did not abolish the death penalty for defendants who are convicted of first degree

murder with special circumstances, and who have one or more prior violent or

serious felony convictions. (People v. Alvarez (1996) 14 Cal.4th 155, 246-247.)

We decline to reconsider this determination. (People v. Lucero (2000) 23 Cal.4th

692, 739.)

D. Cumulative Error and Prejudice

Defendant insists the errors allegedly committed at his penalty trial (see

discussion, ante) were prejudicial either singly or in combination. Defendant asks

that we assess such prejudice under the beyond-a-reasonable-doubt standard of

Chapman v. California (1967) 386 U.S. 18. For reasons we have explained, none

of the claims of error has merit. We thus have no reason to consider the applicable

standard of prejudice or to reverse the death judgment on the stated ground.



The judgment is affirmed in its entirety.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. DePriest

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: August 9, 2007

County: Orange
Judge: Everett W. Dickey


Attorneys for Appellant:

Russell S. Babcock, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood and Quisteen S. Shum, Deputy
Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Russell S. Babcock
Law Offices of Russell S. Babcock
1400 Sixth Avenue, Suite 210B
San Diego, CA 92101
(619) 531-0887

Quisteen S. Shum
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2613

Opinion Information
Date:Docket Number:
Thu, 08/09/2007S040527

1The People (Respondent)
Represented by Attorney General - San Diego Office
Quisteen S. Shum, Deputy Attorney General
110 W. "A" Street, Suite 1100
San Diego, CA

2DePriest, Timothy Lee (Appellant)
San Quentin State Prison
Represented by Russell S. Babcock
Attorney at Law
1400 Sixth Avenue, Suite 210-B
San Diego, CA

3DePriest, Timothy Lee (Appellant)
San Quentin State Prison
Represented by Thomas Nishi
Attorney at Law
1000 Wilshire Boulevard, Suite 600
Los Angeles, CA

Aug 9 2007Opinion: Affirmed

May 27 1994Judgment of death
Jun 17 1994Filed certified copy of Judgment of Death Rendered
Jul 5 1994Application for Extension of Time filed
  By County Clerk to Complete C.T.
Jul 5 1994Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Jul 7 1994Extension of Time application Granted
  To County Clerk To 8-15-94 To Complete C.T.
Jul 7 1994Extension of Time application Granted
  To Court Reporters To 8-15-94 To Complete R.T.
Sep 23 1998Counsel appointment order filed
  Russell S. Babcock Is appointed to represent Applt for the direct Appeal.
Nov 20 1998Filed:
  Applt's request for Relief from Default & Perm. to file Applic. for Ext. of time to request Corr. of Record.
Nov 30 1998Filed:
  Suppl Proof of Service of request for Eot.
Dec 1 1998Order filed:
  Granting Applt's request for Relief from Default & Perm. to file Applic. for Ext. of time to request Corr. of Record. Applt granted to and Including 12-24-98 to request Corr. of Record.
Dec 14 1998Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Thomas Nishi is hereby appointed to represent appellant for habeas corpus/executive clemency proceedings related to the automatic appeal now pending in this court.
Dec 14 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Dec 17 1998Extension of Time application Granted
  To Applt To 2-22-99 To request Corr. of Record.
Feb 16 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Feb 23 1999Extension of Time application Granted
  To 4-23-99 To request Record correction
Apr 15 1999Compensation awarded counsel
Apr 21 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 26 1999Extension of Time application Granted
  To 6-22-99 To request Record correction
May 26 1999Compensation awarded counsel
Jun 18 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 23 1999Compensation awarded counsel
Jun 29 1999Extension of Time application Granted
  To 8-23-99 To request Record correction
Aug 18 1999Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Aug 20 1999Extension of Time application Granted
  To 10/22/99 To request correction of the Record. no further Extensions of time Are Contemplated.
Nov 4 1999Compensation awarded counsel
  Atty Babcock
Jan 13 2000Compensation awarded counsel
  Atty Babcock
Mar 31 2000Received:
  Applt's request for Corr. of Transcripts, Addit. Record on Appeal, to Examine Sealed Transcripts and to Settle the Record on Appeal (13 Pp.)
Aug 16 2000Appellant's opening brief letter sent, due:
Aug 16 2000Record on appeal filed
  C-20 (6,258 pp.) and R-36 (7,289 pp.) including material under seal; Clerk's Transcript includes 3,045 pages of Juror Questionnaires.
Sep 20 2000Application for Extension of Time filed
  To file AOB. (1st request)
Sep 21 2000Filed:
  Amended application for extension of time to file AOB.
Sep 28 2000Extension of Time application Granted
  To 11/27/2000 to file AOB.
Nov 3 2000Counsel's status report received (confidential)
Nov 20 2000Application for Extension of Time filed
  To file AOB. (2nd request)
Nov 29 2000Extension of Time application Granted
  To 1/26/2001 to file AOB.
Jan 2 2001Counsel's status report received (confidential)
Jan 10 2001Compensation awarded counsel
  Atty Babcock
Jan 10 2001Compensation awarded counsel
  Atty Nishi
Jan 16 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Jan 22 2001Extension of Time application Granted
  To 3/27/2001 to file AOB.
Feb 15 2001Counsel's status report received (confidential)
  from atty Babcock.
Feb 20 2001Counsel's status report received (confidential)
  from atty Nishi.
Feb 28 2001Compensation awarded counsel
  Atty Nishi
Feb 28 2001Compensation awarded counsel
  Atty Babcock
Mar 15 2001Compensation awarded counsel
  Atty Babcock
Mar 26 2001Application for Extension of Time filed
  To file AOB. (4th request)
Apr 5 2001Filed:
  Suppl. declaration in support of 4th request for extension of time to file AOB.
Apr 11 2001Extension of Time application Granted
  To 5/29/2001 to file AOB.
Apr 24 2001Counsel's status report received (confidential)
  from atty Babcock.
May 23 2001Compensation awarded counsel
  Atty Babcock
May 31 2001Application for Extension of Time filed
  To file AOB. (5th request)
Jun 6 2001Extension of Time application Granted
  To 7/30/2001 to file AOB.
Jun 11 2001Counsel's status report received (confidential)
  from atty Babcock.
Jun 14 2001Compensation awarded counsel
  Atty Babcock
Jul 23 2001Application for Extension of Time filed
  To file AOB. (6th request)
Jul 30 2001Extension of Time application Granted
  To 9/28/2001 to file AOB. No further extensions of time are contemplated.
Aug 14 2001Counsel's status report received (confidential)
  from atty Babcock.
Aug 22 2001Compensation awarded counsel
  Atty Babcock
Sep 12 2001Application for Extension of Time filed
  To file AOB. (7th request)
Oct 4 2001Filed:
  Second applicaton in support of 7th request for extension of time to file AOB.
Oct 9 2001Filed:
  Suppl. declaration in support of request for extension of time to file AOB.
Oct 24 2001Extension of Time application Granted
  To 11/27/2001 to file AOB. No further extensions of time will be granted.
Nov 14 2001Counsel's status report received (confidential)
  from atty Babcock.
Nov 14 2001Request for extension of time filed
  to file AOB. (8th request)
Nov 16 2001Extension of Time application Granted
  To 1/28/2002 to file AOB, based on counsel's representation that this is his final application for extension of time to file the AOB. No further extensions of time will be granted.
Dec 7 2001Counsel's status report received (confidential)
  from atty Nishi.
Jan 25 2002Application to file over-length brief filed
  By applt. to file AOB. (562 pp. AOB submitted under separate cover)
Jan 30 2002Order filed
  Applt.'s application to file over-length brief is granted.
Jan 30 2002Appellant's opening brief filed
  (562 pp.)
Feb 26 2002Request for extension of time filed
  To file resp.'s brief. (1st request)
Mar 4 2002Extension of time granted
  To 4/30/2002 to file resp.'s brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is to take all steps necessary to meet this schedule.
Apr 25 2002Request for extension of time filed
  To file resp.'s brief. (2nd request)
May 1 2002Extension of time granted
  To 7/1/2002 to file resp.'s brief. The court anticipates that after date, only one further extension totaling 60 additional days is contemplated.
May 22 2002Compensation awarded counsel
  Atty Babcock
May 28 2002Counsel's status report received (confidential)
  from atty Nishi.
Jun 25 2002Request for extension of time filed
  To file resp.'s brief. (3rd request)
Jun 27 2002Extension of time granted
  To 9/3/2002 to file resp.'s brief. Dep. Atty. General Shum anticipates filing that brief by 12/2/2002. Two further extensions totaling 90 additional days are contemplated.
Aug 27 2002Request for extension of time filed
  To file respondent's brief. (4th request)
Aug 29 2002Compensation awarded counsel
  Atty Nishi
Aug 29 2002Extension of time granted
  to 11-4-2002 to file respondent's brief. After that date, only one further extension totaling 28 additional days is contemplated. Extension granted based upon Deputy AG Shum's representation that she anticipates filing the brief by 12-2-2002.
Oct 17 2002Counsel's status report received (confidential)
  from attorney Nishi.
Oct 31 2002Request for extension of time filed
  To file respondent's brief. (5th reqeust)
Nov 4 2002Extension of time granted
  To 1/3/2003 to file respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Quisteen S. Shum's representation that she anticipates filing that brief by 2/7/2003
Jan 2 2003Request for extension of time filed
  to file informal response. (6th request)
Jan 3 2003Counsel's status report received (confidential)
  from atty Nishi.
Jan 10 2003Extension of time granted
  to 2-7-2003 to file respondent's brief. After that date, no further extension will be granted. Extension granted based upon DAG Shum's representation that she anticipates filing the brief by 2-7-2003.
Feb 7 2003Filed:
  resp's application for leave to file brief exceeding the 280-page limit. (respondent's brief submitted under separate cover)
Feb 13 2003Order filed
  granting application of respondent for leave to file respondent's brief exceeding the 280-page limit.
Feb 13 2003Respondent's brief filed
  (314 pp.)
Mar 19 2003Request for extension of time filed
  to file appellant's reply brief and request for relief from default. (1st request)
Mar 25 2003Order filed
  Appellant's request for relief from default is granted. Extension is granted to 5/5/2003 to file appellant's reply brief. After that date, only three further extensions totaling about 160 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 10/15/2003.
Apr 9 2003Compensation awarded counsel
  Atty Nishi
Apr 28 2003Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Apr 30 2003Extension of time granted
  to 7/7/2003 to file appellant's reply brief. After that date, only two further extensions totaling 100 additional days will be granted. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates tilng that brief by 10/15/2003.
Jun 26 2003Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jul 2 2003Extension of time granted
  to 9/2/2003 to file appellant's reply brief. Extension is granted based upon counsel Russell S. Babcock's representation that he anticipates filing that brief by 9/2/2003. After that date, no further extension is contemplated.
Jul 9 2003Compensation awarded counsel
  Atty Babcock
Aug 13 2003Compensation awarded counsel
  Atty Babcock
Aug 28 2003Request for extension of time filed
  to file reply brief. (4th request)
Sep 3 2003Extension of time granted
  to 11/3/2003 to file appellant's reply brief. The court anticipates that after that date, no further extension will be granted. Counsel is ordered to inform his assisting entity of this schedule, and counsel and his assisting entity are ordered to take all steps necessary to meet it.
Oct 30 2003Appellant's reply brief filed
  (137 pp.)
Dec 23 2003Compensation awarded counsel
  Atty Babcock
Mar 30 2004Counsel's status report received (confidential)
  from atty Nishi.
May 4 2004Compensation awarded counsel
  Atty Nishi
Jun 23 2004Counsel's status report received (confidential)
  from atty Nishi.
Jun 20 2005Motion for access to sealed record filed
  appellant's request for duplication and transmission of material under seal to appellate counsel.
Jun 22 2005Filed:
  supplemental declaration of service of appellant's motion for duplication and transmission of material under seal.
Aug 17 2005Letter sent to:
  respondent soliciting response to "Appellant's Request for Duplication and Transmission of Material Under Seal to Appellate Counsel." Response to be served on appellant and filed on or before 8-24-2005. The response need not be limited to any particular issue raised in the motion. At a minimum, however, respondent should address whether, in order to protect witness safety, access to sealed portions of the reporter's transcript dated September 28, 1993 (RT 290-297) and January 24, 1994 (RT 5123-5127) should be denied entirely, or at least should be limited to appellant's counsel alone and should state that defendant personally shall have no such access.
Aug 22 2005Filed:
  respondent's response to appellant's request for duplication and transmission of material under seal to appellate counsel.
Aug 24 2005Related habeas corpus petition filed (concurrent)
  No. S136672
Sep 21 2005Order filed
  Appellant's Request for Duplication and Transmission of Material Under Seal to Appellate Counsel," filed June 20, 2005, is granted to the following extent: The clerk is directed to provide counsel for appellant with copies of the following sealed materials: portions of the reporter's transcript dated September 28, 1993 (R.T. 290-297), October 22, 1993 (R.T. 344-352), and January 24, 1994 (R.T. 5123-5127), and portions of the clerk's transcript dated January 5, 1994 (C.T. 29-31) and February 14, 1994 (C.T. 37). It is ordered that only counsel for appellant may have access to the portions of the reporter's transcript dated September 28, 1993 (R.T. 290-297), and January 24, 1994 (R.T. 5123-5127). Neither the transcripts nor any information contained in them is to be disclosed to appellant or to any other person. If counsel for appellant wishes to use these materials for any purpose, or to disclose or describe their contents to appellant or any other person, counsel must apply to this court for permission to do so. To the extent the parties quote, disclose, or describe these materials in any such application or in any other court papers, those papers must themselves be filed or lodged under seal. The clerk is directed to keep the foregoing materials under seal. In all other respects, appellant's motion is denied. George, C.J., was absent and did not participate.
Dec 21 2005Compensation awarded counsel
  Atty Babcock
May 17 2006Compensation awarded counsel
  Atty Nishi
Jan 22 2007Exhibit(s) lodged
  People's 1, 3, 4, 5, 6, 7, 8, 65, 93, and 94.
Feb 28 2007Exhibit(s) lodged
  People's no. 104.
Apr 4 2007Oral argument letter sent
  advising counsel that the court intends to schedule this case for argument for either the late May calendar, to be held the last week of May 2007, in San Francisco, or the June calendar, to be held the week of June 4, 2007, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
May 2 2007Case ordered on calendar
  to be argued on Wednesday, June 6, at 1:30 p.m., in Los Angeles
May 15 2007Filed letter from:
  Deputy Attorney General Quisteen S. Shum, dated May 15, 2007, re focus issues for oral argument.
May 24 2007Filed letter from:
  attorney Russel S. Babcock, dated May 22, 2007, re appellant's focus issues for oral argument.
May 31 2007Filed letter from:
  Deputy Attorney General Quisteen S. Shum informing the Court that respondent withdraws the forfeiture argument with respect to Argument 41 (I) of the Appellant''s Opening Brief (AOB 538-543).
Jun 5 2007Received:
  letter from atty Babcock dated May 29, 2007 regarding additional authority.
Jun 6 2007Cause argued and submitted
Aug 8 2007Notice of forthcoming opinion posted
Aug 9 2007Opinion filed: Judgment affirmed in full
  majority opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno, Corrigan, JJ.
Aug 22 2007Rehearing petition filed
  by appellant. (2,956 words; 16 pp.)
Aug 27 2007Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 7, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 24 2007Opinion modified - no change in judgment
Oct 24 2007Rehearing denied
  The request for modification is granted. The petition for rehearing is denied.
Oct 24 2007Remittitur issued (AA)
Nov 1 2007Received:
  receipt for remittitur acknowledged by superior court.
Nov 1 2007Exhibit(s) returned
  to superior court.
Nov 7 2007Received:
  copy of appellant's petition for writ of certiorari. (26 pp. excluding appendix)
Nov 13 2007Received:
  acknowledgment from superior court of receipt for exhibits.
Nov 13 2007Received:
  Letter from U.S.S.C., dated and placed on docket November 8, 2007, advising cert petition filed on November 3, 2007 as No. 07-7539.
Nov 21 2007Received:
  DePriest's application for release of files, records and any confidential materials. (not filed; appellate counsel has not been served.)
Nov 29 2007Motion filed (AA)
  application for release of files, records and any confidential materials (by the Federal Public Defender)
Dec 10 2007Opposition filed
  to application for release of files, records, and any confidential materials by respondent.
Dec 19 2007Compensation awarded counsel
  Atty Babcock
Jan 2 2008Habeas funds request filed (confidential)
Jan 17 2008Compensation awarded counsel
  Atty Babcock
Jan 23 2008Order filed re habeas funds request (confidential)
  re: request filed on January 2, 2008.
Feb 11 2008Filed:
  by petitioner "Response to Respondent's Opposition to Petitioner's Application for Release of Files..."
Feb 19 2008Certiorari denied by U.S. Supreme Court
  (USSC case no. 07-7539)
May 14 2008Motion for access to sealed record granted
  The "Application for Release of Files, Records and Any Confidential Materials," filed November 29, 2007, is granted in part as follows. Petitioner may review and copy the following sealed materials filed in People v. Timothy Lee DePriest, S040527: the portions of the reporter's transcript for hearings held on February 24, 1993 [R.T. 52-53], March 1, 1993 [R.T. 95-100], September 28, 1993 [R.T. 290-297], October 22, 1993 [R.T. 344-352], and January 24, 1994 [R.T. 5123-5127]; pages 20 through 32 and page 37 of the volume of the supplemental clerk's transcript captioned "Re: Hearings," filed in this court on August 16, 2000; the probation report dated May 27, 1994 [C.T. 1890-1909]; the volume of the clerk's transcript captioned "987.9 Material," filed in this court on August 16, 2000; and the unredacted pages of jury selection in an envelope marked "CONFIDENTIAL," filed in this court on August 16, 2000. It is further ordered that only counsel for petitioner, the Office of the Federal Public Defender for the Central District of California, may have access to the sealed portions of the reporter's transcript for the hearings held on September 28, 1993 [R.T. 290-297], and January 24, 1994 [R.T. 5123-5127], pages 20 through 23 and page 32 of the supplemental clerk's transcripts captioned "Re: Hearings," and the unredacted pages from jury selection. Neither the transcripts, any information contained therein, nor any personal information of any juror are to be disclosed to petitioner or any other person. Unless otherwise ordered by this court, all of these sealed documents are to remain under seal, and counsel for petitioner is ordered not to disclose their contents. If counsel wishes to use these materials for any purpose, or to disclose or describe their contents to petitioner or any other person, counsel must apply to this court for permission to do so. To the extent the parties quote, disclose, or describe these materials in any such application or in any other court papers, those papers must themselves be filed or lodged under seal. Petitioner may review and copy the confidential materials in the record in People v. Timothy Lee DePriest, S040527. With respect to any documents in this court's records that are not under seal or otherwise confidential, petitioner's application to copy them is granted. Counsel must supply the personnel and equipment necessary to undertake this examination and copying of the records, which must occur on the premises of the court. Petitioner's application to inspect and copy exhibits admitted at trial, or any other document filed in the superior court, is denied without prejudice because this court's records do not contain these items. Petitioner may apply in the superior court for access to these items.
Mar 16 2009Related habeas corpus petition filed (post-judgment)
  no. S171297.

Jan 30 2002Appellant's opening brief filed
Feb 13 2003Respondent's brief filed
Oct 30 2003Appellant's reply brief filed
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