Filed 11/18/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S058025
v.
San Bernardino County
RICHARD DON FOSTER,
Super. Ct. No. VCR5976
Defendant and Appellant.
A jury convicted Richard Don Foster of the first degree murder of Gail
Johnson (Pen. Code, §§ 187, subd. (a), 189), second degree burglary (Pen. Code,
§ 459), and second degree robbery (Pen. Code, § 211).1 The jury found true the
special circumstance allegations that the murder was committed while defendant
was engaged in the commission or attempted commission of burglary and robbery.
(§ 190.2, subd. (a)(17)(A), (G).) The jury also found true the allegation that
defendant personally used a dangerous and deadly weapon, a knife, in connection
with the murder and the robbery. (§ 12022, subd. (b).) The jury further found that
defendant previously had been convicted of two serious or violent felonies.
(§ 667, subd. (a).) Following the penalty phase of the trial, the jury returned a
verdict of death. Defendant moved for a new trial (§ 1181), to strike the special
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
circumstances, and for modification of the penalty to life imprisonment without
the possibility of parole (§ 190.4, subd. (e)). The trial court denied these motions,
sentenced defendant to death, imposed sentence on the noncapital offenses, and
ordered restitution in the amount of $200. This appeal is automatic. (§ 1239,
subd. (b).) We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase Evidence
1. The prosecution case
a. Summary
In the afternoon of August 26, 1991, Gail Johnson‟s body was found on the
floor of the minister‟s office in the High Desert Church of Religious Science in
Apple Valley (the church). She had been stabbed at least eight times. Her purse
was found on the floor near her body, and her wallet was missing. Blood found in
the minister‟s office matched defendant‟s blood, and the combination of 10
particular sequences of DNA found in the blood would be expected to occur in
approximately one in every 24 million individuals. The victim‟s vehicle was
found in the parking lot of a business that defendant visited on the day of the
crimes. Her wallet was retrieved from a mine shaft in which defendant previously
had disposed of other items. A pair of jeans, stained with blood consistent with
the victim‟s blood, also was found in the mine shaft and were the same brand and
size as the jeans worn by defendant on the day he was arrested. A bloodstain on a
piece of tissue paper found in the mine shaft was consistent with defendant‟s
blood. Defendant had visited the church two days prior to the date of the crimes.
Evidence was received establishing defendant‟s commission of two prior offenses
in which he found women alone in an office and returned to rob and assault them.
2
b. The day of the crimes
Loren West testified that on Monday, August 26, 1991, he visited the
church at approximately 11:20 a.m. to repair the air conditioning, at which time
the victim, Gail Johnson, was in the church office. West recalled opening a locked
box of electrical fuses with a key that he obtained from a box provided by the
victim. After replacing a fuse, he returned the key to the victim in the church
office and departed from the church at approximately 11:45 a.m. He stated that he
saw only one vehicle, other than his own, in the church parking lot, and that the
victim was the only person he saw at the church. At trial, West was shown a
photograph of the keys spread out in a wooden tray at the church office, and
testified he “would not have left the key box open with keys laying everywhere.”
William Rosenthal testified that when he arrived at the church at
approximately 1:00 p.m. that day to deliver stationery, he did not observe any
other vehicles in the parking lot or any other persons in the church office. When
he looked into the minister‟s personal office, he saw a person lying on the floor
next to the desk. When he called into the minister‟s office, the person did not
respond. He reported his discovery to his manager and called 911.
Mike Malloy, who was working that day as an engineer employed by the
Apple Valley Fire District, testified that at approximately 1:00 p.m., he was
assigned to respond to a call regarding “a person down” at the church. He located
the victim on the floor in the minister‟s office, on her back, fully clothed, with
blood on her shirt. Malloy determined she was not breathing and had no pulse.
He testified that after an EKG test revealed that “her heart was systole . . . or flat-
lined,” he did not attempt to revive her.
c. Crime-scene evidence
Dr. Frank Sheridan, the Chief Medical Examiner for the County of San
Bernardino, conducted an autopsy. He testified the victim was 53 years of age,
3
64 inches tall, and weighed 140 pounds. He described numerous defensive
wounds on the victim‟s hands and arms, and confirmed that these wounds “could
occur . . . if someone is slashing at her . . . and she‟s trying to ward off the blows.”
He stated there were bruises on the right side of her nose and jawline that were
consistent with being punched, and a bruise on the back of her head that probably
occurred when the victim fell backward. All of these wounds were inflicted while
the victim was alive.
Sheridan testified that the victim was stabbed once in the neck and at least
seven times in the chest. He did not find anything, such as indentations on the
victim‟s skin, indicating that the knife used in the attack had a handguard that
would have prevented the perpetrator‟s hand from slipping past the handle. He
testified that the neck wound was not as deep as the others, and may have been
inflicted while the victim was standing and the perpetrator held the knife at her
neck. One of the chest wounds was caused by two stabs through the sternum.
Sheridan agreed that if the perpetrator‟s hand had blood on it when the knife hit
the sternum, the perpetrator could have lost his grip and been cut. Sheridan
concluded the victim was lying on her back when the chest wounds were inflicted,
because she had a bruise on the back of her head, the chest wounds occurred in
quick succession, and two of the wounds extended to the back of the ribcage,
indicating that the force of the thrust did not push her body back.
Sheridan examined a photograph of defendant‟s right hand taken
approximately two weeks after the murder. He testified that an injury on
defendant‟s palm was consistent with one that would be suffered if a person were
to stab with a knife and the knife were to slip. Sheridan also testified that
defendant‟s wound would have bled and was consistent with the injury having
occurred two weeks earlier.
4
David Stockwell, a criminalist in the San Bernardino County Sheriff‟s
Department, was assigned to assist in the collection of evidence from the crime
scene. He testified that the victim‟s body was found on the floor of the minister‟s
office, on her back, between the desk and the wall of the office. Under the desk
were numerous items that appeared to be from a purse, and a purse was beneath
shelves that were affixed to the wall. One of the victim‟s shoes was on the floor
near her foot, and her other shoe was on the desk.2 A telephone and telephone
cord also were on the floor, and the office window was broken. Stockwell was
aware that a key was found in the trash can in the minister‟s office. He observed
blood on numerous items in the minister‟s office.
Stockwell received blood samples from the victim and defendant, which he
analyzed to determine 11 genetic markers. His analysis did not involve DNA
directly, but focused instead upon particular proteins produced pursuant to the
donor‟s DNA coding. He testified that the 11 particular markers in defendant‟s
blood appear most frequently in the Caucasian population, and those 11 markers
are found in one in 42,600 Caucasian individuals.
Stockwell analyzed numerous bloodstains found in the church but was
unable to test every stain he collected for each of these 11 genetic markers,
because some of the samples were too small.3 All of the bloodstains for which
2
Malloy, the paramedic, testified that he had moved the victim‟s body one or
two feet away from a bookcase but could not recall whether shoes were on her
feet.
3
Stockwell also testified that many of the bloodstains in the church had been
covered with a white liquid or a white powder spray, and these white substances
rendered the genetic tests on such stains inconclusive. He did not analyze the
liquid or the powder but testified that patches of the white liquid on the floor in the
foyer led to the men‟s restroom, where he noticed a can of Right Guard deodorant
and an empty bottle that appeared to him to have held hand lotion. Dr. Sheridan
(footnote continued on next page)
5
Stockwell obtained testing results were (1) consistent with the victim‟s blood,
(2) consistent with defendant‟s blood, or (3) consistent with a mixture of both
individuals‟ blood. He testified that stains on the victim and on her clothing, and a
blood smear on an ottoman located next to her body, were consistent with the
victim‟s blood. Bloodstains, found on the window blinds in the minister‟s office,
apparently had been deposited as a result of being flung with some force from a
moving object and were consistent with the victim‟s blood. Stockwell analyzed
samples obtained from the purse and concluded two smears were consistent with
the victim‟s blood, three drops were consistent with defendant‟s blood, and two
drops were consistent with a mixture of blood from both individuals. Stockwell
explained that because the mixtures appeared within single drops of blood, the two
sources of blood must have mixed before contacting the surface of the purse.
Bloodstains consistent with a mixture of the victim‟s blood and defendant‟s blood
also were collected from the desk, the chair, two shelves of the bookcase, one of
the shelves affixed to the wall, and the carpet in the minister‟s office. Mixed
stains also were found on the carpet outside the minister‟s office and on the floor
of the church foyer. Finally, bloodstains consistent with only defendant‟s blood
were found on the carpet in the minister‟s office, the floor at the entrance to the
church office, the floor of the foyer, and the drinking fountain in the foyer.
Stockwell testified that samples of the victim‟s blood and defendant‟s
blood, and a sample of a drop of blood obtained from the purse that was consistent
with defendant‟s blood, were sent to Cellmark Diagnostics for DNA analysis.
Dr. Robin Cotton, the laboratory director at Cellmark, explained that her
(footnote continued from previous page)
reported noticing a white substance on the victim‟s body and pants, which he
described as liquid soap.
6
laboratory extracts DNA from cells and analyzes certain DNA sequences that vary
in length among individuals. At Cellmark‟s laboratory, five locations of the DNA
from each of these three blood samples were examined. Each location of the DNA
generated two distinct lengths or “bands,” representing the DNA received from
each parent and resulting in 10 bands to compare. Cotton testified that all 10 of
the bands from the blood on the purse matched the bands from defendant‟s blood.
She also testified that the presence of all 10 of these bands would occur in
approximately one in every 24 million individuals.
Gilbert Johnson, the husband of the victim, testified that she worked as a
volunteer at the church. He identified the purse found in the minister‟s office as
belonging to his wife, and numerous items found on the floor next to her body as
normally kept by her in her purse. He also testified that she had a habit of keeping
at least $50 in her purse. According to Johnson, his wife was strong-willed and
would have resisted an attempt to rob or rape her.
d. Evidence obtained from other sites
On August 26, 1991, at approximately 10:00 p.m., San Bernardino County
Deputy Sheriff Phil Brown located the victim‟s vehicle in the parking lot of a
Lucky store in Apple Valley. Brown testified that the driving distance between
the church and the parking lot was one and one-half miles. Jeffrey Smink, a
forensic specialist with the sheriff‟s department, testified that he did not find any
fingerprints in the passenger compartment but located a bloodstain on the
passenger seat. Stockwell testified that this stain was consistent with a mixture of
the victim‟s blood and defendant‟s blood.
On September 10, 1991, Thomas Bradford, a detective with the San
Bernardino County Sheriff‟s Department, together with defendant‟s parole officer,
Steven Slaten, visited defendant at his residence. Bradford testified that he took
7
possession of the clothes defendant was wearing, including Rustler brand blue
jeans with a 33-inch waist and a 30-inch length, and a blue T-shirt.
On January 11, 1992, Curtis Edwards and his brother found the victim‟s
wallet in a mine shaft while the two men were prospecting in the Mojave Desert.
Edwards testified that the wallet did not contain any cash. He delivered it to the
sheriff‟s department. On January 18, the Edwards brothers led Detective Bradford
to the mine shaft. Bradford testified that he found a pair of Rustler brand blue
jeans, with a 33-inch waist and a 30-inch length, and a blue T-shirt in the mine
shaft, which was located 2.2 miles from defendant‟s residence.
Stockwell analyzed bloodstains found on the pair of jeans and on a piece of
tissue paper found in the mine shaft. He testified that a stain “just above or right
on the right knee” of the jeans was a “saturating” stain, indicating that the “fabric
had come in contact with a fair amount of blood that soaked into that knee area.”
He agreed that such a stain would be formed “if . . . [the victim‟s] blood was on
the ground and [the person wearing the jeans] put their knee in it.” He stated that,
due to the passage of time and the conditions in the mine shaft, the blood had
degraded, and he obtained results for only two genetic markers, both of which
were consistent with the victim‟s blood. With respect to the tissue paper,
Stockwell testified that it was “crumpled,” with what appeared to be a contact
blood smear, “as if someone was grasping that particular item and the blood from
the hand would have bled onto that piece of paper.” Stockwell obtained results for
three genetic markers from the tissue paper, each of which matched defendant‟s
blood.
e. Defendant’s visit to the church on Saturday, August 24, 1991
Irma Plate, the minister of the church, testified that she attended a meeting
at the church on Saturday, August 24, 1991 (two days prior to the murder). She
8
recalled that, at some point that afternoon, Nina Pittsford, a church member, asked
her to speak to a man who had come to the church but was not part of the meeting.
The man identified himself as Martin Jennings and stated that his mother had been
hospitalized.4 He asked Plate to pray for his mother. Plate invited him to write a
prayer request and to place it in the church‟s “prayer request box,” which he did.
She testified that the man spoke with her for a moment or two, and then departed
from the church.
f. Prior criminal conduct
Johnnie C. testified that defendant had robbed and raped her on May 23,
1972, when she was working as a receptionist at the Burns Studio in Boise, Idaho.
She recalled that defendant entered the studio at approximately 11:15 a.m., when
she was alone in the office, and told her he wanted a photograph of himself to send
to his girlfriend. Johnnie testified that defendant left after she scheduled an
appointment for him, but he returned five or 10 minutes later and told her she
should not call his home, because the portrait was to be a surprise for his family.
She recalled that he left again, but returned again five or 10 minutes later,
proceeded down the hall toward the studio‟s workrooms before she was able to
return to the receptionist room, and told her he was “going to rob this place.”
After confirming she was alone, he asked for her purse, which was in the cabinet
behind him. She testified that he took six or seven dollars from her purse. When a
bell on the front door rang, indicating someone had entered the studio, defendant
said, “You better get out there and get rid of them fast or there‟s going to be a lot
of people hurt.” As she showed photographic proofs to the customers, she could
4
Defendant confirmed at trial that he was the man who visited the church on
Saturday and who identified himself as “Martin Jennings.”
9
hear the floor squeak and therefore knew he was standing “right around the
corner” watching her.
Johnnie testified that when the customers left, defendant ordered her to
return to the workroom and sit on a stool. She saw that he had removed the money
from the cash drawer, which was in the same cabinet as her purse, and had marked
over his name in the appointment book. She related that he came toward her and
placed his hands on her breast and thigh, and she jumped off the stool and told him
to leave her alone and to get away. She recalled that he started hitting her in the
face with his fist, splitting open her lip, and then knocked her down. She testified
that every time she tried to get up, he knocked her down with his fist. He told her,
“ „If you don‟t stop fighting, I‟m going to hurt you really bad.‟ ” She therefore
“stopped fighting and just laid there crying and looking off.” He then raped her.
When he started to leave, he said, “ „You better not call the police and you better
forget that you ever saw me or else I‟ll come back and kill you.‟ ” She recalled
that he pulled the telephone from the wall and left through the back door. She
reported that she suffered bruises on her face and body, and that he “hit me a lot in
the abdomen.” She did not see a weapon but thought he told her he had one;
although she “was convinced that he did,” she could not “swear to it.”
After pleading guilty to raping Johnnie C., defendant was sentenced to life
in prison in Idaho. Upon his release on parole on January 18, 1982, he moved to
Apple Valley, California.
Cindy M. testified that defendant robbed and assaulted her on March 29,
1982, when she was working in the office of a solar energy business in Apple
Valley. She testified she was alone in the office when defendant walked in at
approximately 11:00 a.m. and told her he was waiting for a real estate agent to
show him an office. He asked to use the telephone, but when he attempted to
place a call, the telephone was not operative. Cindy then walked to another
10
business‟s office to contact the telephone company. She recalled that when she
returned to her office, defendant inquired whether he could remain there because it
was cold and windy outside. She agreed, and he remained in the office until noon,
when a friend arrived to go to lunch and Cindy asked defendant to leave.
Soon after Cindy returned to her office at approximately 1:30 p.m.,
defendant again appeared and inquired whether he could wait in her office. At
approximately 1:45 p.m., Cindy walked toward the back of her office to obtain
advertising mailers to address, and when she turned around, defendant was
standing immediately in front of her. She testified that he “put [a knife] right to
my throat” and told her to put down the mailers. He pointed to her purse and
asked whether it was hers, and she confirmed it was. He then turned her around so
she was facing the door of the bathroom in her office. She recalled that he handed
her the purse and told her to give him her money. After she took her wallet out of
the purse and gave him the cash, he told her to empty her purse onto the floor,
which she did. When asked whether there was any other money, she told him
there was cash in a box in a desk drawer, but he did not move toward that location.
Instead, he continued to hold the knife to her throat and moved her into the
bathroom. Then he lowered the knife, told her to remove her clothes, and came
closer to her. Cindy testified that she “grabbed his hand with the knife in it and I
just . . . pushed it towards his . . . body. [¶] And we fought and struggled and then
he just started hitting me and he stabbed me, and I went down and he grabbed my
hair and he kneed me under the chin, and then we struggled a bit more and he said,
„Try that again, I‟ll kill you.‟ ” When he came near her again, she “screamed „No‟
and pushed and ran out” the bathroom door and through the front door.
Richard Nester was at the front door, about to open it, as Cindy ran from
defendant. Cindy recalled telling Nester, “He‟s got a knife and he‟s trying to rape
me.” Nester told her to run, and she escaped to the office of another business.
11
Thereafter, she was treated for a stab wound to the left side of her nose, which
went through her nasal passages to the roof of her mouth. She also suffered two
black eyes, two fractured teeth, and some bruises.
Richard Nester testified that as he pushed open the front door, Cindy came
running from the back of the office, with blood streaming down her face, and
screamed at Nester, “ „He‟s got a knife. He tried to rape me.‟ ” Nester recalled
that as he pulled the door closed after Cindy ran out, the person who was
following her stuck his right arm out the door and slashed at Nester with a knife as
Nester tried to hold the door closed. After five or 10 seconds of struggling to hold
the door, Nester ran to the parking lot of a nearby office building and yelled to a
man to call the police, but the man drove away. Nester testified that he returned to
his vehicle and pursued a person who, having run to a white Datsun truck, drove
out of the parking lot ahead of Nester‟s vehicle. Nester described his pursuit of
the Datsun, including his attempt to crowd that vehicle into a guardrail. During
the chase, Nester attracted the attention of a sheriff‟s deputy, who joined the
pursuit and subdued the driver of the Datsun. Nester testified that the man in the
Datsun was the man whom he encountered in Cindy‟s office.
Defendant was convicted of robbery and assault with intent to commit rape
in connection with his attack upon Cindy M. He was sentenced to 13 years in
prison, and was paroled from prison on December 12, 1990.
2. The defense case
a. Expert testimony
Laurence Mueller, an associate professor in the Department of Ecology and
Evolutionary Biology at the University of California at Irvine, testified that the
databases used by Cellmark Diagnostics, which had analyzed the blood samples
(see ante, p. 7), were inadequate for the methods employed by Cellmark. He
12
stated that Cellmark‟s use of the “product rule” — which involves multiplying the
frequencies with which each particular DNA band or length appears in the
population — is flawed if the populations from which data is collected are
heterogenous rather than homogeneous. According to Mueller, forensic
calculations should be based upon the numerous subgroups that make up the major
population groups, and should not be reached by treating a large group of
numerous subgroups as if the group were homogeneous. Mueller advocated use of
the “counting method,” pursuant to which the entire genetic profile is compared to
each genetic profile in the database and only complete matches are included in the
calculations of frequency. Mueller also criticized Cellmark‟s criteria for
determining a match, asserted that Cellmark underestimates the frequency of each
length, and faulted Cellmark for not including in its analysis what Mueller
described as Cellmark‟s “Oriental” database. By including the “Oriental”
database, and by increasing the interval of the lengths that were considered to be
matches, Mueller‟s application of the product rule arrived at a frequency of
defendant‟s DNA match of one in 3.6 million. Taking into account Cellmark‟s
error rate — which Mueller calculated to be one in 139, based upon a false
positive result from a proficiency test in 1988 and a second false positive from
such a test in 1989 — and using the “counting method,” Mueller calculated the
frequency of defendant‟s DNA to be one in 185 or less.
b. Defendant’s testimony
Defendant testified that in 1991, he and his stepfather, Art Jennings, lived
in two trailers, north of Apple Valley, supporting themselves by collecting
recyclable materials. His mother lived out of state, and her health had been
deteriorating due to “a peritoneal infection.” She passed away on October 25,
1991.
13
Defendant related that he learned about the Church of Religious Science
while imprisoned in Idaho, and had visited the church in Apple Valley in 1982,
when its minister was John Dennis. He recalled visiting the church again on
August 24, 1991, to see Reverend Dennis, when he learned that Reverend Plate
was the new minister. He explained that he introduced himself as his half brother,
Martin Jennings,5 because defendant did not have telephone service and the only
telephone number he knew was Martin Jennings‟s number. He confirmed that he
spoke to Reverend Plate about his mother‟s condition and completed a prayer
request, but in contrast to Plate‟s testimony and the rebuttal testimony of Nina
Pittsford, he also testified that he requested, in the presence of Plate and Pittsford,
to use the telephone, and that he entered the minister‟s office and made a call.6
Defendant testified that he then walked from the church to the Lucky store in
Apple Valley, but Art was not there. Defendant then walked to an area containing
service stations where he and Art routinely collected recyclable materials, but Art
was not there, so he walked home, arriving sometime between 3:00 p.m. and
5:00 p.m.
Defendant testified that on August 26, the day of the crimes, he and Art
worked at home until 9:00 or 10:00 a.m., then drove to a bank, a construction
supply store, and a Smart & Final store, where Art purchased chewing tobacco.
Defendant initially testified that when he and Art left Smart & Final at
5
See People v. Jennings (2010) 50 Cal.4th 616.
6
Defendant further testified that he made a single telephone call, to the home
of his mother and Martin Jennings, reached an answering machine, and terminated
the call without leaving a message. He had told an investigator, however, that he
had used the minister‟s telephone to call a hospital and had spoken with a nurse
there. He told another investigator that he had spoken to his brother on the
minister‟s telephone.
14
approximately 1:30 p.m., they went on the first “run,” collecting recyclable
materials, finishing that run at approximately 3:00 p.m. When asked whether he
went “anywhere near” the church on August 26, he provided a revised account of
his day. He testified that the closest he came to the church was the CC Market,
which was approximately one block east of the Lucky store in Apple Valley. He
stated that he was at the Lucky store at approximately 11:00 a.m. and walked to
the CC Market a few minutes later to purchase a carton of cigarettes. He recalled
that when he returned to the Lucky store, he could not find Art. He testified that
he then walked to the area containing the service stations where he and Art usually
collected recyclable materials, but upon not finding Art there, he walked seven or
eight miles back to his residence, remaining there until 5:00 or 6:00 p.m., and then
walked to visit a nearby family.7
With respect to the healing injuries on his right hand, which were
photographed on September 10, 1991, defendant testified that these occurred on
August 22, 1991, when he was collecting recyclable materials from dumpsters.
He stated that although he was left-handed, he used both hands when recycling,
and that he suffered cuts two or three times a week.
Defendant also testified regarding the mine shaft in which the victim‟s
wallet was found. He recalled that on August 16, 1991, he and Art dumped 10 to
15 loads of nonrecyclable “junk” into the mine shaft in which the victim‟s wallet
7
On cross-examination, defendant testified that the CC Market was
approximately one mile from the church, and that it would take him 15 to 20
minutes to walk from the market to the church. He confirmed that if he was at the
market at 11:15 a.m. and walked to the church, he would have arrived there at
approximately 11:35 or 11:40 a.m. As noted above, Loren West left the church at
approximately 11:45 a.m., and William Rosenthal arrived there at approximately
1:00 p.m.
15
was found, but he claimed the jeans and the T-shirt found in the mine shaft were
not his clothes. He stated that the jeans he was wearing on September 10, 1991,
which were the same brand and size as the jeans recovered from the mine shaft,
were Art‟s jeans, which he was wearing because he planned to launder his own
work pants.
The prosecutor showed defendant a photograph of the inside of defendant‟s
trailer, taken on September 10, 1991. Defendant confirmed that a clean pair of
jeans and a blue T-shirt visible in the photograph were his clothes. He also
confirmed that seven or eight pairs of clean pants were visible on hangers in the
photograph, and that clothing in a bucket on the floor was the laundry he was
collecting to wash on September 10. He explained that he was wearing Art‟s jeans
that day because all of his work clothes were dirty, and that not all of his jeans
were work clothes.
The prosecutor also questioned defendant concerning his prior crimes.
Defendant admitted he had robbed and raped Johnnie C. but denied taking her
purse, and claimed he hit her only once, did not hit her hard, and did not knock her
down. Defendant denied robbing and assaulting Cindy M. He admitted visiting
her office to use the telephone in the morning on the day of her assault, but
claimed he was in the parking lot in the afternoon when he heard a scream. He
testified that he then drove away because he was a parolee, and “the next thing I
remember I was up on Apple Valley Road and . . . Nester‟s truck hit the tailgate of
my pick-up.”
3. Rebuttal
Nina Pittsford testified concerning defendant‟s visit to the church on
August 24, 1991. She recalled that defendant told her his mother was hospitalized
due to a heart attack. Pittsford stated she did not “feel right” about defendant, and
16
decided to refer him to Plate, the new minister, and to remain near them. She
testified that defendant did not enter the minister‟s office, and she did not hear him
ask to use the telephone.
B. Penalty Phase Evidence
1. Prosecution evidence
Bunny Lynn Miles testified that she received obscene telephone calls from
defendant in October and December 1989. When she terminated his calls, he
placed additional calls and made threatening statements concerning her daughter,
who was 10 years of age. After one of his calls was traced to Art Jennings‟s
telephone, Miles identified defendant‟s voice at a parole revocation hearing.
Laurel R. testified that on June 13, 1972, when she was 12 years of age, her
mother, Dinah J., gave defendant permission to use the telephone at the family
home in Boise, Idaho. After defendant left, Laurel noticed that he drove by the
house two or three times. Thereafter, she heard her mother screaming for help,
and then observed defendant holding a gun to her mother‟s back. Defendant told
Laurel and four other children that if they moved, he would shoot them. Her
mother offered to leave the house and cash a check for him in the amount of $100.
He agreed, and when he left the house with Laurel‟s mother, he told the children
that the house was being watched and that if they moved, he would shoot them and
their mother.
Dinah J. testified that after she allowed defendant to use the telephone, he
returned and asked to use her telephone again, and as he followed her inside to
make a call, she saw he had a gun. She recounted the events as to which Laurel R.
testified, and also described accompanying defendant to a grocery store, where she
obtained cash for him. Dinah testified that defendant then drove her to an isolated
17
area, raped her twice, and forced her to orally copulate him. After resisting, she
acquiesced when he discharged his firearm in front of her face.
Monica DiVincenzo, the daughter of Gail Johnson, the homicide victim,
identified family members who were in photographs found inside the victim‟s
wallet. She testified that she had visited her mother every day, and that her own
daughter usually stayed with Johnson on Saturday nights and accompanied her to
church on Sundays.
2. Defense evidence
Defendant‟s maternal aunt, Bessie Killebrew, testified that defendant‟s
mother, Pearl, ran away from home at the approximate age of 15 years, and
initially was placed in a “girls‟ home” and later in a mental institution.
Subsequently, Pearl and Ray Foster had 11 children. Killebrew testified that the
Foster family lived in poverty, and she described Ray Foster‟s discipline of the
children, employing a belt, as “a little harsh.” She stated that Ray Foster left the
family in 1954, after the eldest daughter, who was then 12 years of age, accused
him of molesting her. Killebrew recalled that Pearl and her children left Idaho
with Art Jennings in 1955, and that the children were made wards of the State of
Nebraska in 1957.
Art Jennings confirmed that he drove with Pearl and her children to
Nebraska, but he exhibited difficulty in recalling the names and the number of her
children. He denied ever disciplining defendant or any of the other Foster
children. He testified that Pearl told him that her daughter Helen had died when
her son Larry rolled onto Helen and suffocated her during the night. He stated that
the Foster children were removed from Pearl‟s custody while Jennings was in jail,
and that the Nebraska authorities would not tell him or Pearl where the children
were being kept.
18
Four of defendant‟s siblings testified concerning their childhood. Larry
testified that Pearl and Art beat the children, sometimes while the children were
tied up, and forced them to steal. He recalled that the family traveled from state to
state, living in Art‟s vehicle and harvesting crops. He testified that Art killed
Larry‟s sister Helen in the vehicle by smothering her. In 1957, the children were
taken by the State of Nebraska and placed in Whitehall Home for Children. Larry
stated that a housemother at Whitehall taught both defendant and him about sex,
instructing them that “you got to hit them in the mouth before you do anything or
they don‟t like it.” He testified that he and defendant were transferred to a state
mental institution, where they were beaten and sexually abused and drugs were
administered, as were electroshock treatments and “hydrotherapy,” which
involved transferring the subject from hot water to ice water and back again.
Defendant‟s sister Wilma provided similar testimony concerning their time with
Art and Pearl and at Whitehall, and also testified that Pearl accused defendant of
smothering Helen. Another sibling, Steven, corroborated the foregoing testimony
and also recounted that “the first sexual experiences were the girls with Art and
the boys with mom.” The eldest daughter, who ran away before Art joined the
family, testified that her father molested her, with Pearl‟s knowledge, and that
Pearl blamed the daughter for the molestation.
Defendant provided similar descriptions of his childhood and additional
details about his life. Before being sent to Whitehall, he had attended school for a
total of five months. At Whitehall, at 10 years of age, he was placed in first grade,
remaining at that level for two years. During his third year at Whitehall, he
attended eighth grade. He testified he was beaten at Whitehall and ran away on
several occasions in an attempt to find his family. He recalled that, at 12 years of
age, he was accused of attempting to molest a housemother and was sent to a
mental hospital for more than a year, where he received psychotropic medication,
19
hydrotherapy, and electroshock treatment. Defendant also described his criminal
history, which encompassed being kept in custody for all but approximately two
and one-half years of his adult life. During his time in prison, he earned a high
school equivalency degree, was trained as a dental assistant, and was an excellent
worker.
Four individuals who resided at Whitehall contemporaneously with the
Foster children described their experiences. Samuel Zanderholm testified that
children were not allowed to visit their siblings on a daily basis but were permitted
to interact when they encountered each other during free time. He recalled that
some children were spanked with a paddle, and confirmed that “a lot of people”
ran away. He was unaware of any sexual abuse. Esther Zanderholm testified that
life at Whitehall was very regimented, and recalled that lilac branches were used
to whip children. Darlene Cummings testified that Whitehall was a very
controlled environment in which residents had no freedom, making it difficult for
residents to adjust to life outside of Whitehall. She stated she was hit in the mouth
once and her brother was hit with a rubber hose once, but she was unaware of any
sexual abuse. She stated that children who returned to Whitehall from the mental
institution “acted kind of strange and they even looked different,” and she
confirmed that it “was pretty commonly known . . . that if you went to the mental
institution, you got the shock treatment.” Daryld Schlereth confirmed that
spankings and blows to the face were administered by staff at Whitehall. He
testified that most of the teachers and house parents were “pretty decent,” but he
ran away four times because he grew tired of the rules. He stated he had heard
children discuss electroshock treatment when they returned from the mental
hospital, but he never heard about treatment with ice water. When asked whether
he saw defendant get hit, he stated that he thought defendant had been “worked . . .
over a few times like all of us.” He testified that defendant bullied other children,
20
and that defendant became more violent and rebellious after returning from the
mental hospital.
Dr. Edward Fischer, a psychologist, administered various tests to defendant
and conducted interviews concerning his background. He testified that defendant
has an IQ of 112, and no indication of organic brain damage. He concluded
defendant has an “antisocial personality” disorder, and testified that individuals
with this disorder exhibit a low tolerance for frustration and engage in conflict
with authority. According to Fischer, such individuals “can‟t change the way they
behave. [¶] Their emotional responses were conditioned by the earlier emotional
scenarios that were acted out with their family.” He described defendant‟s family
as extremely dysfunctional, with “substantial abuse, incest, thievery.” Documents
reviewed by Fischer disclose that when defendant was institutionalized in
Nebraska, questions were raised concerning whether he could adjust to life outside
an institution. According to Fischer, defendant could function well in a highly
structured environment such as a prison.
James Park, a former associate prison warden at San Quentin State Prison,
addressed the issue of prison security. He stated that an individual sentenced to
life imprisonment without the possibility of parole would be placed in the level-
four security classification, which is the highest security level for the general
prison population. He added that even if such a prisoner eventually is reclassified
for level-three confinement, he or she will be guarded by the same level of
perimeter security and gun coverage as a level-four prisoner. He stated that
although level-four prisoners may work, go to the exercise yard, and participate in
programs such as Alcoholics Anonymous, their schedules are very regimented.
He testified that defendant was an excellent worker in prison and, in Park‟s
opinion, would “pay his way” in prison and “contribute to the safe, good operation
of a prison.”
21
II. DISCUSSION
A. Pretrial Issues
1. Physical restraint of defendant at trial
At trial, defendant was restrained by a stun belt and leg restraints. He
contends these restraints violated his rights of confrontation, due process, a fair
trial, the assistance of counsel, and a reliable determination of the issues of guilt
and penalty, as well as the presumption of innocence, under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
The prosecutor moved for an order permitting the use of physical restraints
upon defendant, based upon his escape from Idaho State Penitentiary in 1973 and
his flight from Richard Nester after defendant attacked Cindy M. At a hearing on
the motion, defense counsel stated that the defense did not object to an electronic
security belt, but did oppose leg restraints. The trial court concluded that
defendant “has, over the years, exhibited violence and also a firm commitment to
escape when he decided to do that.” The court further concluded that “this is a
case in which we should not just rely upon the belt, because, although the belt is
handled by extremely competent people, you never know what‟s going to
happen.”
“[A] defendant cannot be subjected to physical restraints of any kind in the
courtroom while in the jury‟s presence, unless there is a showing of a manifest
need for such restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291; see
also Deck v. Missouri (2005) 544 U.S. 622, 629 [“the Fifth and Fourteenth
Amendments prohibit the use of physical restraints visible to the jury absent a trial
court determination, in the exercise of discretion, that they are justified by a state
interest specific to a particular trial”]; People v. Stevens (2009) 47 Cal.4th 626,
632-633 [reviewing principles concerning physical restraints]; People v. Mar
22
(2002) 28 Cal.4th 1201 [addressing factors to be considered in evaluating whether
a stun belt should be used].)
Defendant did not object to being restrained or to the use of a stun belt as a
restraint. Therefore, he has forfeited his claim to the extent he contends he should
not have been restrained at all, or that the stun belt was an inappropriate form of
restraint. (See People v. Ward (2005) 36 Cal.4th 186, 206; People v. Tuilaepa
(1992) 4 Cal.4th 569, 583 (Tuilaepa I), affd. sub nom. Tuilaepa v. California
(1994) 512 U.S. 967 (Tuilaepa II).)
We need not decide whether the trial court abused its discretion in
concluding that defendant also should be constrained by leg restraints, because
there is no evidence suggesting that any juror observed the use of these restraints.8
“We have consistently found any unjustified or unadmonished shackling harmless
where there was no evidence it was seen by the jury. [Citations.]” (Tuilaepa I,
supra, 4 Cal.4th at pp. 583-584; see also People v. Anderson (2001) 25 Cal.4th
543, 596.)9
8
Defendant asserted at oral argument that the trial court acknowledged the
jury would see the restraints. On the contrary, the trial court questioned defense
counsel‟s assertion that the restraints would be visible to the jury, inquiring:
“What makes you think that?” Defense counsel responded: “[D]uring the course
of the length of this trial, the jury obviously is going to see that [defendant] is in
custody. In fact, our questionnaire addresses that issue.” The court then stated,
“They are going to know.” Defense counsel echoed, “They are going to know,”
and the trial court added, “Even if it wasn‟t addressed.” Thus, the trial court‟s
comment acknowledged that the jury would be aware defendant was in custody,
not that the jury would observe the restraints. In any event, as noted, there is no
evidence suggesting the jury saw the restraints.
9
Respondent contends defendant forfeited his constitutional claims by
failing to assert them in the trial court. When “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
(footnote continued on next page)
23
2. Voir Dire of Prospective Jurors
Defendant claims the trial court‟s examination of the prospective jurors was
inadequate to reveal bias, and that the jury included jurors who were biased
against defendant. He contends the trial court‟s examination violated Code of
Civil Procedure section 223, and resulted in a denial of his rights to a fair trial, a
fair and impartial jury, due process of law, and reliable guilt and penalty
determinations under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution, and article I, section 16 of the California Constitution.
In 1996, when defendant‟s case was tried, Code of Civil Procedure former
section 223 specified that “the court shall conduct the examination of prospective
jurors,” and also provided that the court had discretion to permit the parties to
engage in further inquiry.10 In the present case, the examination of prospective
jurors initially was conducted through a questionnaire. The trial court rejected
defendant‟s request that the questionnaire set forth six categories of views
concerning the death penalty, rather than the five categories identified in the
prosecution‟s proposed questionnaire, and also rejected defendant‟s objections to
(footnote continued from previous page)
the Constitution,” a “defendant‟s new constitutional arguments are not forfeited on
appeal.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) Defendant‟s
challenge on appeal is merely a constitutional “gloss” upon an objection raised
below, and therefore is not forfeited.
10
Code of Civil Procedure former section 223 provided: “In a criminal case,
the court shall conduct the examination of prospective jurors. However, the court
may permit the parties, upon a showing of good cause, to supplement examination
by such further inquiry as it deems proper . . . . [¶] . . . [¶] The trial court‟s
exercise of its discretion in the manner in which voir dire is conducted shall not
cause any conviction to be reversed unless the exercise of that discretion has
resulted in a miscarriage of justice, as specified in Section 13 of Article VI of the
California Constitution.”
24
the manner in which the prosecution had defined these categories. The court
informed defendant, however, that “during the Hovey voir dire, you will have
great latitude in phrasing the questions your way using your chart [of
classifications] and saying I think this is a better way, let‟s explore it with you.”
(See Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 [voir dire that addresses
issues related to the death penalty “should be done individually and in
sequestration”]; see also People v. Cunningham (2001) 25 Cal.4th 926, 973, fn. 5
[Code Civ. Proc., § 223 abrogates Hovey‟s requirement of individual and
sequestered voir dire].) The trial court confirmed with defense counsel that the
prosecution‟s questionnaire addressed all of the issues that the defense wanted
addressed and was not phrased in a manner that was argumentative or that would
require the jurors to prejudge the evidence.11 The court also reiterated that “over
and above the questionnaire, counsel is going to have extremely wide latitude in
terms of the Hovey voir dire and in terms of the voir dire of the jurors [once] they
are seated as a group in the box . . . .”
Before distributing the questionnaire, the trial court read to the prospective
jurors the charges and allegations against defendant, informed them that defendant
had pleaded not guilty, and explained that the People bore the burden of proving
those charges and allegations beyond a reasonable doubt. After considering
claims of hardship, the court explained that if the jury found defendant guilty of
11
The jury questionnaire was 29 pages in length and posed 137 questions,
some with multiple subparts. Defendant concedes on appeal that the questionnaire
addressed most of the areas of inquiry specified in section 8.5 of the California
Standards of Judicial Administration, and he does not contend the questionnaire
was inadequate. (See People v. Holt (1997) 15 Cal.4th 619, 661 [directing,
subsequent to the trial in the present matter, that trial courts “should closely follow
the language and formulae for voir dire recommended by the Judicial Council in
the Standards [of Judicial Administration]”].)
25
murder in the first degree and found a special circumstance allegation to be true,
there would be a second phase of the trial during which the jurors would be
presented with evidence concerning aggravating and mitigating circumstances and
would be asked to decide between the punishments of death and life imprisonment
without the possibility of parole. The court read to the prospective jurors the
description of aggravating and mitigating factors set forth in section 190.3, and
stated that “we need to select people who can fairly choose one punishment over
the other” rather than individuals who would be committed in advance to selecting
one of the two punishments over the other. The court explained that all of the
prospective jurors would receive a questionnaire, and that none of them should
“hold back with regard to any feelings you might have on any issue that is raised.”
After the prospective jurors returned the questionnaires, counsel were
afforded time to review the answers and then were allowed to question the jurors.
The trial court did not pose any oral questions to the prospective jurors, nor did it
limit the parties‟ questioning of them.
Defendant did not object to the manner in which voir dire was conducted,
nor did he indicate he believed the trial court should undertake examination in
addition to the questions posed by the questionnaire and the unlimited questioning
afforded defendant and the prosecution. Defendant therefore has forfeited his
claim that the voir dire was inadequate. (See People v. Taylor (2010) 48 Cal.4th
574, 608 [the defendant forfeited his claim of inadequate voir dire “because his
counsel failed to suggest followup questions . . . or otherwise complain about the
adequacy of the trial court‟s voir dire”]; People v. Rogers (2009) 46 Cal.4th 1136,
1149 (Rogers) [“Defendant neither objected to the questionnaire used, nor
proposed any modifications of additional questionnaire inquiries. He therefore has
forfeited any claim that the questionnaire and its contents were inadequate to root
out any pro-death-penalty bias on the part of the prospective jurors”]; People v.
26
Robinson (2005) 37 Cal.4th 592, 620 [“If counsel had believed that further inquiry
was necessary . . . , he could have submitted additional questionnaire inquires or
suggested additional oral questions. . . . [D]efense counsel‟s failure to do so
forfeits the claim on appeal”].)
Defendant‟s claim also fails on the merits. The trial court examined the
prospective jurors through the comprehensive questionnaire (see Code Civ. Proc.,
former § 223 [“the court shall conduct the examination of prospective jurors”])
and afforded defendant unlimited voir dire. As in Rogers, “[t]hese procedures
„provided an adequate basis upon which the parties were able to exercise
challenges for cause as well as peremptory challenges.‟ (People v. Robinson,
supra, 37 Cal.4th at p. 618 [addressing a similar questionnaire with followup trial
court questioning]; see People v. Carter [(2005)] 36 Cal.4th [1215], 1251 [voir
dire found more than adequate when written juror questionnaires were used, and
each side was given very limited time to voir dire but also given the opportunity to
request additional court-conducted followup questions].)” (Rogers, supra, 46
Cal.4th at pp. 1150-1151.) In these circumstances, the trial court had no duty to
compel counsel to explore more thoroughly the views of the prospective jurors, or
to engage itself in additional questioning. (See People v. Stewart (2004) 33
Cal.4th 425, 458 [additional areas of inquiry might have assisted defense counsel
in exercising challenges, but such inquiry was not constitutionally compelled]; see
also Ristaino v. Ross (1976) 424 U.S. 589, 594-595 [“Voir dire „is conducted
under the supervision of the court, and a great deal must, of necessity, be left to its
sound discretion.‟ [Citations.] This is so because the „determination of
impartiality, in which demeanor plays such an important part, is particularly
within the province of that trial judge.‟ ”].)
Finally, although defendant did not challenge any of the seated jurors for
cause and did not exhaust the peremptory challenges available to him, he contends
27
the verdicts must be set aside because six jurors were biased against him. (See
Johnson v. Armontrout (8th Cir. 1992) 961 F.2d 748, 754 [“When a defendant
fails to object to the qualifications of a juror, he is without remedy only if he fails
to prove actual bias”].) “Actual bias” is “the existence of a state of mind on the
part of the juror in reference to the case, or to any of the parties, which will
prevent the juror from acting with entire impartiality, and without prejudice to the
substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C); People
v. Hillhouse (2002) 27 Cal.4th 469, 488.)
Our review of the record reflects that none of the six jurors challenged by
defendant exhibited actual bias against him. Although Juror No. 1‟s questionnaire
stated she was unwilling to weigh and consider all aggravating and mitigating
factors, further questioning revealed that she was confused by the questionnaire‟s
inquiry, and that she would weigh and consider such factors. Although Juror No.
3 favored the death penalty, indicated that his background in law enforcement
would make it difficult to be fair and impartial, expressed skepticism concerning
psychological evidence, and stated he would “have to be really convinced” of the
mitigating factors, he also responded that he would not always vote for the
punishment of death, would weigh and consider the aggravating and mitigating
factors, could be a fair and impartial juror in the present case, and would listen to
both sides. Contrary to defendant‟s assertion, Juror No. 7 did not state he would
vote for the punishment of death if defendant “did the crime.” Rather, he
answered “yes” in response to the question “if you were convinced . . . that he . . .
did the crime and deserves the death penalty, you could vote for the death
penalty?” Juror No. 10 stated she “would lean towards the death penalty
probably,” but would not always vote for death and would consider aggravating
and mitigating factors. She agreed with defense counsel‟s characterization of her
position as “very pro death as far as the death penalty.” When the prosecutor
28
inquired whether she “could listen to both sides and be fair and make a proper
decision,” she responded, “I think so, as much as anybody can. I‟m not sure. It
would be very difficult, but I think that I can.” Juror No. 11 indicated during voir
dire that she would not consider “a person‟s life story” or psychological evidence,
and then stated that she would “have to hear it or see it.” When defense counsel
explained that he was referring to “any evidence you hear, [that] we ask you to
weigh and consider,” she responded, “Oh, yeah, that‟s exactly what I would do.”
Finally, Juror No. 12 indicated on his questionnaire that he neither favored nor
opposed the death penalty, and was willing to weigh and consider all of the
aggravating and mitigating factors. Defendant quotes Juror No. 12‟s statement
that “to kill another person should warrant the death penalty,” but defendant omits
the last three words of the statement — “based on circumstances.” Defendant also
points to Juror No. 12‟s statement, in response to the question whether he had
discussed the death penalty with his spouse or friends, that “senseless killing
warrants the death penalty,” and the juror‟s reference to prisoners who have been
sentenced to life imprisonment without the possibility of parole as “being catered
to for a crime committed.” None of these six jurors‟ statements reflect actual bias
against defendant.
B. Guilt Phase Issues
1. Admission of evidence of prior crimes
Defendant contends the trial court‟s admission of evidence of his prior
crimes violated Evidence Code sections 1101 and 352, depriving him of his rights
to a fair trial, to present a defense, and to due process of law, and rendered the
guilt and penalty phase determinations unreliable, in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
29
The People moved in limine to admit the testimony of Johnnie C. and
Cindy M. concerning defendant‟s prior robberies and assaults. This evidence was
offered to prove identity, a common plan, and intent. (Evid. Code, § 1101,
subd. (b).) To establish that the prior crimes were admissible, the People
emphasized the number of similarities between each of them, respectively, and the
charged offenses that are the subject of the present automatic appeal. With respect
to the attack on Cindy M. and the charged offenses involving Gail Johnson, the
People stated that (1) the two incidents occurred within three-quarters of a mile of
each other, in a relatively rural town area, Apple Valley, (2) both occurred
between noon and 1:30 p.m., (3) both occurred in an office, (4) both female
victims were working alone, (5) defendant had visited each site before the crimes
occurred, (6) during his earlier visits to both sites, defendant provided a false story
with respect to the purpose of his visit, (7) the contents of both victims‟ purses
were emptied onto the floor, (8) the victims‟ purses were placed on the floor,
(9) the victims were moved to a back area, (10) Cindy M. was told to disrobe, and
one of Gail Johnson‟s shoes was found on top of the desk, (11) both victims
resisted and were stabbed, and (12) each attack occurred shortly after defendant
was released on parole.
The People also observed that, although no knife was seen or used in the
attack on Johnnie C. in Boise, Idaho, that attack shared many of the 12 foregoing
similarities between the attack on Cindy M. and the present offenses.
Defense counsel argued that the two prior attacks were not sufficiently
similar to the charged crimes to be relevant. He challenged the view that the
Cindy M. incident and the charged offenses occurred in a small area of a rural
town, stating that the population of “[t]he metropolitan area of Apple Valley,
Victorville, Hesperia and other adjacent and contiguous communities is
considerably in excess of 100,000.” With respect to the time of day, the office
30
setting, and the presence of only the female victim, counsel claimed it would be
necessary to know the number of similar crimes committed in the area in order to
determine the uniqueness of these characteristics. He also asserted that defendant
did not present a false story at the church — his mother was ill, and he was
concerned about her. With respect to the presence of a purse and its spilled
contents on the floor, counsel stated that “[t]here is only one quick method to find
items contained in a purse.” He also argued that because the prior crimes involved
sexual assaults, the evidence was unduly inflammatory, and jurors would be
tempted to convict him of the charged crimes if they believed he should have
served more time for the prior crimes.
The trial court concluded the crimes exhibited common features that were
sufficiently distinctive to support the inference that the same person committed all
three crimes pursuant to a common scheme and with the same intent, and that the
probative value of the evidence outweighed the risk of undue prejudice. The court
instructed the jury, pursuant to CALJIC No. 2.50, that “[s]uch evidence, if
believed, was not received and may not be considered by you to prove that
defendant is a person of bad character or that he has a disposition to commit
crimes. [¶] Such evidence was received and may be considered by you only for
the limited purpose of determining if it tends to show: [¶] A characteristic
method, plan or scheme in the commission of criminal acts similar to the method,
plan or scheme used in the commission of the offense in this case which would
further tend to show the existence of the intent which is a necessary element of the
crime charged or the identity of the person who committed the crime, if any, of
which the defendant is accused.”
“Evidence that a defendant has committed crimes other than those currently
charged is not admissible to prove that the defendant is a person of bad character
or has a criminal disposition; but evidence of uncharged crimes is admissible to
31
prove, among other things, the identity of the perpetrator of the charged crimes,
the existence of a common design or plan, or the intent with which the perpetrator
acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence
of uncharged crimes is admissible to prove identity, common design or plan, or
intent only if the charged and uncharged crimes are sufficiently similar to support
a rational inference of identity, common design or plan, or intent. [Citation.]”
(People v. Kipp (1998) 18 Cal.4th 349, 369.)
“The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent. [Citation.] . . . In order to be
admissible to prove intent, the uncharged conduct must be sufficiently similar to
support the inference that the defendant „ “probably harbor[ed] the same intent in
each instance.” [Citations.]‟ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380,
402 (Ewoldt).) “A greater degree of similarity is required in order to prove the
existence of a common design or plan. . . . [E]vidence of uncharged misconduct
must demonstrate „not merely a similarity in the results, but such a concurrence of
common features that the various acts are naturally to be explained as caused by a
general plan of which they are individual manifestations.‟ ” (Ibid.) “The greatest
degree of similarity is required for evidence of uncharged misconduct to be
relevant to prove identity. . . . [T]he uncharged misconduct and the charged
offense must share common features that are sufficiently distinctive so as to
support the inference that the same person committed both acts. [Citation.] „The
pattern and characteristics of the crimes must be so unusual and distinctive as to be
like a signature.‟ [Citation.]” (Id. at p. 403.) “ „ „The highly unusual and
distinctive nature of both the charged and [uncharged] offenses virtually
eliminates the possibility that anyone other than the defendant committed the
charged offense.” [Citation.]‟ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1003
(Hovarter).)
32
If evidence of prior conduct is sufficiently similar to the charged crimes to
be relevant to prove the defendant‟s intent, common plan, or identity, the trial
court then must consider whether the probative value of the evidence “is
„substantially outweighed by the probability that its admission [would] . . . create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.‟ (Evid. Code, § 352.)” (Ewoldt, supra, 7 Cal.4th at p. 404.) “Rulings made
under [sections 1101 and 352] are reviewed for an abuse of discretion.
[Citation.]” (People v. Mungia (2008) 44 Cal.4th 1101, 1130.) “Under the abuse
of discretion standard, „a trial court‟s ruling will not be disturbed, and reversal . . .
is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice.‟ [Citation.]” (Hovarter, supra, 44 Cal.4th at p. 1004.)
As we explain below, the trial court did not abuse its discretion in
concluding that the evidence was relevant to prove defendant‟s intent and plan, or
in concluding that its probative value with respect to these two issues was not
substantially outweighed by the probability that its admission would create a
substantial danger of undue prejudice. In addition, because evidence of prior
conduct may be admitted to prove a defendant‟s intent and plan, regardless of
whether it also is relevant to prove the defendant‟s identity as the perpetrator, we
need not decide whether the evidence was admissible to prove defendant‟s
identity. Assuming, without deciding, that the jury should not have been
instructed that it could consider the evidence to establish defendant‟s identity as
the perpetrator, any error in this jury instruction was harmless. Finally, neither the
admission of the evidence, nor the instruction that the evidence was relevant to
establish defendant‟s identity as the perpetrator, violated defendant‟s rights to a
fair trial, to present a defense, to due process of law, and to reliable determinations
of the issues of guilt and penalty.
33
We begin our analysis by noting the similarity between the prior crimes and
the charged offenses. The evidence established defendant‟s pattern of visiting an
office in the middle of the day, determining that a woman was alone in the office,
returning in the middle of the day, moving the woman to a more remote area of the
premises, demanding the woman‟s money and any other cash available on the
premises, and violently attacking her when she resisted. If the jury found that
defendant was the perpetrator of the charged crimes, the pattern of his prior crimes
strongly suggested that at the time he returned to the church two days after his
initial visit in the middle of a weekday, when there was only one vehicle in the
church‟s parking lot and after learning that the minister was a woman, he entered
the church with the same intent as reflected in his prior crimes — to determine that
a woman was alone, to move her to a more private area of the premises, and to rob
and assault her, pummeling her with his fists and stabbing her with his knife if
necessary to subdue her. These common features manifest the same general plan,
and therefore support a finding that defendant acted in accordance with that plan.
Defendant asserts that any probative value of the prior-crimes evidence was
minimized by differences between the charged crimes and the prior crimes. First,
he contends, the prior crimes were “fundamentally dissimilar to the charged
crimes in that the former crimes were committed for the purpose of sexual
gratification whereas the current crimes had no such hallmarks.” We disagree.
The three incidents were quite similar, as far as they all progressed. Each involved
the robbery of a woman alone in an office, and each involved a violent
confrontation. The first confrontation ended when Johnnie C. relented in the face
of defendant‟s violent attack, and the second ended when Cindy M. escaped after
defendant assaulted and threatened to kill her. That the violent confrontation in
the current case ended in death rather than a sexual assault does not detract
significantly from the pattern reflected in the three incidents. For these same
34
reasons, we also reject the related contention that it was “purely coincidental” that
the victims were women.
Second, defendant, noting he was identified by the victims of the prior
crimes, asserts that he made no effort before or during the prior crimes to conceal
his identity from the victims. In contrast, “[i]n the current case, the perpetrator
was not personally identified by any witness, and considerable efforts were made
after the killing to preclude the possibility of identification.” In connection with
the crimes committed against Johnnie C., however, defendant marked over his
name in the studio appointment book. In addition, defendant‟s violent assault
upon Cindy M. suggests that he would have killed her in order to avoid detection,
had she not escaped. His flight from Nester also reflected the measures he would
take to avoid apprehension. Finally, to the extent the evidence reflects increasing
efforts to avoid apprehension and conviction, such efforts reasonably might be
expected from a person who repeatedly has been apprehended for his crimes.
Third, defendant asserts that the passage of time between the incidents
reduced the probative value of the evidence. The passage of time is explained,
however, by defendant‟s incarceration for the major portions of the periods
between the offenses. (See People v. Lewis (2009) 46 Cal.4th 1255, 1287 (Lewis)
[noting that the defendant had been incarcerated much of the time between the
prior misconduct and the charged crimes].)
Our conclusion that defendant‟s prior crimes were relevant to prove that
defendant had the same intent and plan when he returned to the church does not
end our inquiry. “[T]o be admissible such evidence „must not contravene other
policies limiting admission, such as those contained in Evidence Code section 352.
[Citations.]‟ [Citation.] We thus proceed to examine whether the probative value
of the evidence of defendant‟s uncharged offenses is „substantially outweighed by
the probability that its admission [would] . . . create substantial danger of undue
35
prejudice, of confusing the issues, or of misleading the jury.‟ (Evid. Code,
§ 352.)” (Ewoldt, supra, 7 Cal.4th at p. 404.)
As reflected in our analysis of the similarity of the three crimes, the
tendency of the prior offenses to establish defendant‟s intent and the general plan
of his actions in the church is strong. If, as established by the evidence,
defendant — after learning two days earlier that the minister was a woman —
returned to the church in the middle of a weekday when there was only one
vehicle in the parking lot, moved the victim from the church office to the
minister‟s personal office, and robbed and assaulted her, his prior crimes provided
persuasive proof that when he returned to the church he did so with the intent to
rob and assault any woman he found alone, demanding money from the victim,
assaulting her, and killing her when she resisted. In addition, the evidence is not
merely cumulative of other evidence concerning defendant‟s intent and the actions
he took after entering the church, because the balance of the evidence does not
render his intent and actions beyond dispute. (See Ewoldt, supra, 7 Cal.4th at
p. 406 [“if it is beyond dispute that the alleged crime occurred,” evidence of
uncharged conduct to demonstrate a common design or plan “would be merely
cumulative and the prejudicial effect of the evidence of uncharged acts would
outweigh its probative value”].)
“Evidence is prejudicial within the meaning of Evidence Code section 352
if it „ “uniquely tends to evoke an emotional bias against a party as an individual” ‟
[citation] or if it would cause the jury to „ “ „prejudg[e]‟ a person or cause on the
basis of extraneous factors.” ‟ [Citation.]” (People v. Cowan (2010) 50 Cal.4th
4401, 475.) With respect to the risk of undue prejudice, defendant observes that
evidence of other crimes is “inherently prejudicial.” (See Ewoldt, supra, 7 Cal.4th
at p. 404.) “As Wigmore notes, admission of this evidence produces an „over-
strong tendency to believe the defendant guilty of the charge merely because he is
36
a likely person to do such acts.‟ [Citation.] It breeds a „tendency to condemn, not
because he is believed guilty of the present charge, but because he has escaped
unpunished from other offences . . . .‟ [Citation.] Moreover, „the jury might be
unable to identify with a defendant of offensive character, and hence tend to
disbelieve the evidence in his favor.‟ [Citation.]” (People v. Thompson (1980) 27
Cal.3d 303, 317, fn. omitted.) Due to these inherent risks, “uncharged offenses are
admissible only if they have substantial probative value.” (Id. at p. 318, italics in
original; see Ewoldt, supra, at p. 404.) For the reasons set forth above, the
evidence of defendant‟s prior crimes has substantial probative value with respect
to the issues of intent and a common plan. Therefore, the inherent risks did not
preclude the admission of this evidence.
Defendant identifies as an additional risk of undue prejudice the
circumstance that he had been sentenced to lengthy prison terms for the prior
crimes, but had been released from prison. He asserts that no jury would acquit
him in light of his prior record. Defendant served significant prison terms for the
prior offenses, however — almost 10 years in Idaho State Penitentiary, and seven
years in California. (See Lewis, supra, 46 Cal.4th at p. 1287 [“Because defendant
was convicted of the prior rape and sentenced to prison, „the jury would not be
tempted to convict [him] simply to punish him for the other offenses . . . .‟ ”].)
We perceive minimal if any risk that the jury would conclude he was not the
perpetrator of the charged crimes, but would convict him based upon the view that
17 years in prison for his prior crimes was inadequate punishment.
Finally, defendant characterizes his prior crimes as “highly inflammatory
and prejudicial.” Although the prior crimes were violent and sexual, they were
less inflammatory than the evidence in the present case, in which defendant
repeatedly stabbed the victim as she lay on the floor. (See People v. Demetrulias
(2006) 39 Cal.4th 1, 18-19 [in evaluating whether the probative value of an
37
uncharged crime was outweighed by its potential for prejudice, the court noted
that the uncharged incident involved a very serious assault, but the charged
incident was a homicide].) In addition, as in Demetrulias, the jury was instructed
not to consider the evidence to prove that defendant was a person of bad character,
thereby “minimizing the potential for improper use.” (Id. at p. 19.)
In sum, we conclude the trial court did not abuse its discretion in
determining that the evidence reflected similarities between the prior crimes and
the charged offenses sufficient for the evidence to be relevant to prove defendant‟s
intent and common plan in committing the current offenses. We also uphold the
trial court‟s exercise of discretion in determining that the probative value of this
evidence was not outweighed by the risk of undue prejudice.
Defendant contends, however, that the evidence could not be admitted for a
purpose other than identity if the identity of the perpetrator was in dispute. We
have rejected this argument. “As we recently observed in Alcala [v. Superior
Court (2008)] 43 Cal.4th 1205, a fact finder properly may consider admissible
„other crimes‟ evidence to prove intent, so long as (1) the evidence is sufficient to
sustain a finding that the defendant committed both sets of crimes [citations], and
further (2) the threshold standard articulated in Ewoldt can be satisfied — that is,
„the factual similarities among the charges tend to demonstrate that in each
instance the perpetrator harbored‟ the requisite intent. [Citations.] There is no
requirement that it must be conceded, or a court must be able to assume, that the
defendant was the perpetrator in both sets of offenses.” (People v. Soper (2009)
45 Cal.4th 759, 778.)
As noted above, the trial court instructed the jury that the evidence of
defendant‟s prior crimes also could be considered with respect to the issue of the
38
identity of the perpetrator.12 We need not decide whether the prior crimes were
sufficiently similar to the charged offenses to be relevant to the issue of identity,
because any error in the court‟s instruction was harmless. (People v. Watson
(1956) 46 Cal.2d 818, 836 [“a „miscarriage of justice‟ should be declared only
when the court, „after an examination of the entire cause, including the evidence,‟
is of the „opinion‟ that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error”].) As noted
above, the evidence was admissible, regardless of whether it was relevant to the
issue of identity. Thus, the jury would have heard this evidence even if the trial
court had not admitted it to establish defendant‟s identity as the perpetrator. In
addition, as summarized below, there is overwhelming evidence establishing that
defendant was, in fact, the perpetrator of the charged crimes. Finally, the
prosecutor, in his arguments to the jury, stated that the evidence of defendant‟s
prior crimes was insufficient to establish defendant‟s identity as the perpetrator.
Therefore, it is not reasonably probable that a result more favorable to defendant
would have been reached in the absence of the reference in the jury instruction to
proof of identity.
Blood found at the crime scene was consistent with defendant‟s blood, and
the DNA profile would occur in only one in every 24 million Caucasian
12
The trial court instructed the jury, pursuant to CALJIC No. 2.50, that the
evidence of other crimes could be considered “only for the limited purpose of
determining if it tends to show: [¶] A characteristic method, plan or scheme in
the commission of criminal acts similar to the method, plan or scheme used in the
commission of the offense in this case which would further tend to show the
existence of the intent which is a necessary element of the crime charged or the
identity of the person who committed the crime, if any, of which the defendant is
accused.”
39
individuals.13 Even when the defense expert expanded the interval of DNA
lengths considered to be matches and applied the “product rule” to a database that
included additional ethnic groups, the frequency of defendant‟s DNA was
determined to be only one in 3.6 million persons. Also, the defense expert did not
challenge Stockwell‟s conclusion that the proteins present in defendant‟s blood
and in blood found at the crime scene would appear in only one in every 42,600
Caucasians. Although the defense expert rejected the validity of the product rule,
he also testified that in the hundred cases in which he had testified, all of the
approximately 12 laboratories involved had employed the product rule rather than
his preferred “counting method.”
In addition to the blood evidence, numerous other facts established
defendant‟s identity as the perpetrator: (1) items stolen from the victim were
found in the same mine shaft in which defendant disposed of “junk,” (2) a pair of
jeans of the same brand and size as those worn by defendant when he was arrested,
with the knee area soaked with blood consistent with the victim‟s blood, was
found in the same mine shaft, (3) the blood on a piece of tissue paper that was
found in the mine shaft, and appeared to have been held by a bleeding hand, was
13
Defendant asserts that “[t]he blood evidence was suspect by virtue of
possible contamination during collection and improper procedures.” Although
Stockwell testified that much of the blood was covered with white substances that
rendered the tests on such stains inconclusive, there was no evidence establishing
that the blood samples for which results were obtained were contaminated.
Defendant also cites the defense expert‟s opinion that Cellmark Diagnostics
should have conducted additional independent proficiency testing rather than
internal proficiency testing. The record establishes, however, that bloodstains
were preserved for testing by the defense, and no evidence was presented
suggesting that Cellmark‟s testing of the stains in the present case was not
proficient. On the contrary, the defense expert employed Cellmark‟s test results as
the basis for his own calculations.
40
consistent with defendant‟s blood, (4) the cut on defendant‟s hand was consistent
with the type of injury a person would sustain if his or her hand slipped while
stabbing with a knife, (5) defendant had visited the church only two days prior to
the charged offenses, (6) the church was a 15- to 20-minute walk from the Lucky
store, where defendant parted company with his stepfather approximately 45
minutes before the crimes were committed, (7) the victim‟s vehicle was
abandoned at the same Lucky store, and (8) on the day in question, defendant
became separated from his stepfather, in contrast to their usual routine of
collecting recyclable materials together.
Finally, although defendant denied he was the perpetrator, his testimony
tended to establish he was not being truthful. Not only did his testimony conflict
with the testimony of Reverend Plate and Nina Pittsford regarding his statements
and activities at the church on Saturday, but he repeatedly was impeached with
statements he made to interrogating officers following his arrest.14
14
In addition to the conflicting statements made by defendant regarding his
claimed presence in the minister‟s office two days before the crime was committed
(see ante, fn. 5 and accompanying text), defendant made inconsistent statements
concerning his route to the church on Saturday. He testified at trial that he
traveled to the church by walking from his residence to the church, but he told
investigators he had walked there from the Lucky store. In addition, defendant
testified he went to the CC Market on Monday to purchase a carton of cigarettes,
generally purchasing a carton every 10 to 12 days. He told investigators that he
had bought a carton of cigarettes on Saturday. When asked at trial why, if he
bought a carton of cigarettes on Saturday, he was buying another carton on
Monday, he responded, “I have no idea.” Not only did these inconsistencies draw
into question his veracity, they also suggested that he had contrived his claim of
using the minister‟s telephone on Saturday in order to explain the presence of any
of his fingerprints on the telephone found on the floor at the crime scene, and that
he was conflating the facts of two visits to the church.
41
Not only was the evidence of defendant‟s identity overwhelming, but the
arguments of defense counsel and the prosecutor informed the jurors that they
should not rely upon defendant‟s prior crimes in determining the identity of the
perpetrator of the charged offenses. Defense counsel asserted that the evidence of
defendant‟s prior crimes was of no probative value with respect to defendant‟s
identity, and the prosecutor stated to the jury that “just the fact that he commits the
crime, these kind of crimes in this particular way, well, that of course doesn‟t
mean he did this one. If that‟s all the evidence we had, we wouldn‟t be here,
correct? But that isn‟t all the evidence that we have.” The prosecutor then
reviewed for the jury the extensive evidence of defendant‟s identity as the
perpetrator.
Defendant asserts that the admission of the evidence in question violated
his federal constitutional rights, but he does not specifically address the prejudice,
if any, resulting from the jury instruction. First, because the evidence was relevant
to prove a fact of consequence, its admission did not violate defendant‟s due
process rights. (See McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384
[“Because the evidence . . . makes a fact of consequence . . . more probable, its
admission was not in violation of the historically grounded rule against the use of
„other acts‟ evidence to prove character”].) Second, any error in the instruction‟s
reference to the evidence as relevant to prove defendant‟s identity as the
perpetrator would not constitute a violation of defendant‟s due process rights,
because the instruction did not “infect[] the entire trial.” (Estelle v. McGuire
(1991) 502 U.S. 62, 72 [“The only question for [a federal court] is „whether the
ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process‟ ”].) “It is well established that the instruction „may not be
judged in artificial isolation,‟ but must be considered in the context of the
instructions as a whole and the trial record.” (Ibid., italics added.) The
42
overwhelming evidence of identity, and the arguments of counsel, which focused
the jury upon this overwhelming evidence and advised jurors not to base a finding
of identity upon defendant‟s prior crimes, lead us to conclude that the instruction
did not corrupt the factfinding process. On this record, the jury instruction‟s
reference to evidence of defendant‟s identity did not affect defendant‟s federal
constitutional rights to a fair trial, to present a defense, to due process of law, and
to reliable determinations of the issues of guilt and penalty.
In a related contention, defendant asserts that even if Cindy M.‟s testimony
was admissible, Nester‟s testimony concerning defendant‟s flight from that
incident was not. The People‟s motion in limine represented that the prior crimes
would be proved by the testimony of Johnnie C. and Cindy M., and by certified
copies of the convictions. During defendant‟s opening statement, however,
defense counsel stated that defendant would tell the jury he was not guilty of the
attack upon Cindy M. Shortly after Nester began testifying, defense counsel
objected, asserting that this testimony was inadmissible under Evidence Code
sections 352 and 1101 and was not within the scope of the trial court‟s order
granting the in limine motion. The prosecutor responded that Nester‟s testimony
“is necessary to identify the defendant as Cindy [M.‟s] attacker. As counsel said,
if the defendant wasn‟t her attacker, this witness will prove that he was because he
chased him down and nabbed him.” The trial queried, “What about that?”
Defense counsel responded, “His testimony is not relevant until Mrs. [M.]
testifies.” The court then asked whether Cindy M. would testify. The prosecutor
confirmed she would, and the trial court overruled defendant‟s objection to
Nester‟s testimony.
Defendant asserts that the trial court overruled his objection “[w]ithout
discussing or ruling on the Evidence Code [section] 352 grounds.” The court was
not required, however, to discuss section 352 before ruling. “ „[A] court need not
43
expressly weigh prejudice against probative value or even expressly state that it
has done so, if the record as a whole shows the court was aware of and performed
its balancing function under Evidence Code section 352.‟ ” (Lewis, supra, 46
Cal.4th 1255, 1285.) The record reflects that the trial court followed proper
procedure in ruling upon defendant‟s objection. In ruling upon the motion in
limine to admit evidence of defendant‟s prior crimes, the court considered both
Evidence Code section 1101 and section 352. When defendant objected that
Nester‟s testimony did not come within section 1101 or within the trial court‟s
earlier ruling, and raised a further objection under section 352, the trial court
elicited an explanation from the prosecutor concerning the purpose for which
Nester‟s testimony was being offered, and requested a response from defense
counsel. In reply, defense counsel stated simply that Nester‟s testimony was not
relevant until Cindy M. testified; he did not suggest that there existed any other
obstacle to the admission of Nester‟s testimony. Thus, it appears the trial court
considered all of the relevant factors in ruling on the objection.
Defendant also asserts that the probative value of Nester‟s testimony was
outweighed by its prejudicial effect. He notes that prison and court records
established that defendant was convicted of the crimes committed against
Cindy M., and that she would testify that he was the perpetrator. When the trial
court requested a response to the prosecutor‟s rationale for admitting this
evidence, however, defense counsel did not claim that the documentation of the
convictions rendered the testimony cumulative. With respect to the prejudicial
effect of Nester‟s testimony, defendant refers to “the strong likelihood that the jury
would conflate the 1982 flight with guilt and the issue of penalty.” Nester‟s
testimony, however, added minimal additional prejudice to the defense beyond
that emanating from Cindy M.‟s testimony, and paled in comparison to the
evidence of defendant‟s prior crimes, rendering it unlikely that Nester‟s testimony
44
had any undue impact upon the jurors‟ consideration of the issues of guilt or
penalty. Finally, the trial court instructed the jury concerning the limited purposes
for which evidence related to the prior crimes could be considered, and directed
that the jurors were “not permitted to consider such evidence for any other
purpose.”15 (See People v. Yeoman (2003) 31 Cal.4th 93, 139 (Yeoman) [the court
presumes that jurors understand and follow instructions concerning the purposes
for which particular evidence may be used].) For all of these reasons, we conclude
the trial court did not abuse its discretion in determining that the probative value of
Nester‟s testimony was not outweighed by any undue prejudicial effect of this
testimony.
2. Cross-examination of defendant regarding his prior crimes
Defendant asserts the trial court misled him and induced him to waive his
privilege against self-incrimination by the court‟s (1) agreeing that defendant
could be asked only whether he had been convicted of an offense, and that
defendant could not be questioned concerning the evidence underlying any such
prior offense, and (2) subsequently allowing cross-examination concerning the
facts of the prior similar offenses of which defendant had been convicted.
Defendant contends the trial court‟s actions denied him his rights to a fair trial, to
due process, and to reliable determinations of guilt and penalty guaranteed by the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
15
Defendant asserts the trial court did not instruct the jury concerning the
limited purposes for which Nester‟s testimony could be considered. The relevant
limiting instruction referred to evidence “introduced for the purpose of showing
that the defendant committed crimes other than that for which he is on trial, to wit:
the crimes against Cindy [M.] and Johnnie [C.].” Nester‟s testimony, all of which
related to the crimes against Cindy M., clearly was covered by this instruction.
45
The record does not support defendant‟s contention. Before defendant
testified, the court and the parties discussed the extent to which the prosecutor
would be permitted to impeach defendant with five prior convictions. Nothing
said during the two court hearings at which the issue of impeachment was
discussed related to the scope of cross-examination of defendant or to the bearing
of defendant‟s prior crimes on the prosecutor‟s right to cross-examine defendant.
In this context, the trial court agreed with defense counsel that only the fact of
convictions, and not their details, would be admissible for impeachment purposes.
Subsequently, as the direct examination of defendant was nearing
completion, the prosecutor noted that defendant had not been questioned
concerning his two prior similar crimes, and offered legal authority concerning
cross-examination related to those crimes. Defense counsel objected to cross-
examination on this subject on the grounds that it would (1) exceed the scope of
the direct examination, and (2) not be sufficiently relevant. He stated that the
prosecutor had been allowed to present his “version” of the prior similar acts, and
that allowing cross-examination would “only prolong the trial and lead to other
issues.”
The trial court concluded that when a defendant denies the charges, he or
she may be cross-examined with respect to every issue related to the defendant‟s
guilt and credibility, citing People v. Thornton (1974) 11 Cal.3d 738, 760 (by
denying guilt, the defendant placed the issue of his identity as the perpetrator in
issue, and the prosecutor therefore could attempt to establish on cross-examination
the defendant‟s involvement in other offenses that were admitted to prove the
existence of an offender in common) and People v. Ing (1967) 65 Cal.2d 603, 611
(because the defendant on direct examination denied the charged offenses, he
could be cross-examined concerning collateral offenses). Defense counsel
46
reiterated that the prosecution had proved the prior similar crimes by a
preponderance of the evidence and that the defense had not refuted this evidence.
The record establishes that neither the trial court nor the parties assumed
that the ruling concerning the admission of the evidence of defendant‟s five prior
convictions for impeachment purposes also related to the scope of cross-
examination concerning the evidence of defendant‟s two prior similar offenses.
Defendant did not assert that the court already had decided the issue of the
appropriate scope of cross-examination, or that the court‟s ruling concerning
impeachment evidence had led him to believe that cross-examination concerning
the two similar crimes would not be allowed. Rather, defendant argued that the
prosecution had established the facts it was entitled to prove, and that cross-
examination of defendant was not sufficiently relevant and was beyond the scope
of his direct testimony. In addition, defendant‟s arguments opposing cross-
examination were based upon legal principles different from his earlier arguments
against admission of the details of his five prior convictions as impeachment
evidence. This difference in the two arguments reflects the circumstance that the
defense understood that two separate issues were involved. In sum, the trial court
never ruled that the prosecutor could not cross-examine defendant concerning his
prior similar offenses, and there is nothing to suggest that defense counsel
believed the trial court had precluded such cross-examination.16
16
The record also reflects that defendant had decided to testify before there
was any discussion of the allowable scope of impeachment or cross-examination.
During his opening statement at the guilt phase, defense counsel stated that
defendant, “when he takes the stand, will admit that he was guilty in Idaho [of
attacking Johnnie C.] and . . . will tell you . . . he‟s not guilty of that 1982 offense”
against Cindy M. After Dr. Mueller testified for the defense at the guilt phase, the
court asked defense counsel “[h]ow much longer do you think, in terms of
(footnote continued on next page)
47
3. Third-party contacts with jurors
Defendant contends that third-party contacts with jurors during the trial
tainted the jury, resulting in a presumption of prejudice, thereby violating his
rights to a fair trial, trial by an impartial jury, due process, and reliable guilt and
penalty determinations, in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.
On Monday, April 1, 1996, before the cross-examination of defendant
resumed at the guilt phase, the court informed counsel that Juror No. 9 had
reported at 5:00 p.m. on Friday that notes had been left on the windshield of his
vehicle, and that he had been somewhat concerned by the notes. The court further
explained that the juror had learned that “it was his friend who was leaving him
notes, and it turns out to be no big deal, but if you want to examine the juror about
it, we can.” Defense counsel inquired concerning the contents of the notes, and
the bailiff reported that the juror “says he threw them out because they were from
his buddy.” Both sides favored further inquiry, and Juror No. 9 was brought into
the courtroom to be questioned. He stated that “[i]t happened on Wednesday and
Thursday and it turned out a friend of mine . . . saw my vehicle in the parking lot.
He . . . told me at choir practice Thursday he was playing a little joke on me.” The
court asked, “Pretty funny?” The juror responded, “It wasn‟t for me at the time.”
The court then asked the juror about “the nature of the notes.” The juror
responded, “the first one said something about knowing that I had two dogs; I like
country music — which I do — and then the other one said something like — said
I looked up; I looked down — and I can‟t remember exactly. It just didn‟t make
(footnote continued from previous page)
witnesses, . . . your case will take?” Defense counsel responded that defendant
“will take the stand tomorrow morning.”
48
any sense.” He confirmed that the incidents caused him concern. The court
asked, “[W]as there anything in any of these notes about this trial or duties as a
juror?” The juror responded, “[N]o, because like I said I went to choir practice
Thursday night and he says . . . to me: Did you see the notes on your car? And he
explained it to me.” The court asked, “[W]ould getting those notes in any way
affect your service as a juror on your decision in this case?” The juror responded,
“I don‟t think so.” The court asked whether counsel wished to inquire, and both
sides stated they did not. When asked whether the juror had mentioned the
incidents to any other jurors, he disclosed that he had mentioned to one juror,
No. 12, receiving a note, and that this juror had seen him taking a note off of the
windshield. The court admonished Juror No. 9 not to discuss the incident with the
other jurors, and Juror No. 9 left the courtroom. The court then asked, “Does
anybody feel we have to do anything with regard to this juror?” Defense counsel
and the prosecutor each responded, “No.”
The court asked that Juror No. 12 be brought into the courtroom, at which
point the bailiff disclosed that she had asked Juror No. 9 in front of all of the jurors
whether Juror No. 9 had a note with him. The prosecutor suggested the court
bring the entire panel into the courtroom and inform them that the note was from a
friend. The court proposed to “bring in the one first and then the whole panel.
Anybody object to that procedure?” Both sides stated they did not object. The
court then questioned Juror No. 12, who confirmed he had seen Juror No. 9
receive a note on his vehicle. The court informed Juror No. 12 that Juror No. 9
had been concerned about the notes prior to learning that a friend was leaving the
notes, and that the notes were not related to the trial. The court inquired: “Would
seeing him get notes or knowing that affect you in any way?” Juror No. 12
responded, “No.” The court then asked, “That wouldn‟t affect our decision in this
case?” Again the juror responded, “No.” The court asked, “Does any counsel
49
wish to inquire?” Both sides responded, “No.” When the court instructed Juror
No. 12 not to discuss the incident with the other jurors, he agreed not to do so.
The court stated it intended to make the same inquiry of the panel as a
whole. The prosecutor asked that the court also order the jurors “to disregard
anything about the notes, not to consider it in any way, has nothing to do with the
case.” The court agreed, and asked, “Anything else?” Defense counsel
responded, “No.” The entire panel was brought into the courtroom, and the court
stated that a juror had received notes on his windshield on two successive days,
and that the juror learned on Thursday that the notes were a joke his friend was
playing. The court explained that the incident “had nothing to do with the trial,”
and inquired: “Having heard about the note or notes under the circumstances,
does that cause anybody concern?” The panel responded in the negative. The
court then asked, “Is there anybody who would be affected in any way by that
circumstance?” Again the panel responded in the negative. The court concluded
by instructing the jury “to disregard that occurrence. It was a joke arising out of a
friendship and has nothing to do with the trial.”
The second incident was brought to the attention of counsel on April 2,
1996, after both sides rested at the guilt phase. The court informed counsel that
Juror No. 7 had overheard persons in the parking lot commenting to each other
that Juror No. 7 was a juror in this case and that one would not want to be a juror
in the case. The court asked, “Does anybody want to inquire?” Defense counsel
asked whether Juror No. 7 had revealed the identity of the individuals, and the
bailiff stated that the juror did not know who they were. The trial court again
inquired whether anyone wished to question the juror. The prosecutor stated,
“Might be a good idea to bring him in and ask him what happened and ask him to
put it out of his mind, not let it affect him at all. It‟s not evidence in this case.”
50
Juror No. 7 was brought into the courtroom, and the court questioned him
concerning the incident. The juror stated that as he walked from his van to the
courtroom after returning from the lunch break that day, “two people . . . were
behind me. And one of the persons said there is one of the jurors on the trial,” and
the second person responded to the first person, “I wouldn‟t want to be a juror on
this trial.” Juror No. 7 added, “I don‟t know if they are in here or part of what‟s
happened, but that‟s all that was said.” The court asked whether he recognized the
individuals, and the juror indicated he did not. The court asked the juror to look
around the courtroom to see whether they were present. The juror looked, and
replied “No.” The court inquired, “[W]hat sort of impression did that make upon
you?” The juror responded, “Didn‟t bother me in any way, shape, or form. It‟s
just I was identified as one of the jurors.” The court asked, “Do you think that that
would bother you at all in terms of performing your functions as a juror?” Juror
No. 7 responded, “No, your honor.” The court asked, “Would it affect the way
you view this case in any way?” He responded, “No, your honor.” The court
asked whether counsel wished to inquire. The prosecutor stated he did not, but
asked that the juror be admonished to disregard the incident. The court then
instructed Juror No. 7 “not to mention this to anybody else and any of the other
jurors, . . . and to disregard whatever you may have heard.” The juror responded,
“Yes, your honor.”
As our review of the trial court‟s investigation reflects, the court questioned
the jurors, invited counsel to question them, and admonished them. At no time did
defense counsel propose additional questions, object to any juror‟s continued
service, or request a mistrial on the ground of juror misconduct. Therefore,
defendant has forfeited his claim. (Lewis, supra, 46 Cal.4th at p. 1308; People v.
51
Stanley (2006) 39 Cal.4th 913, 950.)17 As discussed below, the record also
establishes that the claim fails on the merits.
“ „In a criminal case, any private communication, contact, or tampering,
directly or indirectly, with a juror during a trial about the matter pending before
the jury is, for obvious reasons, deemed presumptively prejudicial . . . . The
presumption is not conclusive, but the burden rests heavily upon the Government
to establish . . . that such contact with the juror was harmless to the defendant.
[Citations.]‟ (Remmer v. United States (1954) 347 U.S. 227, 229.” (Lewis, supra,
46 Cal.4th at p. 1309; see In re Hamilton (1999) 20 Cal.4th 273, 294-295 [“A
sitting juror‟s involuntary exposure to events outside the trial evidence, even if not
„misconduct‟ in the pejorative sense, may require similar examination for probable
prejudice”].) “The presumption of prejudice „ “may be rebutted . . . by a
reviewing court‟s determination, upon examining the entire record, that there is no
17
Defendant asserts he has not forfeited this claim, because defense counsel
expressed concern about the notes left for Juror No. 9 and requested an inquiry,
and because the court initiated an inquiry concerning Juror No. 7. These
circumstances do not preserve his claim, because defense counsel thereafter
expressed no dissatisfaction with the inquiry or with the jurors‟ continued service.
Defendant also asserts his challenge is not forfeited to the extent it involves
the trial court‟s instruction, following its inquiry concerning the notes left for Juror
No. 9, that the jury should “disregard that occurrence. It was a joke arising out of
a friendship and has nothing to do with the trial.” Defendant does not identify any
error in this instruction, nor does he explain how the instruction affected his
substantial rights. (See § 1259 [“The appellate court may . . . review any
instruction given, . . . even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby.”].)
Finally, defendant asserts it would have been futile to object after the court
concluded that the jurors were not tainted by the incidents. This contention
ignores the trial court‟s repeated invitations to counsel to pose questions or
identify any concerns, and defense counsel‟s silence in the face of that offer.
52
substantial likelihood that the complaining party suffered actual harm.”
[Citations.]‟ [Citations.]” (Lewis, at p. 1309.)
Defendant challenges the adequacy of the trial court‟s questioning of the
jurors. He states that Juror No. 9 “was permitted simply to describe the contents
of one note and make them appear simply as jokes, not threats as he had
previously stated.” As our review reflects, Juror No. 9 described the content of
both notes to the extent he could recall their content, and explained that they
caused him concern until his friend explained they were a joke. No further inquiry
was necessary to evaluate the situation and the propriety of the juror‟s continued
service. Defendant also complains that “[t]he court did not inquire whether Juror
No. 12 had spoken further with Juror No. 9 about the incident or with other jurors
and, if so, what may have been said.” Once the court made its inquiry, the
mystery concerning the notes was solved, and it was determined they were a
“joke.” The relevant inquiry at that point related to any impact the incident may
have had upon the jurors, and it was unnecessary to determine the details of any
and all conversations concerning the notes.
Finally, defendant asserts the trial court should have determined whether
other jurors overheard the comments heard by Juror No. 7, whether this juror had
overheard other similar comments, and whether other jurors had been involved in
similar incidents. The information provided by Juror No. 7 did not give rise to any
inference that another juror was present when the comments were made, or that
this juror had overheard other similar comments, or that other jurors had been
involved in similar incidents. In these circumstances, the trial court was not
required to undertake an investigation to determine what had not happened. (See
Lewis, supra, 46 Cal.4th at p. 1309, fn. 38 [“the trial court was not required to
confirm in greater detail exactly what [the juror] did not discuss with her
husband”].)
53
Defendant also contends that the information obtained through the court‟s
questioning of the jurors failed to rebut the presumption of prejudice. We
disagree. The content of the notes left for Juror No. 9 was unrelated to the trial,
and Juror No. 9‟s responses established that, although the notes were not amusing
“at the time,” he had learned the notes were a joke. The juror did not believe that
receiving the notes would affect his service on the jury. Similarly, Juror No. 12
was informed the notes were a joke and were unrelated to the trial, and he
confirmed the incident would not affect him in any way. Defendant‟s speculation
that Juror No. 9‟s “concern” — from the time he received the first note on
Wednesday until his friend revealed the joke on Thursday evening — might have
caused him to become fearful or resentful of defendant, or that Juror No. 12 would
be apprehensive or biased, was rebutted by the responses of these jurors to the
court‟s inquiries. Nor do we believe it is reasonable to infer that this incident led
Juror No. 9 and Juror No. 12 to lose their impartiality as a result of concern about
community expectations. Finally, any inference that Juror No. 7‟s awareness that
two persons walking in the court parking lot knew he was a juror, and that one of
the two would not want to serve as a juror on the case, would lead him to fear
community reaction to his service as a juror, was dissipated by Juror No. 7‟s
response that the comments “[d]idn‟t bother me in any way, shape, or form” and
would not affect his service as a juror. Our review of the record fails to disclose
any substantial likelihood that any juror was biased or prejudiced against
defendant as a result of these incidents.18
18
As in Lewis, supra, 46 Cal.4th 1255, “[d]efendant cites no authority
requiring different or additional analysis in connection with his contention that the
failure to dismiss [these jurors] violated his right to a reliable verdict under the
Eighth Amendment. (See People v. Williams (1997) 16 Cal.4th 635, 666 [„the due
process clause of the Fourteenth Amendment . . . requires the sentencing jury to be
(footnote continued on next page)
54
4. Trespass as a lesser included offense
Defendant contends the trial court erred in failing to instruct the jury on the
court‟s own motion with respect to trespass as a lesser included offense of
burglary, in violation of his rights to due process, a fair trial, and a reliable
determination of guilt and penalty guaranteed by the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
“It is the „court‟s duty to instruct the jury not only on the crime with which
the defendant is charged, but also on any lesser offense that is both included in the
offense charged and shown by the evidence to have been committed.‟ [Citation.]”
(People v. Gutierrez (2009) 45 Cal.4th 789, 826; see Beck v. Alabama (1980) 447
U.S. 625, 637.) As we recently reiterated, however, trespass is a lesser related
offense, not a lesser included offense, of burglary. (People v. Taylor, supra,
48 Cal.4th 574, 622; People v. Birks (1998) 19 Cal.4th 108, 136 (Birks).) “[T]here
is no federal constitutional right of a defendant to compel the giving of lesser-
related-offense instructions. [Citation.]” (People v. Rundle (2008) 43 Cal.4th 76,
148 (Rundle).) Regardless of defendant‟s legal and factual theories concerning
how his conduct may have constituted trespass, that potential crime nonetheless
remains at most a lesser offense related to (but not included in) the offense of
burglary.
Defendant notes, however, that at the time his crimes were committed and
his trial was held, this court agreed with various other jurisdictions that it would be
“fundamentally unfair to deny the defendant the right to have the court or jury
consider the „third option‟ of convicting the defendant of [a lesser] related
(footnote continued from previous page)
impartial to the same extent that the Sixth Amendment requires jury impartiality at
the guilt phase of the trial.‟].)” (Lewis, supra, 46 Cal.4th at p. 1309, fn. 39.)
55
offense.” (People v. Geiger (1984) 35 Cal.3d 510, 520.) This circumstance is of
no assistance to defendant. In Birks, we overruled Geiger and provided that our
holding generally should be applied retroactively. (Birks, supra, 19 Cal.4th at
p. 136; see also Rundle, supra, 43 Cal.4th 76, 147.) As in Birks, the retroactive
application of our holding to defendant‟s case “merely withdraws the procedural
opportunity for conviction of a reduced offense not encompassed by the
accusatory pleading and selected solely by defendant,” and “neither expands
criminal liability nor enhances punishment for conduct previously committed.”
(Birks, supra, 19 Cal.4th at p. 136.) In any event, Geiger afforded a right to
instructions on related offenses only if the defendant requested such instructions,
and defendant did not request an instruction concerning trespass.
5. Burden of proof with respect to identity
Defendant contends that the jury instructions eliminated the prosecution‟s
burden to prove beyond a reasonable doubt that defendant was the person who
committed the charged offenses, in violation of his rights to a fair trial by jury, due
process of law, and reliable determinations of guilt and penalty, as guaranteed by
the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Defendant notes that the trial court‟s instructions concerning the charged
offenses and special circumstances did not specify that the identity of the
perpetrator was an element and that, on the contrary, the trial court instructed that
identity was not an element of the charged offenses.19 Defendant also notes that
19
The trial court instructed the jury as set forth in CALJIC 2.72: “No person
may be convicted of a criminal offense unless there is some proof of each element
of the crime independent of any admission made by him outside of this trial. [¶]
The identity of the person who is alleged to have committed a crime is not an
element of the crime nor is the degree of the crime. Such identity or degree of the
crime may be established by an admission.” (Italics added.)
56
the court did not instruct, as set forth in CALJIC No. 2.91, that the prosecution
bore the burden to prove beyond a reasonable doubt that defendant was the person
who committed the charged offenses.
As we explained in People v. Frye (1998) 18 Cal.4th 894 (Frye), the
instruction that identity is not an element of the crime “is part of the standard
instruction explaining the principles of the corpus delicti rule . . . . [¶] Under this
instruction, the jury is informed that the defendant cannot be convicted of a crime
unless there is proof as to each element of the offense independent of his
extrajudicial confession or admission.” (Id. at pp. 959-960.) We also observed
that, although the jury was not instructed pursuant to CALJIC No. 2.91 concerning
the prosecution‟s burden to prove the identity of the perpetrator, “the challenged
instruction did not relieve the prosecution from proving that defendant committed
the charged crimes.” (Frye, at p. 960.) Finally, we concluded in Frye that, “[i]n
light of the parties‟ steadfast focus on the issue of identity at trial, including the
consistent position by the defense that defendant did not kill the [victims] and the
extensive evidence presented by the People connecting him to the crimes, . . . there
is no reasonable likelihood the jury would have understood the prosecution had no
obligation to prove defendant was the person who committed the offenses.”
(Ibid.)
Defendant urges us to revisit our decision in Frye, supra, 18 Cal.4th 894,
for two reasons. First, he asserts, “CALJIC No. 2.72 clearly and unambiguously
informed the jury that identity was not an element of any charged crime and did
not have to be proved.” CALJIC No. 2.72 did not state, however, that identity
“did not have to be proved.” Rather, it instructed that elements of a crime must be
proved by evidence independent of any admission made by the defendant outside
of the trial, but that the perpetrator‟s identity, which is not an element, may be
57
established by an admission. Contrary to defendant‟s assertion, the instruction‟s
statement that “[s]uch identity . . . may be established by an admission” reflects a
recognition that identity must be established.
Second, defendant asserts, the court in Frye erred in applying the harmless
error standard. The court did not find error in that case, however, nor did it
evaluate whether any error was harmless. Rather, the court considered whether
there was any reasonable likelihood the jury would have misunderstood the
instructions, and concluded there was not. (Frye, supra, 18 Cal.4th at pp. 959-
960; see People v. Maury (2003) 30 Cal.4th 342, 443 [“In assessing the instruction
to determine whether the jury was adequately guided under the Eighth or
Fourteenth Amendment, we look to whether it is reasonably likely the jury
understood the instruction and correctly applied it”].)
In the present case, as in Frye, the parties presented extensive evidence
concerning the identity of the perpetrator. Moreover, the instructions describing
the possible verdicts repeatedly referred to findings that defendant was or was not
guilty of the charges, and the instruction explaining the presumption of innocence
and the prosecution‟s burden stated that “[t]his presumption [of innocence] places
upon the People the burden of proving him guilty beyond a reasonable doubt.”
(CALJIC No. 2.90.) We conclude there is no reasonable likelihood that the jury
could have understood the instructions to relieve the prosecution of the burden of
proving beyond a reasonable doubt the identity of the perpetrator.
6. Jury instructions concerning prior crimes
Defendant contends the jury instructions concerning evidence of his prior
crimes permitted the ultimate facts of his identity and his intent with respect to the
present charges of murder, burglary, and robbery to be found by a preponderance
of the evidence, in violation of his rights to due process, a fair trial by jury, and a
58
reliable determination of guilt and penalty as guaranteed by the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.20
As explained below, the instructions given in the present case, taken
together, properly informed the jury that (1) it could not consider the evidence of
defendant‟s prior crimes unless it found those crimes proven by a preponderance
of the evidence; (2) it could not find defendant guilty unless the prosecution
proved the charged offenses beyond a reasonable doubt; and (3) if the evidence of
prior crimes was necessary to prove an essential fact, the jury could not rely upon
that evidence unless the prosecution proved the prior crimes beyond a reasonable
doubt.
The trial court instructed the jury, pursuant to CALJIC No. 2.50, that
evidence introduced for the purpose of showing that the defendant committed
crimes against Cindy M. and Johnnie C. could be considered “only for the limited
purpose of determining if it tends to show: [¶] A characteristic method, plan or
scheme in the commission of criminal acts similar to the method, plan or scheme
used in the commission of the offense in this case which would further tend to
show the existence of the intent which is a necessary element of the crime charged
or the identity of the person who committed the crime, if any, of which the
defendant is accused.” The court also instructed the jury, pursuant to CALJIC No.
2.50.1, that “such other crime or crimes purportedly committed by the defendant
. . . against Cindy [M.] and Johnnie [C.] must be proved by a preponderance of the
evidence. You must not consider such evidence for any purpose unless you are
satisfied that the defendant committed such other crime or crimes. [¶] The
20
Respondent contends defendant forfeited this claim by failing to object to
the jury instructions. Because defendant‟s claim of error would affect his
substantial rights, we address it, despite his failure to object. (§§ 1259, 1469.)
59
prosecution has the burden of proving these facts by a preponderance of the
evidence.” Finally, pursuant to CALJIC No. 2.50.2, the court explained the
meaning of “preponderance of the evidence.”
More generally, the trial court instructed the jury, pursuant to CALJIC
No. 2.90, that “a defendant in a criminal action is presumed to be innocent until
the contrary is proved, 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.” It also instructed the jury, pursuant to CALJIC No. 2.01, that “a finding of
guilt as to any crime may not be based on circumstantial evidence unless the
proved circumstances are not only (1) consistent with the theory that the defendant
is guilty of the crime, but (2) cannot be reconciled with any other rational
conclusion. [¶] Further, each fact which is essential to complete a set of
circumstances necessary to establish a defendant‟s guilt must be proved beyond a
reasonable doubt. In other words, before an inference essential to establish guilt
may be found to have been proved beyond a reasonable doubt, each fact or
circumstance upon which such inference necessarily rests must be proved beyond
a reasonable doubt.”
As we noted in People v. Medina (1995) 11 Cal.4th 694 (Medina), at the
guilt phase “facts tending to prove the defendant‟s other crimes for purposes of
establishing his criminal knowledge or intent are deemed mere „evidentiary facts‟
that need not be proved beyond a reasonable doubt as long as the jury is
convinced, beyond a reasonable doubt, of the truth of the „ultimate fact‟ of the
defendant‟s knowledge or intent. [Citation.]” (Id. at p. 763.) The defendant in
Medina had asserted “that when „other crimes‟ evidence is offered to prove such
matters as intent or identity, these facts should be proved by the „beyond
reasonable doubt‟ standard.” (Id. at p. 764.) As in Medina, we find no reason to
60
reconsider our decisions to the contrary. (See also People v. Davis (2009) 46
Cal.4th 539, 615-616 [rejecting a request to reconsider our rulings that CALJIC
Nos. 2.50, 2.50.1, and 2.50.2 do not lower the burden of proof to less than beyond
a reasonable doubt].) We also reject defendant‟s contention that “the jury
reasonably could have believed that its findings as to certain key elemental or
ultimate facts and issues might be based simply on a preponderance of the
evidence.” The trial court‟s instructions concerning the People‟s burden to prove
defendant guilty beyond a reasonable doubt, and concerning proof by
circumstantial evidence, made clear that ultimate facts must be proved beyond a
reasonable doubt. (See People v. Carpenter (1997) 15 Cal.4th 312, 383
(Carpenter) [the standard instructions on reasonable doubt and circumstantial
evidence “made clear the reasonable doubt standard applies to intent as well as
identity”].)21
7. Sufficiency of the evidence
Defendant contends the evidence was insufficient to support convictions for
robbery, felony murder based upon robbery, burglary, felony murder based upon
burglary, and deliberate and premeditated murder, or to support special
circumstance findings of murder committed in the course of a robbery or burglary.
Therefore, he asserts, these convictions and special circumstance findings violate
his right to due process of law under the Fourteenth Amendment to the United
21
Defendant asserts that “neither Medina nor Carpenter involved the use of
prior crimes evidence to prove both basic or evidentiary facts and elemental or
ultimate facts as in this case.” In Medina, evidence of uncharged murders was
admitted to link defendant to the charged murder. (Medina, supra, 11 Cal.4th at
p. 723.) In Carpenter, evidence of uncharged murders was admitted to establish
the defendant‟s state of mind. (Carpenter, supra, 15 Cal.4th at p. 383.) Thus, in
each of the two cited cases, the evidence was admitted to prove ultimate facts.
61
States Constitution and article I, section 14 of the California Constitution, and his
right to a reliable determination of his guilt guaranteed by the Eighth Amendment
to the United States Constitution.
“ „When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence — that is, evidence
that is reasonable, credible, and of solid value — from which a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.‟ [Citation.]
„[T]he relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.‟ [Citations.] „[I]t is
the jury, not the appellate court which must be convinced of the defendant‟s guilt
beyond a reasonable doubt.‟ [Citation.] „In a case, such as the present one, based
upon circumstantial evidence, we must decide whether the circumstances
reasonably justify the findings of the trier of fact, but our opinion that the
circumstances also might reasonably be reconciled with a contrary finding would
not warrant reversal of the judgment. [Citation.]‟ [Citation.]” (Lewis, supra, 46
Cal.4th at pp. 1289-1290, fn. omitted.)
We first focus our analysis upon defendant‟s conviction for burglary. Any
person who enters a building or room with the intent to commit larceny or any
felony is guilty of burglary. (§ 459.) In defendant‟s view, the evidence reflects
that the larceny was incidental to the killing, and was not intended when defendant
entered the church. A rational trier of fact could conclude, however, that
defendant entered the church with the intent to commit larceny, based upon (1) the
circumstances of the crime — within a short time after entering the building,
defendant stole the victim‟s belongings — and (2) defendant‟s pattern of entering
offices and violently robbing solitary women. This same evidence supports a
62
finding that the killing was committed in the course of a burglary, and thus
supports a finding of felony murder based upon the commission of a burglary, and
the special circumstance of murder committed in the course of a burglary.
(§§ 189, 190.2, subd. (a)(17)(G).)22 The fact that the evidence also may support
other scenarios does not render insufficient the evidence supporting the verdict.
(People v. Bolden (2002) 29 Cal.4th 515, 553.)
We next consider defendant‟s conviction for robbery. “Robbery is the
felonious taking of personal property in the possession of another, from his person
or immediate presence, and against his will, accomplished by means of force or
fear.” (§ 211.) Defendant contends the evidence reflects only that the perpetrator
took the victim‟s property after the victim was killed. For the reasons set forth
above, however, a rational trier of fact could conclude that defendant decided,
before he killed the victim, to steal her belongings, and that, in accordance with
his plan or pattern in committing his prior crimes, demanded the victim‟s
belongings before harming her. Thus, substantial evidence supports the
conclusion that the victim‟s property was taken against her will, and that the
killing was committed in the course of the robbery. Therefore, substantial
evidence supports a finding of felony murder based upon the commission of a
robbery, and the special circumstance of murder committed in the course of a
robbery. (§§ 189, 190.2, subd. (a)(17)(A).)
22
Defendant notes that at the time of his trial, the felony-murder charge could
not be premised upon a burglary committed for the sole purpose of assaulting or
killing the victim. (People v. Wilson (1969) 1 Cal.3d 431, 440; see People v.
Farley (2009) 46 Cal.4th 1053, 1121 [this court‟s overruling of Wilson does not
apply retroactively].) The trial court‟s instruction concerning burglary identified
larceny as the sole basis of the burglary charge. Thus, this case presents no issue
concerning merger of the burglary and the homicide.
63
Finally, defendant contends there was no substantial evidence to support
the conclusion that the murder was deliberate and premeditated. As explained
above, there was substantial evidence that the killing was committed in the course
of a burglary and a robbery. Therefore, substantial evidence supports a finding of
first degree felony-murder. Because the jury unanimously found the felony-
murder special circumstances to be true, it also must have agreed unanimously that
defendant committed felony murder premised upon his commission of the offenses
of burglary and robbery. (People v. Hawthorne (2009) 46 Cal.4th 67, 89-90
(Hawthorne).) Therefore, we need not address the question whether substantial
evidence supports the alternative theory of deliberate and premeditated murder.
In sum, substantial evidence supports all of the jury‟s findings.
8. Asserted prosecutorial misconduct
Defendant contends the prosecutor committed acts of misconduct that
denied defendant his rights to a fair trial, an impartial jury, due process, and
reliable determinations of guilt and penalty, in violation of the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution.
“Under the federal Constitution, a prosecutor‟s behavior deprives a
defendant of his rights „when it comprises a pattern of conduct “so egregious that
it infects the trial with such unfairness as to make the conviction a denial of due
process.” ‟ [Citations.] Conduct that falls short of that standard „may still
constitute misconduct under state law if it involves the use of deceptive or
reprehensible methods to persuade the trial court or the jury.‟ [Citations.]”
(People v. Gamache (2010) 48 Cal.4th 347, 370-371 (Gamache).) “In addition,
„ “a defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion — and on the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the
64
impropriety. [Citation.]” [Citation.] Objection may be excused if it would have
been futile or an admonition would not have cured the harm. [Citation.]” (People
v. Dykes (2009) 46 Cal.4th 731, 760 (Dykes).)
a. Referring to inadmissible evidence and eliciting inadmissible
testimony
Defendant asserts the prosecutor committed misconduct by discussing
Richard Nester‟s testimony during the People‟s opening statement, and by
introducing Nester‟s testimony concerning defendant‟s flight from the assault
upon Cindy M. Defendant did not object to that aspect of the People‟s opening
statement. In addition, he objected to the introduction of Nester‟s testimony only
on the basis that the testimony was not relevant until Cindy M. had testified.
Therefore, defendant has forfeited his present contentions. Moreover, in light of
our conclusion that the trial court did not abuse its discretion in admitting this
evidence, the prosecutor‟s reference to the evidence during his opening statement
was not misconduct. Finally, because the trial court ruled that Nester‟s testimony
was admissible, the prosecutor‟s introduction of this evidence did not constitute
misconduct. (Hawthorne, supra, 46 Cal.4th 67, 94.)
Defendant asserts that the prosecutor‟s cross-examination of defendant with
respect to his prior crimes violated the trial court‟s ruling concerning the scope of
cross-examination. Defendant did not object to the cross-examination on the
ground of prosecutorial misconduct. Therefore, he has forfeited this claim. The
claim also fails on the merits. As discussed above (PT, II.B.2.), the trial court did
not rule that defendant could not be cross-examined concerning his prior crimes.
In addition, the trial court overruled defendant‟s objections. Thus, the
prosecutor‟s cross-examination of defendant was not misconduct.
65
Finally, defendant sets forth seven questions to which objections were
sustained.23 He does not explain why the trial court‟s rulings sustaining the
23
First, after defendant twice noted that there was no trial in the Johnnie C.
case, and that instead he had pleaded guilty, the prosecutor asked, “Are you trying
to leave the impression that if you commit a crime, you just admit it?” The trial
court sustained defendant‟s unspecified objection.
Second, in the course of questioning defendant about his escape from an
Idaho prison, the prosecutor asked, “You don‟t like prison[,] would that be fair to
state?” The trial court sustained defendant‟s relevancy objection.
Third, after questioning defendant about his activities after he was released
from prison in 1982, the prosecutor asked, “[H]ad you gotten any insight as to why
you committed those crimes that landed you in prison back in 1972?” Defendant
answered, “No, I did not.” Defense counsel objected and requested that the court
strike the question and answer as “improper cross-examination.” The trial court
sustained the objection and directed that the answer be stricken.
Fourth, the prosecutor asked whether defendant did “something at your
1982 trial to try to disguise your appearance.” Defendant answered, “I did not.”
The trial court sustained an objection of “no foundation.” At a sidebar conference,
the prosecutor explained that the evidence would show that defendant grew a
beard before his trial in the Cindy M. matter. The trial court then concluded that
the questions concerning defendant‟s appearance were appropriate, “since
[identity] is an issue.” Thus, the prosecutor‟s questions were not misconduct.
(See Hawthorne, supra, 46 Cal.4th at p. 94.)
Fifth, the prosecutor asked, “So when you were released on December 12th,
1990, you had spent about 18 years in prison for the 1972 crime and the 1982
crime, is that correct?” Defendant‟s objection that the question was irrelevant was
sustained.
Sixth, the prosecutor then asked, “during that period of time, isn‟t it true
that you spent this time in prison all because victims had come into court and
identified you as their attacker?” Defendant answered, “With the exception of the
escape.” Defense counsel‟s objection that the question called for a conclusion was
sustained.
Seventh, the prosecutor asked whether, when defendant was released from
prison on December 12, 1982, he was “aware of the consequences of the crime of
murder.” Defendant answered, “Yes.” The prosecutor then asked, “You knew if
you committed the crime of murder, you could get the death penalty.” Defendant
answered, “No, not specifically, death penalty.” Defendant objected that the
question oversimplified the law and brought the issue of penalty into the guilt
phase. The prosecutor responded that the elements of first degree murder require
(footnote continued on next page)
66
objections were inadequate to abate any prejudice. (See Dykes, supra, 46 Cal.4th
at p. 764 [“because the trial court sustained objections to the argumentative
element of the prosecutor‟s questioning, we assume any prejudice was abated”].)
He also fails to address why the prosecutor‟s questions constituted misconduct,
other than to note that the trial court sustained the objections. Therefore, we
decline to address these contentions. (See People v. Catlin (2001) 26 Cal.4th 81,
133 (Catlin) [because defendant “fails to offer any authority or argument in
support of [his] claim, . . . it is not considered here”]; People v. Barnett (1998) 17
Cal.4th 1044, 1182 (Barnett) [because defendant “fails . . . to support the claim
with adequate argument[, we] . . . reject it as not properly raised”].)
b. Asserted references at the guilt phase to the issue of penalty
Defendant asserts that at the guilt phase the prosecutor improperly referred
to the issue of penalty by (1) describing defendant‟s prior terms of incarceration,
and (2) examining defendant‟s parole officer concerning defendant‟s Idaho prison
records. As explained below, defendant not only has forfeited these contentions,
but they fail on the merits.
In his opening statement, the prosecutor, in describing the crimes
committed by defendant against Johnnie C., noted that defendant “was sentenced
to life in prison in Idaho” for those crimes, but “in Idaho at that time life in prison
didn‟t mean life in prison.” He added that defendant “did remain in prison for
almost 10 years.” Similarly, after describing the crimes against Cindy M., the
prosecutor noted that defendant was sentenced to 13 years in prison, but “in
(footnote continued from previous page)
that the defendant have in mind the consequences of killing. The court sustained
the objection “on the grounds of 352.”
67
California at that time 13 years didn‟t mean 13 years. A person would serve a
portion of that time and then they had to be released on parole if they behaved
themselves in prison.”
Defendant did not object to these statements, and therefore has forfeited his
claims. He contends, however, that he should not be precluded from presenting
them, because “the prosecutor‟s comments disclose an improper pattern of
prosecutorial behavior,” citing People v. Hill (1998) 17 Cal.4th 800. In Hill,
defense counsel “was subjected to a constant barrage of [the prosecutor‟s]
unethical conduct, including misstating the evidence, sarcastic and critical
comments demeaning defense counsel, and propounding outright falsehoods.” (Id.
at p. 821.) In addition, by objecting, defense counsel “risk[ed] repeatedly
provoking the trial court‟s wrath, which took the form of comments before the jury
suggesting [defense counsel] was an obstructionist, delaying the trial with
„meritless‟ objections.” (Ibid.) No such circumstances are reflected in the record
in the present case. Defendant also asserts that “[a] contemporaneous objection
would only have highlighted the improper comments and have further inserted
into the guilt phase improper considerations of penalty.” An objection always will
highlight the matter to which the objection is directed. Allowing this consequence
to overcome the requirement of an objection would negate the rule that a party
must object and request an admonition in order to preserve a claim of error and
enable the trial court to correct the asserted error.
Defendant‟s claim also fails on the merits. The prosecutor‟s motion in
limine to admit evidence of defendant‟s prior crimes stated that the People would
prove those crimes with testimony from the victims and “by a certified copy of the
. . . conviction in each case.” The certified copies of these documents reflected
that defendant was sentenced to life in prison in Idaho in 1972, and to 13 years in
prison in California in 1982. Because the timeline of defendant‟s incarceration
68
and the dates of his release were relevant to the jury‟s evaluation of the probative
value of the evidence of defendant‟s other crimes, an explanation of the actual
sentences he served was appropriate. In addition, the prosecutor referred to the
sentencing schemes “at that time,” and did not suggest that the sentence to be
imposed in the present case would not be carried out in full.
Defendant asserts that the prosecutor also introduced the issue of penalty
during his examination of defendant‟s parole officer, Steven Slaten, by repeatedly
attempting to establish that records from the State of Idaho indicated defendant
had been sentenced to life in prison. Defendant‟s objections to the prosecutor‟s
questions were based upon the hearsay character of the Idaho records; defendant
did not object that the contents were irrelevant or that the prosecutor‟s questions
otherwise were improper. Therefore, defendant has forfeited his present
contention. The claim also fails on the merits. The trial court already had
admitted the certified copy of the Idaho records reflecting defendant‟s conviction
and sentence, and the prosecutor merely attempted to have Slaten explain the
contents of that document. As noted above, the terms of defendant‟s prior
incarcerations were relevant to an evaluation of the probative value of defendant‟s
prior crimes, and this document was offered to establish relevant facts. Thus, the
substance of the prosecutor‟s questions was not inappropriate.
Because the prosecutor‟s statements and questions were relevant to
pertinent aspects of defendant‟s prior crimes, we reject defendant‟s assertion that
the prosecutor‟s conduct was “part of an overall strategy . . . to encourage the jury
improperly to consider penalty and the propriety of death in this case.” We further
note, however, that the jury was instructed, pursuant to CALJIC No. 17.42 and
CALJIC No. 8.83.2, not to discuss or consider the subject of penalty or
punishment in their deliberations concerning guilt, and that this subject must not in
69
any way affect the jury‟s verdict or findings. We assume the jury followed these
instructions. (See Yeoman, supra, 31 Cal.4th 93, 139.)
c. Accusing defendant of guilt of uncharged crimes
Defendant contends the prosecutor argued that defendant also was guilty of
uncharged sex crimes against the victim. He bases this contention upon the
prosecutor‟s comparison, in his opening statement, of defendant‟s prior crimes to
the charged offenses. After describing the prior crimes, the prosecutor
characterized the victim as “a strong woman,” and then described how the charged
crimes unfolded in a manner similar to the prior crimes: “At around noon on
August 26th, that Monday, 1991, while Gail was alone there in the church
[, defendant] walked in. Just like in 1982 when he walked into Cindy [M.‟s]
office, [defendant] had a knife. Just like he had done before, [defendant]
confronted Gail, made her get her purse and brought her back there into the
minister‟s office in another room of the church. Just like he had before with Cindy
[M.], the contents of Gail‟s purse were dumped on the floor at her feet and her
purse was put on the floor, and he robbed Gail Johnson. [¶] Now, I mentioned
that Gail was a strong-willed woman, a strong-willed woman, and at some point
when [defendant] had plans for her, at some point she said no. At some point, she,
too resisted just like Johnnie [C.] resisted, just like Cindy [M.] resisted. At some
point Gail resisted but, unfortunately, there was no Dick Nester there to walk in
right in the middle of it and save her. . . . [¶] . . . She was fighting for her life. . . .
Only she didn‟t stop resisting like Johnnie [C.] stopped and was okay. Cindy [M.]
didn‟t quite stop but she was saved.”
Because defendant did not object to these statements, he forfeited his claim.
He asserts, however, that an objection and admonition would not have cured the
harm, because they only would have highlighted the insinuation that defendant
70
committed uncharged sex crimes. As noted above, all objections draw attention to
the assertedly objectionable material, but this consequence does not excuse
defendant from the requirement that he object. Defendant does not explain why an
admonition would not have cured any harm, or why, as he asserts, “the
prosecutor‟s statements also constituted federal constitutional error, not subject to
the contemporaneous objection or curative admonition rule.” (See Catlin, supra,
26 Cal.4th at p. 133; Barnett, supra, 17 Cal.4th at p. 1182.) Alternatively,
defendant contends he should not be precluded from raising the issue, because
“the prosecutor‟s comments disclose a continuing, improper pattern of
prosecutorial behavior that infected the trial with fundamental unfairness.” We do
not perceive such a pattern.
This claim also fails on the merits. The evidence of defendant‟s prior
crimes was admitted because of similarities between those crimes and the charged
crimes, and the prosecutor‟s statements properly focused the jury‟s attention on
those similarities. Contrary to defendant‟s suggestion, the prosecutor did not refer
to matters outside the record, and the prosecutor‟s statement that the defendant
“had plans for her” was not baseless, deceptive, or otherwise unwarranted.
d. Insinuating guilt based upon defendant’s changed appearance
During questioning by the prosecutor, Nester confirmed that he had
identified defendant in court at the preliminary hearing in the Cindy M. matter.
The prosecutor then asked about changes to defendant‟s appearance between his
attack on Cindy M. on March 29, 1982, and the preliminary hearing held on
April 12, 1982. Nester testified that defendant had grown a beard and mustache,
and his hair was “slicked back” rather than “big.” The prosecutor asked, “Did that
kind of throw you off, you thought, how could this kind of thing be allowed to
happen, a person can try to disguise their appearance and be allowed to do that?”
71
He responded, “Yes, it did.” Defendant objected, “leading and suggestive.” The
trial court sustained the objection.
Defendant complains that the prosecutor immediately asked another
question concerning defendant‟s appearance during the proceedings in Cindy M.‟s
case. Defendant‟s earlier objection was not to the subject matter of the questions;
he objected only to the form of a particular question. Therefore, the prosecutor did
not act inappropriately merely by continuing to pursue his line of questioning. For
the same reason, defendant has forfeited his claim that the substance of the
questions was improper.
The claim also fails on the merits. It is not improper for a prosecutor to
suggest that a defendant deliberately altered his or her appearance to raise doubt
concerning the defendant‟s identity as the perpetrator, unless the prosecutor knows
that the change in appearance was motivated solely by a reason unrelated to the
reason suggested by the prosecutor. (People v. Cunningham, supra, 25 Cal.4th at
p. 1001.) As in Cunningham, the prosecutor‟s suggestion that defendant had
changed his appearance in the Cindy M. matter in order to confuse witnesses was
relevant to the issues of defendant‟s identity and consciousness of guilt.
Defendant continued to deny that he attacked Cindy M., and Nester‟s testimony
concerning defendant‟s changes in appearance tended to refute defendant‟s denial.
Also, defendant‟s changes in appearance tended to explain Nester‟s testimony that
he recognized defendant in court “[o]nly by virtue of the fact that he‟s sitting at
the defendant‟s table.” Defendant‟s speculation on appeal, that “[s]urely, the
prosecutor was aware that jail grooming requirements alone could have accounted
for [defendant‟s] changed appearance,” does not establish that the changes in
appearance were motivated solely by a reason other than raising doubt concerning
his identity, or that the prosecutor was aware of a separate and exclusive
motivation for the change in appearance.
72
e. Insinuating that defendant was concealing evidence
During the examination of Stockwell, the prosecutor noted that the
criminalist had “preserved portions of each one of these stains so the defense
would have a portion of the stain to conduct their own independent re-analysis
with their own criminalist; is that correct?” Stockwell responded, “It has that
potential. By keeping a remaining portion of the stain, they have that ability, yes.”
The prosecutor then asked, “And did you release portions of many of these stains
to the defense criminalist for re-analysis?” Stockwell confirmed he did. The
prosecutor then stated: “I‟d like to go through here and list which stains you
released portions of to the defense for re-analysis, the defense criminalist — the
request from this criminalist requested starting with item A-10a.”
Defendant objected “to this line of questioning on the basis of relevance.”
Out of the presence of the jury, defendant also objected that the prosecutor was
“insinuating that this was released to a criminalist hired by the defense.” The trial
court asked whether the evidence in fact was released to a criminalist hired by the
defense, and defense counsel confirmed it was, “but we‟re not using that
criminalist. The reports remain confidential. He‟s drawing an adverse inference.”
The court noted that “it‟s already in evidence that the samples were available for
re-analysis,” and defense counsel added, “It‟s also in evidence that our criminalist
picked up our stuff. I believe he testified to that.” The trial court concluded that,
“under the authority of [People v. Kaurish (1990) 52 Cal.3d 648], I believe the
evidence is admissible without mentioning the name of the [defense expert]. And,
also, I think it‟s already in evidence. So I think what we are doing here is just
turning out details of what has been said. There has been a waiver of any
objections in any event. So the objection will be overruled and the evidence will
be admissible.” The prosecutor then reviewed with the witness, item by item,
which stains were released to the defense. Because the trial court overruled
73
defendant‟s objection, the prosecutor‟s questioning did not constitute misconduct.
(Hawthorne, supra, 46 Cal.4th at p. 94.)
Defendant also challenges the propriety of the prosecutor‟s cross-
examination of Dr. Mueller, during which the prosecutor asked a series of
questions “to try to clarify just what you did do in this case and what you did not
do in this case.” He asked whether Mueller (1) conducted a test that proved
defendant did not kill the victim, (2) conducted a test that proved the blood was
not defendant‟s blood, (3) “reanalyze[d] any of the blood . . . and show[ed] that
Cellmark was wrong when they said it matched” defendant, or (4) reanalyzed any
of the blood in the case. Mueller answered that he did not perform an analysis of
any biological samples. The prosecutor then questioned him concerning the
possibility of having a blood sample reanalyzed if the first test was not performed
properly. Mueller stated there were six or seven private laboratories that perform
some type of DNA testing. The prosecutor asked, “You were hired by the defense
. . . to give them some advice on DNA analysis, is that correct?” Mueller
responded, “On the population genetic issues.” The prosecutor asked, “Did you
tell them here‟s a lab, send that blood over there and reanalyze it?” Defense
counsel interposed that he had an objection that he preferred to express outside of
the presence of the jury. The court immediately responded, “The objection is
sustained,” and no sidebar conference occurred.
Defendant‟s failure to request that the jury be admonished forfeits his
claim. The claim also fails on the merits. As noted above, the trial court
permitted the admission of evidence establishing that portions of many of the
bloodstains were preserved and released to the defense. Inquiries concerning
defense testing were relevant in light of Dr. Mueller‟s testimony questioning
Cellmark‟s proficiency. The prosecutor‟s questions suggested only what was
implied by the evidence — that the defense did not possess any contrary
74
serological evidence. Nor did the prosecutor‟s focus upon the absence of contrary
evidence insinuate that defendant bore the burden of offering evidence of his
innocence. In addition, the prosecutor‟s questions were not argumentative; they
clearly sought to elicit relevant evidence. (People v. Chatman (2006) 38 Cal.4th
344, 384.)
In conclusion, we find no prosecutorial misconduct, much less a pattern of
prosecutorial misconduct that would excuse defendant‟s failure to object to the
prosecutor‟s questions and statements. (See Hill, supra, 17 Cal.4th at p. 821.)
9. Cumulative error
Defendant contends the various errors claimed to have occurred at the guilt
phase, considered together, “render[ed] the proceedings fundamentally unfair and
a denial of due process,” in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, and article I, sections 7 and 15 of
the California Constitution. We have concluded that any presumed error in
ordering defendant shackled was harmless, because there is no evidence
suggesting any of the jurors saw the shackles. We also have concluded that any
presumed error in the jury instruction that allowed the jury to consider defendant‟s
prior crimes as evidence of his identity as the perpetrator was harmless, because
the other evidence of identity is overwhelming. In combination, these presumed
errors were harmless and did not deny defendant a fair trial.
C. Penalty Phase Issues
1. Preinstruction of jurors
Defendant contends the trial court‟s instructions to prospective jurors
(1) failed to explain the meaning of a sentence of imprisonment for “life without
the possibility of parole,” (2) encouraged jurors to speculate that such a sentence
did not mean defendant never would be paroled, (3) led prospective jurors to
75
believe the responsibility for defendant‟s sentence rested with the appellate courts,
and (4) implied a sentence of death in the present case would not be unexpected.
Defendant asserts the preinstructions violated his rights to a fair trial, due process,
equal protection, and a reliable penalty determination, as guaranteed by the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Before distributing copies of the juror questionnaire, the court explained to
prospective jurors that this case was different from most court cases, because, if
the jury found defendant guilty of first degree murder and found a special
circumstance to be true, the jurors would be called upon to select one of two
sentences — life imprisonment without the possibility of parole, or death. The
court stated that there was some confusion and misinformation among the
citizenry regarding our system of capital punishment, and that the court would
“take a few minutes and talk to you about the state of the law today,” to assist
prospective jurors in answering the questionnaire‟s inquiries concerning the views
of prospective jurors with respect to capital punishment. The court explained that
the death penalty as prescribed in California had been determined by the United
States Supreme Court to be unconstitutional. (See Furman v. Georgia (1972) 408
U.S. 153.) “At that time, there were many people on death row in California, and
because the law under which they had been sentenced was invalidated, their
sentences were commuted to life in prison. [¶] At that time there was no
punishment in California known as life without parole so all those people received
a sentence of life with parole possibility. And it‟s because of those circumstances
that men like Charles Manson and Sirhan Sirhan keep coming up for parole
review. [¶] I know that it makes many of our citizens very nervous to think that
these men might be paroled, but what you need to know is that their cases are
unique and they are considered for parole only because of that change in the law
that occurred.”
76
The court then explained that California voters adopted a new death penalty
law in 1978, which “added a new punishment to California law known as life in
prison without the possibility of parole. Under that punishment, a Defendant
would never be released from prison. [¶] Now, this new law was tested, which
took some years, and was found by both the California Supreme Court and the
United States Supreme Court to be constitutional. Many people have now been
convicted under this new law, and as you may be aware, many years passed before
anyone was actually executed in California. [¶] Much of that time was consumed
in testing the new law and the appellate review of those Defendants‟ cases.
However, there have been two executions in California in the recent past and I
anticipate that there will be many more executions in the near future. What you
need to know is the following: [¶] In 1996, in California, the law means exactly
what it says. If the Defendant in this case is found guilty of first degree murder
and if either of the special circumstances alleged are found to be true, then the jury
will have the obligation of determining which punishment to choose. [¶] There
will, under those circumstances, be a second phase of the trial, which I‟ll explain
to you in a few minutes. [¶] At the conclusion of that phase, the jury will have
only two options: Death or life imprisonment without parole, and again, you are
instructed that both those punishments mean exactly what they say. If you vote
for life without parole, the Defendant will never be released on parole and will
never be considered for release. If you vote for death, the Defendant will be
executed. I‟m giving you this extremely sobering information because it is
important that you understand the significance of the questions that we are asking
on the questionnaire and the decisions you could be required to make.” The trial
court then explained the nature and role of aggravating and mitigating
circumstances.
77
We reject defendant‟s contention that the trial court‟s statements
concerning potential sentences were flawed.24 The court‟s statements made clear
that the circumstances that led to a sentence of life imprisonment with the
possibility of parole for some death row inmates were unique and transitory, and
that the death penalty law at the time of trial provided only two options: life
imprisonment without the possibility of parole, in which case “the Defendant will
never be released on parole and will never be considered for release,” and death, in
which case “the Defendant will be executed.” We find no basis whatsoever in the
record to support defendant‟s view that the court‟s explanation “creat[ed] the
erroneous illusion that [defendant], as other notorious criminals, might someday
be eligible for parole,” or his view that the references to notorious criminals would
have inflamed the jury against defendant. Nor did the court‟s statements suggest,
as defendant contends, that jurors would choose between “death and a limited
period of incarceration.” Therefore, we reject defendant‟s view that the court‟s
explanations might have led a juror to believe that “the non-death option offered
was neither real nor sufficiently severe,” or that defendant would become eligible
for parole. Finally, defendant fails to explain how the preinstruction “undermined
the prosecution‟s burden of proof [and] permitted the jury improperly to speculate
on penalty during both the guilt and penalty phases.”
24
Defendant reviewed the remarks that the trial court proposed to give to the
prospective jurors, and informed the court that he had no objection to these
remarks. Nonetheless, we review his contentions, because the claimed errors
might affect his substantial rights. (§ 1259 [“The appellate court may . . . review
any instruction given, . . . even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby”]; People v.
Dunkle (2005) 36 Cal.4th 861, 929.)
78
We also reject defendant‟s contention that the instructions led prospective
jurors to believe that the responsibility for defendant‟s sentence rested with the
appellate courts. (See Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [“it is
constitutionally impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility for determining the
appropriateness of the defendant‟s death rests elsewhere”].) The trial court‟s
comments concerning the role of the appellate courts in testing the validity of the
death penalty, and the delay in executions caused by appellate review, did not
suggest that responsibility for the sentence rested with the appellate courts.
Moreover, the court stated unequivocally that “[i]f you vote for life without parole,
the Defendant will never be released on parole and will never be considered for
release. If you vote for death, the Defendant will be executed.” (Italics added.)
Indeed, the court emphasized the jurors‟ responsibility, explaining that “I‟m giving
you this extremely sobering information because it is important that you
understand the significance of the questions that we are asking on the
questionnaire and the decisions you could be required to make.”
Finally, we reject defendant‟s claim that the trial court‟s statement — “I
anticipate that there will be many more executions in the near future” —
“impl[ied] that a sentence of death in [defendant‟s] case would neither be
unanticipated nor unexpected. In so stressing its expectations, the court in essence
both vouched for the propriety of imposing the death penalty generally and at least
implicitly urged the jury to vote for death in this case.” Apparently in order to
counter any impression that the 1978 death penalty legislation did not and would
not lead to executions, the court explained why there had been only two
executions in the eight years between the enactment of the law and the trial in the
present case, and opined that there would be “many more executions in the near
future.” These comments clearly did not relate to the present case, and did not
79
reflect any expectation concerning what should happen in defendant‟s case.
Rather, the comments underscored the fact that a sentence of death would lead to
execution.25
2. Instruction concerning victim-impact evidence
Defendant contends the trial court‟s refusal to give his proposed instruction
concerning victim-impact evidence violated his right to a decision by a rational
and properly instructed jury, his due process right to a fair trial, and his right to a
fair and reliable penalty determination, as guaranteed by the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, and article 1, sections
7, 15, 16, and 17 of the California Constitution.
Defendant requested the following instruction: “Evidence has been
introduced that may arouse in you a natural sympathy for the victim or the
victim‟s family. [¶] You must not allow such evidence to divert your attention
from your proper role in deciding the appropriate punishment in this case. [¶]
You may not impose the penalty of death as a result of an irrational, purely
emotional response to this evidence.”
We rejected the following, similar instruction in People v. Ochoa (2001) 26
Cal.4th 398, 455: “ „Evidence has been introduced for the purpose of showing the
25
Defendant complains that in preinstructing most of the prospective jurors
that, in determining the appropriate penalty, they would consider all of the
evidence received during any part of the trial, the trial court did not add the phrase
“except as otherwise instructed.” Defendant does not include any argument
concerning this omission, and therefore has forfeited any related claim. (See
Catlin, supra, 26 Cal.4th at p. 133; Barnett, supra, 17 Cal.4th at p. 1182.) In any
event, the trial court subsequently instructed the jurors at the penalty phase,
pursuant to CALJIC No. 8.84.1, that “[y]ou must accept and follow the law that I
shall state to you. Disregard all other instructions given to you in other phases of
this trial.”
80
specific harm caused by the Defendant‟s crimes. Such evidence was not received
and may not be considered by you to divert your attention from your proper role of
deciding whether the Defendant should live or die. You must face this obligation
soberly and rationally, and you may not impose the ultimate sanction as a result of
an irrational, subjective response to emotional evidence and argument. On the
other hand, evidence and argument on emotional though relevant subjects may
provide legitimate reasons for the Jury to show mercy to the Defendant.‟ ” We
concluded in Ochoa that “[t]he proposed instruction would not have provided the
jury with any information it had not otherwise learned from CALJIC No. 8.84.1,
and the trial court properly refused to read [the proposed] instruction.” The trial
court in the present case also instructed the jury, pursuant to CALJIC No. 8.84.1,
that “[y]ou must neither be influenced by bias nor prejudice against the defendant,
nor swayed by public opinion or public feelings. Both the People and the
Defendant have a right to expect that you will consider all of the evidence, follow
the law, exercise your discretion conscientiously, and reach a just verdict.” As in
Ochoa, defendant‟s proposed instruction would not have provided the jury with
any information not otherwise furnished by CALJIC No. 8.84.1. Contrary to the
views expressed by defendant, we do not believe the jurors would have interpreted
the words “bias” and “prejudice” in CALJIC No. 8.84.1 to refer exclusively to
racial or religious discrimination, or that jurors would have interpreted the phrase
“public opinion or public feelings” to exclude the sentiments expressed by the
victim‟s family.
3. Cumulative error
Defendant asserts that the errors committed at the guilt phase and the
penalty phase, considered together, “so infected [defendant‟s] trial with unfairness
as to make the resulting conviction fundamentally and inherently unfair and a
81
denial of due process of law, and the judgment of death constitutionally
unreliable,” in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution. We have concluded that any presumed error in
ordering defendant shackled was harmless, because there is no evidence
suggesting any of the jurors saw the shackles. We also have concluded that any
presumed error in the instruction that allowed the jury to consider defendant‟s
prior crimes as evidence of his identity as the perpetrator of the present offenses
was harmless, because the other evidence of identity is overwhelming. In
combination, these presumed errors were harmless and did not deny defendant a
fair trial.
D. General Challenges to California’s Death Penalty Scheme
1. Instructions concerning mitigating and aggravating factors
Defendant contends the jury instructions regarding mitigating and
aggravating factors, and the jurors‟ application of these factors, rendered
defendant‟s death sentence arbitrary and capricious, in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution.
a. The circumstances of the crime
The trial court instructed the jury, pursuant to CALJIC No. 8.85, to
“consider and take into account and be guided by the [factors set forth in section
190.3] if applicable.”26 The first factor is “[t]he circumstances of the crime of
26
The court also instructed that “[p]otential aggravating factors are limited to
those listed in CALJIC No. 8.85 factors A, B, and C only. You may not consider
any other evidence as an aggravating factor. You may not consider the absence of
mitigating factors as an aggravating factor. You may not consider the same facts
more than once in determining the presence of aggravating factors.” (Italics
added.) Defendant complains that “the court did not define what it meant by the
reference to CALJIC No. 8.85.” No definition or explanation of this reference was
required. This instruction was given immediately after CALJIC No. 8.85‟s
(footnote continued on next page)
82
which the defendant was convicted in the present proceeding and the existence of
any special circumstances found to be true.” (§ 190.3, factor (a).) Defendant
acknowledges that the United States Supreme Court rejected a challenge to
factor (a) based upon the provision‟s asserted vagueness (Tuilaepa II, supra, 512
U.S. 967, 975-980), but he contends that, as applied over time, factor (a) has
become arbitrary and capricious.27 He relies upon the variety of circumstances
that have been invoked by prosecutors in other cases to support imposition of the
death penalty, such as that the victim was a child, an adolescent, a young adult, in
the prime of life, or elderly; the victim was killed by a single wound, or by
multiple wounds; the victim struggled, or the victim did not struggle; or the victim
had a prior relationship with the defendant, or was a stranger to the defendant. It
was apparent in Tuilaepa II that factor (a) would allow wide-ranging and arguably
contradictory circumstances to be urged as aggravating factors. In his dissenting
opinion, Justice Blackmun complained that factor (a) “has been exploited to
convince jurors that just about anything is aggravating,” including that the
(footnote continued from previous page)
description of the factors that could be considered, and its reference to “factors A,
B, and C” could only have been to the factors just described. In addition, the court
provided the jurors with a copy of the instructions, and the CALJIC No. 8.85
instruction was labeled with its CALJIC number at the end of that instruction.
(See People v. Mills (2010) 48 Cal.4th 158, 200-201 (Mills) [the court presumes
jurors follow the court‟s instructions, including the written instructions].)
27
The People assert defendant forfeited this challenge by failing to advance it
in the trial court. As the People acknowledge, however, “this court has
consistently considered „as applied‟ challenges to California‟s death penalty law
. . . on their merits without discussing whether they were raised at trial.
[Citations.]” (People v. Hernandez (2003) 30 Cal.4th 835, 863.) As in
Hernandez, we need not decide whether an objection was necessary, because
defendant‟s contention lacks merit in any event.
83
defendant killed for a motive or for no motive; killed in cold blood or hot blood;
attempted to conceal the crime or made no attempt to conceal the crime.
(Tuilaepa II, supra, 512 U.S. at pp. 986-987 [dis. opn. of Blackmun, J.].)
Similarly, the majority in Tuilaepa II acknowledged in connection with section
190.3, factor (i) — the age of the defendant at the time of the crime — “that in the
typical case the prosecution argues in favor of the death penalty based on the
defendant‟s age, no matter how old or young he was at the time of the crime.”
(Tuilaepa II, at p. 977.) This reality did not cause the majority concern; rather, it
viewed competing advocacy concerning the significance of any particular factor as
helpful to the jury. “Competing arguments by adversary parties bring perspective
to a problem, and thus serve to promote a more reasoned decision, providing
guidance as to a factor jurors most likely would discuss in any event.” (Ibid.) As
we observed in People v. Brown (2004) 33 Cal.4th 382, the range of circumstances
considered in capital cases “reflects . . . that each case is judged on its facts, each
defendant on the particulars of his offense. Contrary to defendant‟s position, a
statutory scheme would violate constitutional limits if it did not allow such
individualized assessment of the crimes but instead mandated death in specified
circumstances. [Citation.]” (Id. at p. 401.) Thus, it is clear that the history of the
circumstances identified by prosecutors as aggravating under factor (a) does not
render the sentencing scheme arbitrary or capricious.
b. Prior criminal activity
The second factor in section 190.3 is “[t]he presence or absence of criminal
activity by the defendant which involved the use or attempted use of force or
violence or the express or implied threat to use force or violence.” (§ 190.3,
factor (b).) The trial court instructed the jury, pursuant to CALJIC No. 8.87, that
evidence had been introduced for the purpose of showing that defendant had
84
engaged in such activity, including the robbery and forcible rape of Johnnie C., the
kidnapping, robbery, forcible rape, and forcible oral copulation of Dinah J., the
robbery and assault with intent to commit rape of Cindy M., and the threats to use
force against Bunny Lynn Miles‟s daughter. It explained that “[b]efore a juror
may consider any of such criminal acts as an aggravating circumstance in this
case, a juror must first be satisfied beyond a reasonable doubt that the defendant
. . . did in fact commit such criminal acts. . . . [¶] It is not necessary for all jurors
to agree. If any juror is convinced beyond a reasonable doubt that such criminal
activity occurred, that juror may consider that activity as a fact in aggravation.”
Defendant claims error in the admission of “unreliable” evidence of his
unadjudicated crimes of oral copulation with respect to Dinah J. and of threats
with respect to Miles, and the failure to require that the jury unanimously find the
unadjudicated activity to be true before considering it under section 190.3,
factor (b). We repeatedly have rejected claims that evidence of unadjudicated
criminal activity should not be admitted, as well as claims that the jury must make
unanimous findings with respect to evidence admitted under factor (b).28 We also
have rejected the contention that the decisions in Blakely v. Washington (2004)
542 U.S. 296 (Blakely), Ring v. Arizona (2002) 536 U.S. 584 (Ring), and Apprendi
v. New Jersey (2000) 530 U.S. 466 (Apprendi) require otherwise. (People
v. D’Arcy (2010) 48 Cal.4th 257, 308 (D’Arcy) [the court need not instruct that the
28
Defendant does not address in what way the particular evidence of
unadjudicated criminal activity was “unreliable.” Rather, his theory seems to be
that allowing a single juror to rely upon such evidence, in the absence of a
unanimous finding that the unadjudicated criminal activity occurred, renders the
process unreliable. Thus, his characterization of the evidence as “unreliable”
presents no issue different from what we have considered in the cases cited above,
which reject the contention that the jury must be required to reach a unanimous
conclusion regarding the presence of an aggravating factor.
85
jury must unanimously find true an aggravating factor; Blakely, Ring, and
Apprendi do not alter this conclusion]; Mills, supra, 48 Cal.4th at p. 214
[California‟s death penalty law is not invalid for failing to require unanimous
findings of aggravating factors, nor for permitting consideration of unadjudicated
criminal activity; Blakely, Ring, and Apprendi do not preclude consideration of
unadjudicated criminal activity].) Finally, we have rejected the contention that
allowing consideration of unadjudicated criminal activity in capital cases, while
forbidding its consideration in noncapital cases, violates a defendant‟s right to
equal protection of the laws. (D’Arcy, supra, 48 Cal.4th at p. 301.) Defendant
provides no reason for us to reconsider these decisions.
c. Restrictive adjectives in the description of mitigating factors
The jury was instructed, pursuant to CALJIC No. 8.85, that it could
consider “[w]hether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance,” and “[w]hether
or not the defendant acted under extreme duress or under the substantial
domination of another person.” Defendant asserts that the adjectives “extreme”
and “substantial” “acted as a barrier to the consideration of mitigation.” We
repeatedly have rejected this contention. (Gamache, supra, 48 Cal.4th at p. 406
[use of the word “extreme” did not prevent the jury from considering relevant
mitigating evidence]; D’Arcy, supra, 48 Cal.4th at p. 308 [use of “extreme” and
“substantial” does not violate the Fifth, Sixth, Eighth, or Fourteenth
Amendments]; Mills, supra, 48 Cal.4th at pp. 210-211 [rejecting challenge to use
of the word “extreme”].)
d. The absence of a requirement of written findings
Defendant also claims error in the failure to require written findings
regarding the aggravating factors found and considered by the jury in selecting the
86
punishment of death. We repeatedly have rejected this contention. (Gamache,
supra, 48 Cal.4th at p. 406 [there is no state or federal requirement of written
findings]; Mills, supra, 48 Cal.4th at p. 214 [the death penalty law is not
unconstitutional for failing to require written findings].)
2. Instructions concerning the jury’s consideration of aggravating and
mitigating circumstances
Defendant contends the trial court‟s instruction, pursuant to CALJIC
No. 8.88, concerning the meaning and weighing of aggravating and mitigating
circumstances, deprived him of his rights to due process, equal protection, a fair
trial by jury, and a reliable penalty determination of penalty, as guaranteed by the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.29
First, he challenges the instruction that, “[t]o return a judgment of death,
each of you must be persuaded that the aggravating circumstances are so
substantial in comparison with the mitigating circumstances that it warrants death
instead of life without parole.” He asserts that the phrase “so substantial” is
impermissibly vague, citing Arnold v. State (Ga. 1976) 224 S.E.2d 386, which
invalidated an instruction that described, as an aggravating circumstance, that the
defendant “ „has a substantial history of serious assaultive criminal convictions.‟ ”
(Id. at p. 391.) According to the Georgia court, “Whether the defendant‟s prior
history of convictions meets this legislative criterion is highly subjective.” (Id. at
p. 392.) We previously have rejected this contention. (People v. Page (2008) 44
Cal.4th 1, 55-56; People v. Breaux (1991) 1 Cal.4th 281, 316.) As we explained
29
The People contend defendant forfeited these claims by failing to assert
them in the trial court. Because his claims of error would affect his substantial
rights, we address them. (§§ 1259, 1469.)
87
in Page, the difference between the two uses of the phrase arises from the different
contexts of its usage. “The jurors in Arnold were called upon to decide, in
isolation and without further guidance, whether a defendant‟s prior criminal record
was „substantial,‟ whereas the jurors [instructed pursuant to the CALJIC
instructions] were instructed extensively with respect to the manner of performing
their task and were called upon to compare the totality of the aggravating
circumstances with the totality of the mitigating circumstances. The instructions
adequately explained that the jurors „could return a death verdict only if
aggravating circumstances predominated and death is the appropriate verdict.‟
[Citation.]” (Page, supra, 44 Cal.4th at p. 56.)
Second, defendant complains that the instruction failed to inform the jurors
that the central determination entrusted to them is whether the death penalty is the
appropriate punishment, not merely an authorized punishment. As we have
explained, however, “[b]y advising that a death verdict should be returned only if
aggravation is „so substantial in comparison with‟ mitigation that death is
„warranted,‟ the instruction clearly admonishes the jury to determine whether the
balance of aggravation and mitigation makes death the appropriate penalty.
[Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 171; see also People v. Taylor
(2009) 47 Cal.4th 850, 899-900 (Taylor); People v. Griffin (2004) 33 Cal.4th 536,
593.)
Third, defendant complains that the instruction failed to inform the jurors
that if the mitigating circumstances outweighed the aggravating circumstances,
they were required to return a sentence of life imprisonment without the possibility
of parole. Again, we previously have rejected this contention. The principle that
jurors “must return a verdict of life without [the] possibility of parole if mitigation
outweighs aggravation . . . is clearly implicit in the standard instruction.” (Taylor,
supra, 47 Cal.4th at p. 900.)
88
3. Burden of proof and other safeguards
Contrary to defendant‟s contentions, this court consistently has held that the
trial court is not “required to instruct the penalty jury on any burden of proof; in
California, at the penalty phase, there is no burden of proof, only a normative
judgment for the jury. [Citations.]”30 (Gamache, supra, 48 Cal.4th at p. 407.) Nor
must the jury unanimously agree with respect to any particular aggravating
circumstance, find all aggravating factors beyond a reasonable doubt, find that the
aggravating circumstances outweigh the mitigating circumstances, or find that death
is the appropriate penalty. (Id. at pp. 406-407; D’Arcy, supra, 48 Cal.4th at p. 300;
People v. Cruz (2008) 44 Cal.4th 636, 681.) The decisions in Blakely, supra, 542
U.S. 296, Ring, supra, 536 U.S. 584, and Apprendi, supra, 530 U.S. 466, do not
affect these conclusions. (D’Arcy, supra, 48 Cal.4th at pp. 300-301; Mills, supra,
48 Cal.4th at p. 214; People v. Martinez (2010) 47 Cal.4th 911, 967.) Finally, “[t]he
federal Constitution does not require that the jury be instructed on a presumption in
favor of a sentence of life imprisonment without possibility of parole. [Citations.]”
(D’Arcy, supra, 48 Cal.4th at p. 301.)
4. Intercase proportionality review
Defendant contends the absence of intercase proportionality review violates
his rights to a fair trial, due process, and equal protection, and to be free from
arbitrary and capricious imposition of the death penalty, as guaranteed by the Fifth,
Eighth, and Fourteenth Amendments to the United States Constitution. He concedes
that the United States Supreme Court and this court have rejected this contention.
30
Notwithstanding this principle, defendant asserts the trial court should have
given his proposed instruction that defendant had no burden to prove the existence
of a mitigating factor. As noted above, the trial court was not required to instruct
on any burden of proof. In any event, defendant withdrew this proposed
instruction.
89
(Pulley v. Harris (1984) 465 U.S. 37, 50-51; Gamache, supra, 48 Cal.4th at p. 407.)
“First, intercase proportionality review . . . is not required to render California‟s
sentencing scheme constitutional. [Citations.] Second, the equal protection clause
does not require California to include in its capital sentencing scheme the same
disparate sentence review previously provided noncapital convicts under the
Determinate Sentencing Act. [Citations.]” (Gamache, at p. 407.) Defendant offers
no persuasive reason for us to reconsider this conclusion.
5. International law
Defendant contends California‟s death penalty scheme violates the
prohibition against “cruel, inhuman or degrading treatment or punishment,” set forth
in article VII of the International Covenant on Civil and Political Rights. He also
contends that evolving international norms render a sentence of death “cruel and
unusual” under the Eighth Amendment to the United States Constitution,
particularly to the extent this sentence is employed as a regular punishment for a
substantial number of crimes. We have concluded, however, that “California‟s use
of capital punishment as an authorized sentence for certain specified types of first
degree murder does not constitute cruel and unusual punishment merely because
most nations have chosen not to employ the death penalty at all. [Citations.] Nor
does our statute violate the International Covenant on Civil and Political Rights.
[Citations.]” (Taylor, supra, 47 Cal.4th at p. 900; see also D’Arcy, supra, 48
Cal.4th at p. 309; Mills, supra, 48 Cal.4th at p. 215.)
90
III. CONCLUSION
For the foregoing reasons, the judgment is affirmed in its entirety.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
91
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Foster
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S058025
Date Filed: November 18, 2010
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Stanley William Hodge
__________________________________________________________________________________
Counsel:
William D. Farber, under appointment by the Supreme, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Susan Elizabeth Miller,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William D. Farber
P.O. Box 2026
San Rafael, CA 94912-2026
(415) 472-7279
Susan Elizabeth Miller
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92186-5266
(619) 645-2306
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Thu, 11/18/2010 | S058025 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Susan Elizabeth Miller, Deputy Attorney General P.O. Box 85266 San Diego, CA |
| 2 | Foster, Richard Don (Appellant) San Quentin State Prison Represented by William D. Farber Attorney at Law P.O. Box 2026 San Rafael, CA |
| Dockets | |
| Dec 13 1996 | Judgment of death |
| Dec 23 1996 | Filed certified copy of Judgment of Death Rendered December 13, 1996 |
| Jan 24 2001 | Counsel appointment order filed appointing William D. Farber to represent applt for the direct appeal. |
| Jan 24 2001 | Compensation awarded counsel Atty Farber |
| Feb 5 2001 | Received: Notice for superior court dated 1/31/2001 re record mailed to applt counsel. |
| Mar 27 2001 | Counsel's status report received (confidential) from atty Farber. |
| Apr 26 2001 | Application for Extension of Time filed By applt. to request corr. of the record. (1st request) |
| Apr 27 2001 | Extension of Time application Granted To 7/2/2001 to applt. to request corr. of the record. |
| May 30 2001 | Counsel's status report received (confidential) from atty Farber. |
| Jun 26 2001 | Application for Extension of Time filed by applt to request correction of the record. (2nd request) |
| Jun 29 2001 | Extension of Time application Granted to 8/31/01 to request record correction |
| Jul 30 2001 | Counsel's status report received (confidential) from atty Farber. |
| Aug 21 2001 | Application for Extension of Time filed By applt. to request corr. of the record. (3rd request) |
| Aug 24 2001 | Extension of Time application Granted To 10/30/2001 to applt. to request corr. of the record. |
| Oct 1 2001 | Counsel's status report received (confidential) from atty Farber. |
| Oct 23 2001 | Application for Extension of Time filed by applt. to request corr. of the record. (4th request) |
| Oct 29 2001 | Extension of Time application Granted To 12/31/2001 to applt. to request corr. of the record. No further extensions of time are contemplated. |
| Nov 30 2001 | Counsel's status report received (confidential) from atty Farber. |
| Dec 21 2001 | Request for extension of time filed by applt. to request corr. of the record. (5th request) |
| Dec 26 2001 | Extension of time granted To 1/30/2002 to request corr. of the record. The court anticipates only one further extension totaling 30 additional days will be granted. |
| Jan 24 2002 | Request for extension of time filed By applt. to request correction of the record. (6th request) |
| Jan 28 2002 | Extension of time granted To 3/1/2002 to applt. to request correction of the record. Counsel anticiaptes filing the request for correction by 3/1/2002. After that date no further extension is contemplated. |
| Jan 30 2002 | Counsel's status report received (confidential) from atty Farber. |
| Feb 13 2002 | Received copy of appellant's record correction motion Applt's request to correct & augment the record, seal or unseal transcripts and/or other documents, settle record and correct the abstract of judgment. (81 pp.) |
| Feb 13 2002 | Compensation awarded counsel Atty Farber |
| Apr 2 2002 | Counsel's status report received (confidential) from atty Farber. |
| May 21 2002 | Compensation awarded counsel Atty Farber |
| May 30 2002 | Counsel's status report received (confidential) from atty Farber. |
| Aug 1 2002 | Counsel's status report received (confidential) from atty Farber. |
| Oct 7 2002 | Counsel's status report received (confidential) from atty Farber. |
| Dec 31 2002 | Counsel's status report received (confidential) from atty Farber. |
| Mar 4 2003 | Counsel's status report received (confidential) from atty Farber. |
| Apr 1 2003 | Counsel's status report received (confidential) (supplemental) from atty Farber. |
| May 12 2003 | Counsel's status report received (confidential) from atty Farber. |
| Jun 27 2003 | Compensation awarded counsel Atty Farber |
| Jul 2 2003 | Record on appeal filed Clerk's transcript 36 volumes (8696 pp.) and reporter's transcript 33 volumes (5962 pp.); including material under seal. Clerk's transcript includes 6282 pp. of juror questionnaires. |
| Jul 2 2003 | Appellant's opening brief letter sent, due: August 11, 2003. |
| Jul 15 2003 | Counsel's status report received (confidential) from atty Farber. |
| Aug 11 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Aug 14 2003 | Extension of time granted to 10/10/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any asisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Oct 1 2003 | Counsel's status report received (confidential) from atty Farber. |
| Oct 14 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Oct 20 2003 | Compensation awarded counsel Atty Farber |
| Oct 20 2003 | Extension of time granted to 12/9/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Dec 4 2003 | Counsel's status report received (confidential) from atty Farber. |
| Dec 8 2003 | Request for extension of time filed to file AOB. (3rd request) |
| Dec 11 2003 | Extension of time granted to 2/9/2004 to file appellant's opening brief. After that date, only three further extensions totaling 150 days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by 7/11/2004. |
| Feb 13 2004 | Counsel's status report received (confidential) from atty Farber. |
| Feb 13 2004 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Feb 26 2004 | Extension of time granted to 04/09/04 to file appellant's opening brief. After that date, only two further extensions totaling 90 additional days will be granted. Extension is granted based upon counsel William Farber's representation that he anticipates filing that brief by 07/11/04. |
| Apr 6 2004 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Apr 12 2004 | Extension of time denied to June 8, 2004 to file appellant's opening brief. After that date, only one further extensions totaling 30 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by July 11, 2004. |
| May 25 2004 | Compensation awarded counsel Atty Farber |
| May 27 2004 | Counsel's status report received (confidential) from atty Farber. |
| Jun 10 2004 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Jun 16 2004 | Filed: Supplemental declaration in support of application for extension of time to file appellant's opening brief. |
| Jun 23 2004 | Extension of time granted to 8/9/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 125 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by 12/13/2004. |
| Jul 12 2004 | Counsel's status report received (confidential) from atty Farber. |
| Aug 5 2004 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Aug 9 2004 | Extension of time granted to 10/8/2004 to file appellant's opening brief. After that date, only one further extension totaling about 65 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by 12/13/2004. |
| Sep 14 2004 | Counsel's status report received (confidential) from atty Farber. |
| Oct 8 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Oct 14 2004 | Extension of time granted to 12/13/2004 to file appellant's opening brief. No further extension is contemplated. |
| Nov 17 2004 | Counsel's status report received (confidential) from atty Farber. |
| Nov 17 2004 | Compensation awarded counsel Atty Farber |
| Dec 13 2004 | Application to file over-length brief filed by appellant to file opening brief. (116,223 word brief submitted under separate cover) |
| Dec 14 2004 | Order filed application to file appellant's opening brief in excess of 95,200 words is granted. |
| Dec 14 2004 | Appellant's opening brief filed (116,223 words; 456 pp.) |
| Dec 15 2004 | Compensation awarded counsel Atty Farber |
| Jan 10 2005 | Request for extension of time filed to file respondent's brief. (1st request) |
| Jan 11 2005 | Extension of time granted to 3/14/2005 to file respondent's brief. |
| Mar 9 2005 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Mar 15 2005 | Extension of time granted to 5/13/2005 to file respondent's brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extensionis granted based upon Deputy Attorney General Susan Elizabeth Miller's representation that she anticipates filing that brief by 9/9/2005. |
| May 12 2005 | Request for extension of time filed to file respondent's brief. (3rd request) |
| May 18 2005 | Extension of time granted to 7-12-2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon Deputy AG Susan E. Miller's representation that she anticipates filing the brief by 9-9-2005. |
| Jul 8 2005 | Request for extension of time filed to file respondent's brief. (4th request) |
| Jul 14 2005 | Extension of time granted to 9/9/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Susan Elizabeth Miller's representation that she anticipates filing that brief by 11/8/2005. |
| Sep 9 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
| Sep 13 2005 | Filed: supplemental declaration in support of application for extension of time to file respondent's brief. |
| Sep 15 2005 | Extension of time granted to 11/8/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Susan Elizabeth Miller's representation that she anticipates filing that brief by 11/8/2005. After that date, no further extension will be granted. |
| Oct 27 2005 | Request for extension of time filed to file respondent's brief. (6th request) |
| Nov 2 2005 | Extension of time granted to 1-9-2006 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 Susan E. Miller's representation that she anticipates filing that brief by 2-8-2006. |
| Jan 9 2006 | Request for extension of time filed to file the respondent's brief. (7th request) |
| Jan 12 2006 | Extension of time granted to 2/8/2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Susan Elizabeth Miller's representation that she anticipates filing that brief by 2/8/2006. After that date, no further extension will be granted. |
| Feb 8 2006 | Respondent's brief filed (56,247 words; 166 pp.) |
| Mar 6 2006 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Mar 10 2006 | Extension of time granted to May 1, 2006 to file the appellant's reply brief. After that date, only seven further extensions totaling about 420 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by June 1, 2007. |
| May 2 2006 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| May 5 2006 | Extension of time granted to June 30, 2006 to file the appellant's reply brief. After that date, only six further extensions totaling about 36 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by June 1, 2007. |
| May 9 2006 | Order filed Due to clerical error, the order filed in the above matter on May 5, 2006, is amended to read as follows: "Good cause appearing, and based upon counsel William D. Farber's representation that he anticipates filing the appellant's reply brief by June 1, 2007, counsel's request for an extension of time in which to file that brief is granted to June 30, 2006. After that date, only six further extensions totaling about 360 additional days will be granted." |
| Jun 27 2006 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Jun 30 2006 | Extension of time granted to August 29, 2006 to file appellant's opening brief. After that date, only five further extensions totaling about 300 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by June 1, 2007. |
| Aug 31 2006 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Sep 6 2006 | Extension of time granted to October 30, 2006 to file the appellant's reply brief. After tht date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by June 1, 2007. |
| Oct 24 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Oct 26 2006 | Extension of time granted to December 29, 2006 to file the appellant's reply brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon William D. Farber's representation that he anticipates filing that brief by June 1, 2007. |
| Dec 21 2006 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Dec 28 2006 | Extension of time granted to February 27, 2007 to file the appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by June 1, 2007. |
| Feb 26 2007 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Mar 5 2007 | Extension of time granted Good cause appearing, and based upon counsel William D. Farber's representation that he anticipates filing the appellant's reply brief by July 1, 2007, counsel's request for an extension of time in which to file that brief is granted to April 30, 2007. After that date, only one further extension totaling about 60 additional days will be granted. |
| Apr 27 2007 | Request for extension of time filed to fle appellant's reply brief. (8th request) |
| May 2 2007 | Extension of time granted to July 2, 2007 to file the appellant's reply brief. After that date, only one futher extension totaling about 60 additional days will be granted. Extension is granted based upon counsel William D. Farber's representation that he anticipates filing that brief by September 4, 2007. |
| Jun 28 2007 | Request for extension of time filed to file appellant's reply brief. (9th request) |
| Jul 3 2007 | Extension of time granted to September 4, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel William D. Farber's representation the he anticipates filing that brief by September 4, 2007. |
| Jul 31 2007 | Appellant's reply brief filed (41,623 words; 169 pp.) |
| Aug 8 2007 | Compensation awarded counsel Atty Farber |
| Jan 29 2010 | Letter sent to: counsel requesting review of reporter's transcript pages. |
| Feb 1 2010 | Letter sent to: counsel requesting an additional review of reporter's transcript pages. |
| Feb 11 2010 | Exhibit(s) lodged from superior court: People's exhibits - 9, 10, 38, 40, 51, 53, 54, 55, 55A, 55B, 55C, 74, 79B, 80, 82, 83, 84, 86, 90, 95, 96, 99, 100, 104, 105, 106, 114A, 127, 129, 138, 153, 155, 162, 302, 331, 348 and 354 Defense exhibits: 369 and 380 People's exhibit 114A was sent in lieu of requested exhibit 114. |
| Feb 18 2010 | Received: Letter, dated February 11, 2010 from Deputy Attorney General Susan Miller, response to court's letters of January 29, 2010 and February 1, 2010. |
| Feb 23 2010 | Received: Letter, dated February 21, 2010, from William D. Farber, Attorney at Law, response to court's letters of January 29, 2010 and February 1, 2010. |
| Jun 18 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week of September 6, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Jun 30 2010 | Filed: Letter, dated June 29, 2010, from William D. Farber, Attorney at Law, requesting oral argument not be scheduled for the calendar the week of September 6, 2010 and requesting it be rescheduled to either the October or November 2010 calendar. |
| Sep 7 2010 | Case ordered on calendar to be argued Tuesday, October 5, 2010, at 1:30 p.m., in Fresno (at Court of Appeal, Fifth Appellate District, 2424 Ventura Street) |
| Sep 14 2010 | Filed: Respondent's focus issue letter, dated September 13, 2010. |
| Sep 20 2010 | Filed: Appellant's focus issue letter, September 16, 2010. |
| Sep 16 2010 | Received: appearance sheet from Deputy Attorney General Susan Miller, indicating 30 minutes for oral argument for respondent. |
| Sep 17 2010 | Received: appearance sheet from Attorney at Law William D. Farber, indicating 45 minutes for oral argument for appellant. |
| Sep 27 2010 | Received: letter from respondent, dated September 24, 2010 with additional authorities. |
| Oct 5 2010 | Cause argued and submitted |
| Nov 17 2010 | Notice of forthcoming opinion posted To be filed on Thursday, November 18, 2010 @ 10 a.m. |
| Briefs | |
| Dec 14 2004 | Appellant's opening brief filed |
| Feb 8 2006 | Respondent's brief filed |
| Jul 31 2007 | Appellant's reply brief filed |
