IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
CHRISTOPHER ADAM GEIER,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. RCR-20413
Defendant Christopher Adam Geier was convicted by a jury of the forcible
rape of Erin Tynan (Pen. Code, § 261, subd. (a)(2)), the murder of Erin Tynan
(Pen. Code, § 187, subd. (a)), as to which a felony-murder special circumstance
was found to be true (Pen. Code, § 190.2, subd. (a)(17)), two counts of conspiracy
to commit murder (Pen. Code, §§ 182, subd. (a)(1), 187), and the murder of Curtis
James Dean (Pen. Code, § 187, subd. (a)), as to which financial gain, lying-in-wait
and multiple-murder special circumstances were found to be true (Pen. Code,
§ 190.2, subd. (a)(1), (3), (15). Defendant was also convicted of conspiracy to
murder Gail Lebouef (Pen. Code, §§ 182, subd. (a)(1), 187). The jury also found
true special allegations that defendant personally used a knife and a handgun in the
commission of the offenses. (Pen. Code, §§ 12022, subd. (b), 1203.06, subd.
(a)(1).) The jury returned death verdicts for the murders of Erin Tynan and James
Curtis Dean. The trial court declined to modify the verdict (Pen. Code, § 190.4,
subd. (e)), and sentenced defendant to death on the murder counts.1 This appeal is
automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We affirm the judgment.
A. Prosecution Guilt Phase Evidence
1. The Rape and Murder of Erin Tynan
In 1990, Erin Tynan was a military police officer stationed at Fort Irwin in
Barstow. In the spring and summer of 1990, Tynan was romantically involved
with William Jones, Jr., who was also in the Army. When Jones and Tynan had
sexual relations, she used a sponge contraceptive. According to Jones, Tynan,
who was Caucasian, had a preference for muscular African-American men like
Jones. Jones also described Tynan as a person who cared about her appearance.
As part of her grooming routine she kept her fingernails in good shape and would
regularly change their color.
Jones was acquainted with defendant, who is Caucasian, and who was also
in the Army and stationed at Fort Irwin. At some point, Jones bought a Jennings
.22-caliber semi-automatic pistol from defendant. The pistol was in pretty poor
condition. There was something wrong with the firing pin that created a problem
with the ejection of the cartridge after the gun was fired.
Jones left the Army in late July, 1990, but remained in Barstow until the
beginning of August. Before he left Barstow, Jones attended a party with Tynan at
the apartment complex in which defendant lived. Defendant was present at the
Defendant was also sentenced to eight years in prison, with a one-year
weapons enhancement on the forcible rape count, and two terms of 25 years to life
on the conspiracy counts, with additional terms of two years and one year for the
All further unspecified statutory references are to the Penal Code.
party. Defendant had been acquainted with Tynan before the party and had once
told Jones that if he had seen Tynan first “he would have been with her.” Jones
understood this to mean that defendant wanted to have sex with Tynan.
When Jones left California in August 1990, he left the pistol he had bought
from defendant with Tynan. When he spoke to her in October, she told him she
wanted to get rid of the gun and had a buyer. He told her to sell it. Robert Bishop,
an Army sergeant, who had a dating relationship with Tynan in the fall of 1990,
saw a .22- or .25-caliber semiautomatic pistol at her apartment. She kept the gun
in her closet and brought it down to show him. Anthony Brunson, another soldier
stationed at Fort Irwin, contacted Tynan in late September or mid-October about
buying the pistol that Jones had left with her. He had approximately four
conversations with her about the gun and was trying to raise the money to
purchase it up until the time of her death in November.
Eugene Knox, a soldier stationed at Fort Irwin, began dating Tynan in
November 1990. He spent the night of November 13 with Tynan and they
engaged in sexual intercourse. The next morning they both went to work at Fort
Irwin. Knox last saw her sometime after 12:30 p.m. that afternoon. At 5:42 p.m.,
Robert Bishop called Tynan from Fort Irwin and asked her if he could come and
see her. She told him no because she was tired and wanted to go to bed. At about
8:00 p.m., Joni Lee Jacobsen was visiting her friend, Jesse Hisquierdo, who lived
in the apartment adjacent to Erin Tynan’s apartment. She and Hisquierdo were
watching television when, at about 8:30 p.m., she heard a woman scream in the
next apartment. A few seconds later she heard a thump “like someone running
into the wall” or “bumping into the wall.” She assumed the people next door were
“partying” and did not investigate.
The next day, November 15, Tynan failed to report for duty. About 3:00
p.m., a Barstow police officer, Alan Schieb, was dispatched to her apartment to
check up on her. When he arrived he saw that the lights were on inside the
apartment and the television was playing rather loudly. The door was locked. He
knocked at the door, but received no response. Schieb left and returned two hours
later with Sergeant Beringer, a military police officer. Shortly after 5:00 p.m., the
apartment manager let them into Tynan’s apartment. Schieb observed that the
dead bolt was not locked, only the door knob lock. The living room did not appear
to be disturbed. Schieb and Beringer went into the bedroom and turned on the
light. They found Tynan’s body lying on the bed. She was clad in a turquoise-
colored housecoat that was open, exposing her breasts. A sheet was pulled up to
her navel. Schieb called the police dispatcher and asked for the paramedics and
detectives to be alerted.
Detective Leo Griego arrived at scene in response to Schieb’s call. Griego
determined there had not been a forcible entry into the apartment. On the dining
room table he observed bottles of nail polish and polish remover spread out on a
cloth mat. He also found a wallet with Tynan’s identification, credit cards and
some cash. There were no indications that a struggle had taken place in the
apartment. In the kitchen, Griego found two pots on the stove, one containing
noodles and the other broccoli. The food was reasonably fresh. In the bathroom
he found two empty containers for sponge contraceptives in the waste basket, but
Griego went into bedroom and examined Tynan’s body. He observed that
the fingernail on her right hand ring finger was broken off and that strands of hair
were embedded in the other nails of her right hand. The fingernails of her left
hand were also damaged and hair was found in the fingertip area of her left hand.
A pair of panties was found rolled up on the carpet. Tynan was not wearing
anything other than the house coat. Detective Griego observed that Tynan had
suffered various injuries including discoloration to her left eyebrow, abrasions and
bruises around her knees and blood smears around her left ear and a puncture
wound in the same area. Griego initially believed the puncture was a gunshot
wound but later concluded it was a stab wound. There was also blood on her foot.
There was moist blood on the carpet and on the bedsheet. Griego found a .22-
caliber cartridge on the top shelf of the bedroom closet, but no gun.
Tynan’s body was examined by Pathologist Edward Yeager. He testified
that the stab wound behind Tynan’s ear had partly severed her carotid artery. He
also found injuries to Tynan’s head, neck, upper torso and legs, and observed an
“impact abrasion” on her forehead. Yeager observed an abrasion to her anus but
found no evidence of vaginal tearing or abrasion. The absence of such injuries,
however, did not in his opinion preclude nonconsensual sexual activity.
According to Yeager, the cause of death was the stab wound and manual
Police criminalists removed various items from the bedroom and from
Tynan’s body for testing. The strands of hair embedded in her fingernails were
collected for microscopic analysis by forensic serologist David Vreland. Vreland
concluded that seven of the hairs found in Tynan’s hand could have come from
defendant.2 David Gregonis, a sheriff’s criminalist, collected forensic samples
from Tynan’s body, including pubic hairs and vaginal and rectal swabs. Seminal
fluid was detected on the vaginal swab and it was submitted for DNA testing.
That testing revealed that the DNA matched defendant’s DNA. DNA testing on a
piece of Tynan’s bedsheet that contained semen revealed that the DNA banding
Vreland also examined hairs taken from Louis Boyd, Eugene Knox, Robert
Bishop, Kelvin Sloan, and Michael Rivera, men who apparently may also have
been involved with Erin Tynan. Vreland determined that none of the hairs came
from any of these men.
pattern was consistent with Eugene Knox’s DNA. Other seminal fluid found on
the comforter did not match defendant’s DNA.
Rhonda Contreras lived with Sue Kennedy, defendant’s girlfriend at the
time of the Tynan murder. Contreras, a drug addict, testified that shortly after
Tynan’s murder she heard defendant say “the bitch had gotten what she deserved.”
Defendant said that Tynan was “kind of sleazy” and that, had she been his
girlfriend, he would not have put up with her behavior. He told Contreras that
Tynan had been brutally beaten and stabbed in the back of the neck or head,
information that had not yet appeared in the press. Geier was cleaning a
semiautomatic pistol while he made these comments and referred to the gun as his
“baby.” James Winstein, a fellow Fort Irwin soldier who was involved in the
conspiracy to murder Gail Lebouef (see post), testified under a grant of immunity
that, in December 1990, defendant told him he had murdered Tynan.
2. The Conspiracy to Murder Gail Lebouef
Gail Lebouef was the ex-wife of Jeffrey Hunter, defendant’s sergeant at
Fort Irwin; the two divorced in September 1989. She and Hunter remained in
touch after the divorce. In December 1990, Lebouef was living in Marrero, a
suburb of New Orleans, with her two daughters from her marriage to Hunter.
During the marriage, Hunter had purchased life insurance policies on Lebouef and
their children. He continued to pay the premiums on the policies after the divorce.
He was the beneficiary of the policy for Lebouef. Lebouef was aware that Hunter
was experiencing financial problems and at least one of his creditors had contacted
her about Hunter’s unpaid credit card bill. Hunter had also told her he was
concerned about whether he could make child support payments scheduled to
begin in 1991 or 1992, after he had paid off her car.
Lebouef had been living with her parents but, due to disagreements with
them, she accepted the invitation of Hunter’s sister, Robin Castle, to stay at
Castle’s home over the holidays. She and one of her daughters moved into
Castle’s house sometime in mid-December. Hunter was aware that his ex-wife
was staying with his sister. He also knew that she worked at a toy store in a
James Winstein was a tank gunner in the same battalion as defendant.3 In
late November or early December, defendant offered to pay Winstein $1,000 if
Winstein would drive him to Alabama to visit his parents. After some further
conversations, defendant confided to Winstein that his real purpose was to go to
New Orleans to commit a murder for someone for insurance money. He wanted
Winstein to drive him to New Orleans. He told Winstein he would pay him from
defendant’s share of the insurance proceeds. After Winstein agreed, defendant
provided more information about the murder, including showing Winstein a
photograph of the victim, Gail Lebouef. He told Winstein he had obtained the
photograph from Hunter. Lebouef’s photograph was in a suitcase that also
contained a double-edged black knife, a nine-millimeter pistol, a .22-caliber semi-
automatic pistol, rope and a road atlas in which he had highlighted a route to New
Orleans. Defendant told Winstein that defendant planned to break into Lebouef’s
residence in the middle of the night and kill her, making it look like a burglary.
Winstein’s job would be to wait in the car and drive defendant away after he
committed the murder.
The two men left California on December 18, 1990, and arrived in New
Orleans on December 20. Defendant had in his possession a black gym bag
containing the knife, firearms, rope, a map and a change of clothes. Once they
Winstein testified under a grant of immunity.
arrived in New Orleans, they went back and forth between Lebouef’s parent’s
house and the mall where she worked, looking for her car, eventually locating it at
the mall. Defendant wanted to kill Lebouef in the parking lot of the mall, but
Winstein objected that this was not the agreed-upon plan. Eventually, they
decided not to kill her at the mall. That evening, they returned to Lebouef’s
parent’s house looking for her car. When they did not find it, defendant
telephoned Hunter who gave him directions to Robin Castle’s home. They drove
by the house but, from the number of cars and people on the street, they thought
there might be a party, so they decided to return later.
Gail Lebouef and her oldest daughter arrived at the Castle residence at
about 10:00 p.m. They occupied the back bedroom of the house. Lebouef went to
bed at around midnight. About 3:00 a.m., defendant and Winstein returned to
Castle’s residence and parked. Defendant, dressed in dark clothing, exited the
truck with the .22-caliber pistol, a knife and rope. Lebouef was awakened at about
3:30 a.m. when the bedroom light was turned on. A gun was pointed at her face
by a man she saw in silhouette. He fired the gun, shooting her in the face.
Although she survived, she lost four teeth and suffered damage to her jawbone and
her face. Lebouef’s purse, containing approximately $400 in cash, was taken from
Winstein had fallen asleep in his car. At some point, he heard defendant’s
footsteps coming quickly toward the car and then saw him running. He jumped
into the car and said, “Let’s go, let’s go, let’s go.” They sped off. Defendant had
a black purse in his possession from which he gave Winstein $30 or $40. As they
drove north, they crossed a bridge. Defendant tossed the purse, his clothes and the
gun over the side of the bridge. Defendant described to Winstein how he had
entered the house and shot Lebouef. He said that the gun had jammed on him
after he had fired the first round. He told Winstein he had killed Lebouef. After
they returned to California, however, defendant told Winstein that she had not died
and there would be no insurance payoff.
Subsequently, Lebouef spontaneously identified defendant as the shooter
from a photograph of him in a newspaper article about the Curtis James Dean
murder (post) sent to her at her request by Detective Griego She also identified
him as her assailant at the preliminary hearing.
A .22-caliber cartridge case and a fragment of a .22-caliber projectile bullet
were recovered from the bedroom where Lebouef was shot. William Blondet, the
firearms examiner, testified that there was a “good likelihood” the bullet had been
fired from a Jennings .22-caliber handgun. He also opined that the gun was a poor
quality weapon and could have jammed if there was difficulty in chambering a
round after the weapon had been fired once and the casing ejected.
3. The Conspiracy to Murder, and the Murder of, Curtis James Dean
Curtis James Dean lived with his wife, Jennifer, and their two small
children in Victorville. Sometime in late 1990, Jennifer Dean told a coworker that
she and her husband were having marital problems. Another coworker heard
Jennifer Dean say more than once that she hated her husband and wanted him
dead. Around the same time, Jennifer Dean began having an affair with Jeffrey
On January 11, 1991, defendant approached James Winstein and told him
that a female friend of Hunter’s who lived in Victorville wanted her husband dead.
Defendant told Winstein that if he participated in killing the man, they would
receive insurance money from the policy on the man’s life. Winstein was to
provide the transportation. The killing was supposed to take place within the
month. Although defendant asked him to participate several times, Winstein
turned him down.
On the night of February 7, 1991, Jennifer Dean went to her job at a Taco
Bell but, according to a coworker, spent most of her shift talking on the telephone.
Another coworker testified that she was acting as if “something was wrong.” She
left the Taco Bell around 2 a.m.
Around 2:30 a.m., Jennifer Dean’s neighbor, Deborah Benson received a
call from Dean. Dean told Deborah Benson that she had just arrived home from
work and could not find her husband in the house. She said she thought her
husband might be sick because she “saw something on the wall.” Dean also said
some things in her bedroom were in disarray and that the house may have been
burglarized. Deborah Benson woke her husband, Scott, told him about the call,
and asked him to go check on Dean.
Scott Benson drove the short distance to the Deans’ residence and met
Jennifer Dean at her front door. Dean spoke in a very “matter of fact” voice and
did not appear to be agitated or afraid. She told Benson that her house and been
burglarized and was in disarray. When Benson entered the house, however, it did
not appear to be in disarray or to have been burglarized. Benson walked through
the house. The Deans’ daughters were asleep in the master bedroom. As Benson
moved down the hallway accompanied by Dean, he saw blood on the wall and in
the guest bathroom, near the light switch. He entered the children’s bedroom and
found the body of Curtis James Dean on the floor between the two twin beds in
what Benson described as a “fetal position.” There were “vast amounts” of blood
on the bed, floor and wall. He closed the door, went to the kitchen and called 911.
Jennifer Dean was present as he told the 911 operator about what he had
found. She did not react or speak. Because he did not know whether Curtis James
Dean was dead or alive, Benson went back into the bedroom, knelt by the body
and tried to find a pulse, but was unable to do so. He observed numerous stab
wounds to the body. He returned to the kitchen, got back on the line with the 911
operator, and told her that “it appeared that we had a death.” Again, Jennifer Dean
did not react.
Later, after the police arrived, Scott Benson took the Deans’ two small
children to his house. When they arrived at his house, Sabrina, the older child said
something about “the two mean men that killed her daddy,” or “the two mean men
that hit her daddy.” At a later point, Benson, Jennifer Dean, and the children were
driven to the sheriff’s station in a police car. While they were in the patrol car,
Sabrina repeated her comment “about the two mean men that hurt her daddy.”
The transporting officer, Deputy Gryp also heard Sabrina tell her mother that “she
saw daddy bent over in a pool of blood in the bedroom.” While they were at the
station, Benson noticed blood smears on Sabrina’s nightgown and her leg. Gryp
also saw the blood spatters and heard Sabrina complain about a bump on her head.
The police investigation revealed no signs of forced entry into the Dean
residence nor signs that the residence had been ransacked. A great deal of blood
was found inside and outside the Dean residence. Two drops of blood found on
the cement in front of the house were later determined to be consistent with
defendant’s blood. Blood found on a green hand towel left on the floor outside the
children’s bedroom was also consistent with defendant’s blood, as was blood
found on the bathroom floor, bedroom door jamb and on the hallway carpet.
Much of the rest of the blood found in the house, including the blood found on
Sabrina’s nightgown was consistent with Curtis James Dean’s blood. The blood
spatters on Sabrina’s clothing indicated she was less than five feet from her father
when he was stabbed. Curtis James Dean suffered 38 knife wounds, including a
series of wounds that appeared to have been inflicted after his death.
Police later recovered items belonging to Jennifer Dean from the apartment
of friends where she often stayed. Among those items was a paper place mat from
Taco Bell with defendant’s name and a telephone number written on it. Police
also obtained Dean’s bank records. They showed a $500 cash advance on January
Defendant’s girlfriend, Sue Kennedy, testified that a woman named
Jennifer called defendant at the apartment she shared with defendant. She testified
further that sometime in February 1991 she noticed a cut on defendant’s forehead
that he said was the result on a garage door shutting on top of his head. After
defendant was arrested, Kennedy had a phone conversation with defendant in
which he told her he had gone to the Dean residence with Mark Redden, a friend
of his, to “beat up” Dean’s husband. He told Kennedy that, when Redden started
attacking Curtis James Dean with a tire iron, defendant ran into the bathroom and
stayed there. Kennedy asked defendant if he had killed Dean for insurance
money. Defendant remained silent.
On May 6, 1991, defendant gave a statement regarding the murder of Curtis
James Dean to an Army investigator, Lester Powlen. The interview was taped and
the tape was played for the jury. Defendant described how Hunter approached
him and asked him to find someone to kill Jennifer Dean’s husband. Defendant
met with Dean and told her he would arrange “the hit” for $10,000. She gave him
a photograph of her husband. At a second meeting, she advanced him $500.
Defendant recruited Mark Redden to help with the murder. On the night of
the murder, Redden and he went to the Taco Bell where Jennifer Dean worked and
obtained the key to her house. They drove to the Dean home and entered.
Defendant was armed with a double-edged dagger and Redden carried the tire iron
from defendant’s car. The plan was for Redden to hit Curtis James Dean with the
tire iron while defendant stabbed him. But defendant told the investigator that,
once inside the bedroom where the victim was sleeping, he got “cold feet,” told
Redden he did not want to kill the victim, and went into the other room.
Defendant claimed that Redden struck Dean with the tire iron, and, at one point,
even struck defendant on the head. After Redden hit him, defendant said he went
into the bathroom. He claimed that Redden took defendant’s dagger. Defendant
heard Sabrina Dean “screaming” while her father was being murdered.
Defendant said he cleaned the cut on his head with a green towel. He and
Redden then left the house. After the murder, defendant threw his dagger, some
latex gloves and pictures of Dean into a dumpster. He and Redden buried the tire
iron and their clothing in the desert. Later, defendant took a homicide detective
into the desert and led him to a site where two sets of clothing and a tire iron were
found buried. The condition of the clothing negatively affected the ability to
obtain serological results or genetic markers. Both pairs of pants, however,
displayed impact stains and heavily saturated areas that appeared to be
B. Defense Guilt Phase Evidence
Sandra Kay Hoyt, who baby sat for Sue Kennedy, defendant’s girlfriend,
and then dated defendant herself, testified that she had observed Kennedy, Hunter,
Mark Redden and James Winstein “snorting meth” in Kennedy’s apartment.
Defendant was not present at that time.
Detective Griego testified that, when he initially spoke to Gail Lebouef
about her shooting, he showed her two photo lineups, one of which contained
defendant’s photograph and a photograph of Jeffrey Hunter, among others.
Lebouef picked out the photograph of her ex-husband, but was unable to identify
any other photograph. Later, he sent newspaper articles to Lebouef that contained
photographs of Hunter, Jennifer Dean and defendant. Griego also testified that
when he first contacted James Winstein, Winstein initially said he spent the 1990
Christmas holidays with his mother in Las Vegas. Later, he admitted he had
agreed to drive defendant to Louisiana for $1,000 where defendant told him he
was going to do “some type of drug deal.”
After Griego advised Winstein of his rights, Winstein said he did not want
to go to jail and would cooperate. Winstein then told Griego that defendant had
told him he had shot a woman but that she did not die. Eventually Winstein told
Griego he had known all along that he and defendant were going to Louisiana to
kill Hunter’s wife. Initially, Winstein said that defendant had not said anything to
him about Erin Tynan’s death, but then said defendant told him Tynan was killed
because she was getting too close to a drug investigation. Griego told Winstein he
needed help on the gun that had been used to shoot Lebouef. He told Winstein,
“give me the gun and I’ll write a letter to the D.A. saying you’re helpful.” It was
only at Winstein’s immunity hearing that he talked about seeing the gun being
disassembled and thrown away.
Defendant also called eight-year-old Sabrina Dean. Sabrina testified that
two men hurt her father. She denied having told police that her mother hurt her
father with a knife and wiped the knife with a green towel. She also denied
showing police the drawer where her mother kept knives or telling police that her
mother had blood on her or took a shower after she came home. However,
Sergeant Larry Brown of the San Bernardino Sheriff’s Department testified that
Sabrina first stated that two men had done “something bad” to her father but also
said her mother had hit her father in the back with a knife. According to Brown,
Sabrina said that her mother took a knife from the kitchen drawer, stabbed her
father in the back, rinsed the knife off in the kitchen sink, and then replaced it in
the kitchen drawer. The police took her to the Dean residence. She led them to
the knife drawer and pointed out the knife she said her mother had used.
Brown testified that Sabrina repeated her statement about her father having
been stabbed by her mother. Sabrina also again said that her father had been
attacked by two men. At a final interview a few days after the murder, Sabrina
said that her mother had stabbed her father after the two men had attacked him, in
contrast to her earlier statements in which she said her mother had stabbed her
father before the two men attacked him.4
C. Prosecution Penalty Phase Evidence
The prosecution did not present additional evidence at the penalty phase of
D. Defense Penalty Phase Evidence
A number of defendant’s friends and family members came from
defendant’s home state of Alabama to testify on his behalf. These witnesses
testified that defendant was a follower, rather than a leader, who tried to please
people and for whom acceptance was important. Two of defendant’s uncles who
had served in the military testified that this trait of being a follower may have led
defendant to be manipulated by Sergeant Hunter. Other witnesses testified that
defendant was influenced in his behavior by Sergeant Hunter.
Defendant’s friends also testified that defendant was deeply affected by the
murder of his best friend, Eric King, when defendant was 17 years old. Defendant
was extremely shaken by having witnessed the murder and became reclusive,
paranoid and depressed. Testimony was also introduced regarding defendant’s
difficult relationship with a woman who came to live with defendant’s family after
his father died, and with his first stepfather. Defendant’s friends and family
members also testified that defendant had not been a violent person when he was
growing up and they expressed shock at the charges of which he had been
As noted, the pathologist testified that some of Dean’s knife wounds were
Edward Fischer, a clinical psychologist, testified extensively about
defendant, providing a social history. Defendant was born in Anniston, Alabama,
and was the youngest of three brothers. As a child he was the target of his
brother’s ridicule because he was thin and sickly. When defendant was five, his
father suffered a stroke and, approximately two years later, died following a
second stroke. Defendant’s father was the central figure in his life because his
mother was busy with college and his brothers were at school. Defendant felt
responsible for his father’s death. After his father’s death, a “masculine woman”
named Sue came to live with the family and attempted to fill the paternal role.
She was disliked by defendant and his brothers, and his oldest brother ran away
while she was living with them.
After Sue’s departure, defendant’s mother married a man named Virgil.
Defendant was eight years old. Defendant’s stepfather constantly criticized him.
Virgil eventually left. After Virgil left, defendant’s older brothers also left home
and his mother pursued her doctorate and was involved in her teaching and her
church activities, leaving defendant on his own. Defendant became involved in
Dungeons and Dragons, a fantasy game, and karate. He also befriended Eric
King, who became his best friend. When defendant was 17, Eric King was shot to
death, in defendant’s presence, following a confrontation with some other boys.
Following the shooting, someone shot defendant’s dog, which led defendant to
believe the boys who had killed King were after him as well. Dr. Fischer
described defendant’s reaction to Eric King’s death — depression, guilt and
paranoia — as indicative of posttraumatic stress disorder.
During his teenage years, defendant used marijuana, drank beer and
experimented with LSD.
At some point in his late teenage years, defendant’s mother remarried and
moved in with her new husband, leaving defendant alone in the family house.
Defendant lived with a friend named Bobby Watson. They were joined by the
woman who became defendant’s wife, Kim. After Kim’s boyfriend committed
suicide, she attempted an overdose and was hospitalized. She asked defendant to
get her out of the hospital and moved in with him and Watson.
After defendant and Kim married, defendant joined the army. The marriage
disintegrated, and Kim became involved with another man. After they separated,
defendant began to exhibit what Fischer characterized as symptoms of manic
behavior that may have been the beginning of hypomania. According to Fischer,
symptoms of a hypomanic period, as set forth in the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders—Third
Edition, include decreased need for sleep, more energy, increased self-esteem,
productivity and creative thinking, extreme gregariousness, hypersexuality,
excessive involvement in pleasurable activities with no concern for negative
consequences, restlessness, increased talkativeness and inappropriate laughing.
Fischer testified that another aspect of hypomania is a desire to please people and
to look for external direction from other people rather than seeking it from within.
Defendant’s mania was exacerbated by his drug use, which included the use of
amyl nitrate, liquid codeine and amphetamines. He also used steroids, a drug that
can make a person’s actions unpredictable and aggressive.
Fischer administered a series of tests to defendant including the Wechsler
Adult Intelligence Test, a Bender-Gestalt Test and the Minnesota Multiphasic
Personality Inventory (MMPI). The latter test indicated defendant was psychotic
with a likely diagnosis of “bipolar disorder or mania.” According to Fischer, a
person with this profile is usually single, would have a hard time controlling
himself, and exercises poor judgment. Defendant tested in the 98 percentile for
mania and the 95 percentile for schizophrenia. Fischer explained, “When you get
to this elevation . . . you are talking about somebody who is generally psychotic or
prepsychotic.” Fischer concluded that defendant was a full-blown manic.
According to Fischer, while people suffering from hypomania know the difference
between right and wrong “they may be responding to unreal . . . data in the sense
of hallucinations or delusions.” According to Fischer, the willingness of a manic
to accommodate his feelings and attitudes to those of others, arising from “the
relative instability of the ego” is “how people who are mentally defective are used
by other people in . . . a conspiracy. He makes his decisions, he is responsible for
his decisions, but he is unduly influenced by others.”
The defense also presented the testimony of Sergeant Jeffrey Hunter from
his trial. Hunter testified that he had counseled defendant about defendant’s drug
problem. He admitted to having introduced defendant to Jennifer Dean, but
denied having discussed with defendant a plan to kill Curtis James Dean. He also
essentially denied participation in the shooting of Gail Lebouef. He testified that,
after the murder of Curtis James Dean, defendant told Hunter if defendant were
picked up and questioned, Hunter and Jennifer Dean would be “taken out.” He
also told Hunter that Hunter was supposed to have been “in that room” in New
Orleans instead of Gail Lebouef and said, “I won’t make that mistake next time.”
Hunter testified that these statements frightened him. Hunter also testified that
defendant admitted to him his participation in the murder of Curtis James Dean,
but Hunter questioned whether defendant had taken part in the murder.
A videotape of a police interview of Jennifer Dean was also played for the
jury. Dean said that she stabbed her husband to death with a kitchen knife she had
taken from the knife drawer in the kitchen. She said she was naked when she
killed her husband, and, after killing him, cleaned the knife and put it back in the
drawer. She said she then took a shower and got dressed. She said she had killed
her husband because he had hurt Sabrina. She claimed that the earlier inconsistent
statements she had given to the police about who killed her husband were false.
She said no one had helped her kill her husband. She explained that Sabrina’s
comment about the two men who had attacked her father referred to the
A. Pretrial Issues
the trial court abused its discretion when it granted
the prosecution’s motion to consolidate charges involving Erin Tynan (rape and
murder with felony-murder special circumstances), with those involving Gail
Lebouef (conspiracy to commit murder and solicitation of murder) and those
involving Curtis James Dean (conspiracy to commit murder and murder with
financial gain, lying-in-wait and multiple-murder special circumstances). He
additionally argues that, even if the trial court did not abuse its discretion at the
time it granted the motion, joinder actually resulted in gross unfairness amounting
to a denial of due process. (People v. Ramirez (2006) 39 Cal.4th 398, 440.)
In relevant part, section 954 provides “if two or more accusatory pleadings
are filed” charging “two or more different offenses of the same class of crimes or
offenses . . . the court may order them to be consolidated.” (§ 954.) “ ‘Murder
and rape are assaultive crimes against the person and, as such, are “offenses of the
same class of crimes” within the meaning of section 954 and were properly
joinable. [Citations.]’ ” (People v. Ramirez, supra, 39 Cal.4th at p. 439, quoting
People v. Maury (2003) 30 Cal.4th 342, 392.) “Thus, defendant must show that a
substantial danger of prejudice compelled severance. [Citation.] We ask whether
the denial of severance was an abuse of discretion, given the record before the trial
court. [Citation.] A pretrial ruling that was correct when made can be reversed on
appeal only if joinder was so grossly unfair as to deny due process.” (People v.
Stitely (2005) 35 Cal.4th 514, 531.)
“Refusal to sever may be an abuse of discretion where: (1) evidence on the
crimes to be jointly tried would not be cross-admissible in separate trials; (2)
certain of the charges are unusually likely to inflame the jury against the
defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another
‘weak’ case, so that the ‘spill over’ effect of aggregate evidence on several charges
might well alter the outcome of some or all of the charges; (4) any one of the
charges carries the death penalty or joinder of them turns the matter into a capital
case.” (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
Because defendant emphasizes what he asserts is the absence of cross-
admissible evidence between the Tynan charges and the Lebouef and Dean
charges, it is necessary to point out that section 954.1 expressly provides that
“where two or more accusatory pleadings charging offenses of the same class of
crimes or offenses have been consolidated, evidence concerning one offense or
offenses need not be admissible as to the other offense or offenses before the
jointly tried offenses may be tried together before the same trier of fact.” (Italics
added.) Thus, “cross-admissibility is not the sine qua non of joint trials.” (Frank
v. Superior Court (1989) 48 Cal.3d 632, 641.) Therefore, while “prejudice is
usually dispelled” if “evidence of one crime would be admissible in a separate trial
of the other crime” (People v. Stitely, supra, 35 Cal.4th at pp. 531-532), “lack of
cross-admissibility is not, by itself, sufficient to show prejudice and bar joinder.
[Citations.]” (Id., at p. 532; Belton v. Superior Court (1993) 19 Cal.App.4th 1279,
1286 [section 954.1 “is a codification of several Supreme Court cases . . . that hold
that while cross-admissibility may be considered as a factor suggesting possible
prejudice, the absence of cross-admissibility does not, by itself, suffice to
Setting aside for a moment the issue of cross-admissibility, none of the
other factors for assessing prejudice arising from joinder support defendant’s
claim that the trial court abused its discretion by granting consolidation. None of
the three cases was more inflammatory than the other, as each involved
comparably egregious facts. Nor was the evidence of one case significantly
weaker than the evidence of the others so as to create the danger of a “spillover”
effect that occurs when “weaker charges [are] joined with strong charges so that
the effect of the aggregate evidence might alter the outcome of the trial.” (People
v. Marshall (1997) 15 Cal.4th 1, 28.)
With respect to the Tynan case, defendant’s hairs were found in Tynan’s
hand and his semen in her vagina. He was aware that she was in possession of the
Jennings handgun, which was the only item missing from her apartment after her
murder, and he was observed with a handgun after the murder. Furthermore,
defendant was aware of details of the murder before they were released to the
public, and he told Winstein that he had killed Tynan. Regarding the Lebouef
case, defendant’s accomplice, Winstein, testified about defendant’s commission of
the offenses against Lebouef, and Lebouef identified defendant as the man who
tried to kill her. As to the Dean case, defendant’s own statement established that
he had been hired to kill Curtis James Dean. He also admitted to having been at
the scene of the Dean murder, although he tried to minimize his participation. He
was also implicated in the Dean murder by blood evidence and Sabrina Dean’s
testimony that two men hurt her father. Thus, the evidence against defendant’s
was equally strong in all three cases.
Finally, “[t]he capital charges were not the result of joinder of the various
incidents.” (People v. Mendoza (2000) 24 Cal.4th 130, 162.)
On the issue of cross-admissibility, defendant essentially concedes that the
evidence in the Lebouef case was cross-admissible in the Dean case because both
“arguably share some common characteristics” but claims that “the Tynan offense
is totally dissimilar from both of them.”
As we explained in People v. Johnson (1988) 47 Cal.3d 576, the issue of
cross-admissibility “is not the cross-admissibility of the charged offenses but
rather the admissibility of relevant evidence” that tends to prove a disputed fact.
(Id., at p. 598; see Evid. Code, § 201.) Thus, in Johnson, we concluded that
cartridges and a gun clip found at the scene of a rape were arguably taken from the
scene of an earlier murder and were “circumstantial evidence that defendant was
involved in both crimes.” (Id. at p. 589.) Similarly, here, evidence that the
Jennings .22-caliber handgun was taken from Tynan’s apartment and then was
arguably used in the attempted murder of Gail Lebouef is circumstantial evidence
that defendant was involved in both crimes.
Defendant contends that his use of the handgun in the Lebouef case could
have been established without admission of any evidence regarding how he
obtained the gun, and that his removal of the handgun from Tynan’s apartment
could have been established without the evidence of his subsequent use of the
handgun in the Lebouef case. But defendant was identified as the perpetrator of
the attempt to kill Lebouef and, therefore, evidence that he used the gun taken
from Tynan’s apartment in the attempt on Lebouef would constitute some
evidence that he was the also person who removed the gun from Tynan’s
apartment and, by implication, murdered Tynan. Thus, in a separate trial of the
Tynan offenses, evidence of defendant’s use of the gun in the attempt on Lebouef
could be admissible on the question of identity. Similarly, in a separate trial of the
Lebouef case, evidence that defendant was identified, through DNA evidence, as
the person who assaulted Tynan and removed the gun from her apartment, the gun
which was then used against Lebouef, could be admitted as some evidence that
defendant was the person who attempted to kill Lebouef. Thus, in citing the
potential cross-admissibility of the handgun evidence as one reason supporting
consolidation of these cases we cannot say the trial court’s exercise of discretion
was “outside the bounds of reasons.” (People v. Ochoa (1998) 19 Cal.4th 353,
408; People v. Johnson, supra, 47 Cal.3d at p. 590 [“In weighing its discretionary
power to order separate trials, the trial court could consider this interplay of
evidence between the two occurrences”].)
We emphasize, however, that, even if cross-admissibility did not support
consolidation of the cases, the absence of cross-admissibility alone would not
sufficient to establish prejudice where (1) the offenses were properly joinable
under section 954, and (2) no other factor relevant to the assessment of prejudice
demonstrates an abuse of discretion. (People v. Stitely, supra, 35 Cal.4th at pp.
We agree with defendant that the various theories offered by the
prosecution that evidence in the Tynan case was cross-admissible in the Dean case
are not persuasive. Contrary to the prosecution’s claim, there was nothing so
distinctive about the use of a knife in the two cases as to support an inference that
defendant was the perpetrator. Nor does the additional fact that defendant’s entry
into each victim’s residence was accomplished without force support such an
inference. (People v. Bean (1988) 46 Cal.3d 919, 937 [To be admissible as modus
operandi evidence the “common marks must be distinctive rather than ordinary
aspects of any such category of crime. They must be sufficiently distinctive that
they bear defendant’s unique ‘signature’ ”].) Nonetheless, the lack of cross-
admissible evidence as between the Tynan and Dean offenses does not establish
prejudice where, as explained, the offenses were of the same class and therefore
statutorily joinable under section 954.1, and none of the factors relevant to the
assessment of prejudice supports defendant’s claim of prejudice. Moreover, for
the reasons explained above, because the handgun evidence was cross-admissible
in the Tynan and Lebouef cases and evidence from the Lebouef case was, in turn,
cross-admissible in the Dean case, consolidation of all three cases served the
interest of judicial efficiency. (People v. Ochoa, supra, 19 Cal.4th at p. 409
[“Because consolidation ordinarily promotes efficiency, the law prefers it”].)
Accordingly, we conclude that the trial court did not abuse its discretion when it
granted the joinder motion.
We also reject defendant’s further claim that, even if the trial court did not
abuse its discretion in the first instance by granting joinder, its ruling actually
resulted in gross unfairness amounting to a denial of due process. (People v.
Stitely, supra, 35 Cal.4th at p. 531.) Defendant asserts that evidence of “planning,
deliberative actions, and lack of regard for the well-being of others” introduced in
connection with the Dean and Lebouef offenses influenced the jury’s
consideration of the Tynan offense, which he argues had none of this type of direct
evidence. His premise that such evidence was lacking with respect to the Tynan
offense is erroneous. The circumstances of the Tynan offense show planning,
purpose and a disregard for her well-being. Defendant, who had expressed a
sexual interest in Tynan and was aware she was in possession of the handgun he
had sold to William Jones, gained admittance to her apartment, raped and
murdered her, and took the handgun to use in the attempt on Lebouef’s life.
Therefore, we reject defendant’s claim that there was a spillover effect of evidence
admitted in connection with the Dean and Lebouef cases into the Tynan case,
much less that such evidentiary spillover resulted in a due process violation.
Finally, as a corollary argument, defendant contends that the trial court
erred by failing to sua sponte instruct the jury that it could not use evidence of one
crime to convict him of other crimes. Defendant maintains that this instructional
error violated his due process rights, right to unbiased jury and to a fair and
reliable penalty determination.
As defendant concedes, pursuant to CALJIC No. 17.02, the jury was
instructed as follows: “Each count charges a distinct crime. You must decide
each count separately. The defendant may be found guilty or not guilty of any or
all the crimes charged. Your finding as to each count must be stated in a separate
People v. Catlin (2001) 26 Cal.4th 81, we concluded that the trial court
had correctly refused to give an instruction along the same lines as the instruction
defendant argues should have been given here: “ ‘Evidence applicable to each
offense charged must be considered as if it were the only accusation before the
jury.’ ” (Id., at p. 153.) We explained that “[c]ontrary to the import of the
proposed instruction, under Evidence Code section 1101 the jury properly could
consider other-crimes evidence in connection with each count, and also could
consider evidence relevant to one of the charged counts as it considered the other
charged count.” (Ibid.) We noted that in Catlin, as here, certain evidence would
have been cross admissible in separate trials of the offenses. Finally, we rejected
the proposed instruction as cumulative of CALJIC No. 17.02. (Ibid.)
As the Attorney General points out, in this case, unlike Catlin, defendant
failed even to propose a modification of CALJIC No. 17.02, or to propose an
additional instruction, thus forfeiting the claim of instructional error. (People v.
Kimble (1988) 44 Cal.3d 480, 503 [where trial court “correctly instructed the jury
regarding the law, it was defendant’s obligation to request any clarifying or
amplifying instruction on that subject”].) Even if defendant had not forfeited the
claim, we would reject it for the same reasons we rejected the comparable
argument advanced in Catlin. Necessarily, then, we reject defendant’s collateral
claim that the instructional error lowered the prosecution’s burden of proof.
B. Guilt Phase Issues
1. Third Party Culpability Evidence
the trial court erred when it excluded evidence that
a man named Kelvin Sloan, rather than defendant, may have murdered Erin
Tynan. He asserts, further, that the error violated his constitutional rights under
the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution.
We find no error.
At a hearing conducted pursuant to Evidence Code section 402, the defense
presented the testimony of Kelvin Sloan, Ruby Green, and Nilia Harrison for
purposes of establishing a third party culpability defense based on the theory that
Sloan, rather than defendant, killed Erin Tynan.
Sloan testified that in November 1990, he was a Marine stationed at Fort
Irwin and also worked parttime at a restaurant called Naugles. There, on
November 5 or 6, he met Tynan. A day or two after he met her, he spent several
hours at her apartment, but he did not engage in sexual relations with her. He
testified he went to her house on one other occasion, staying for about an hour, but
he could not remember the date.
According to the evidence, Erin Tynan was murdered in Barstow on the
night of November 14, 1990. Sloan testified that he was hospitalized at Camp
Pendleton from November 9 to November 16, 1990, for a seizure disorder, after he
collapsed at a ceremony marking the “Marine Corps birthday.” Camp Pendleton
is 160 to 170 miles away from Barstow. For the first two days of Sloan’s
hospitalization, he was strapped to a bed that had the guardrails up. The guardrails
remained up until he was released from the hospital on November 16. He was not
permitted to leave the hospital before that date. On November 16, Sloan was
transported by ambulance from the hospital to Fort Irwin and from November 19
to November 23, he stayed with his sister at her home in Moreno Valley.
Documents presented at the hearing supported Sloan’s testimony that he was not
discharged from the hospital at Camp Pendleton until November 16, two days
after Tynan’s murder. Defense counsel acknowledged that “The record does show
a discharge date of the 16th . . . . That part is true.”
Following Sloan’s testimony and the introduction of the hospital discharge
papers, the trial court told defense counsel, that “I am proceeding on the
assumption based on the witness’ testimony that it was impossible for him to leave
the Camp Pendleton facility to be in Barstow on the date in question. You will
have every opportunity to check with Marine personnel, Navy personnel,
whatever, to rebut that assertion. But if you are unable to rebut it. I will have to
accept as being true the fact that [Sloan] was confined in a locality which is a long
ways from Barstow and that he therefore could not have been in the Barstow area
at the time the crime was committed.” Defense counsel agreed that the distance
between Camp Pendleton and Barstow “is at least 160, 170 miles.”
Nevertheless, to “perfect the record,” the trial court allowed the defense to
call Ruby Green and Nilia Harrison. Ruby Green testified that she and Sloan were
living together in November 1990 and continued to live together until they
separated in April 1991.5 Green testified that she saw Sloan at Naugles with
Tynan on the night Tynan was murdered. She knew it was that night because she
read about the murder in the newspaper “a couple of days later.” She testified
further that Sloan did not come home that night and, when he did, he was wearing
clothes other than the Naugles uniform in which she had seen him earlier. He told
her he had gone to the barracks to pick up some clothes and had fallen asleep after
The precise nature of their relationship was not established, but Green had a
baby by another man while she was living with Sloan.
he and someone named Boyd dropped Tynan off at her house. Green
acknowledged that Sloan had spent three or four days in the hospital in November
1990. On cross-examination, she also acknowledged that she did not know the
date of Tynan’s murder or the date when Sloan did not come home.
Nilia Harrison testified that, toward the end of 1990, she was at the home of
her cousin, Eva Lawrence, with Sloan. Sloan told her the police had picked him
up in connection with Tynan’s murder. Sloan told her he and Tynan had been
close friends “and they were trying to set him up for the murder.” She then
testified that he told her “he didn’t mean to do it.” She said she told Sloan “that
[Harrison’s] friend . . . was talking about his friend was getting set up for the
murder and that this friend was Jonathan Knox.” Sloan asked her about a man
named Ephraim Rollins “[b]ecause he said he wanted to know that person that
looked like him Ephraim, [and] he wanted to know Jonathan Knox.” Harrison
then testified that Sloan said “that he didn’t mean to kill her.” On cross-
examination and redirect examination she again testified that Sloan said someone
had set him up for the murder and that the person who committed it “looked just
like him.” She again testified that Sloan told her he “didn’t mean to kill her.” She
acknowledged that she did not remember when the conversation had occurred.
Following argument, the trial court ordered the defense not to mention
Sloan or the other witnesses during opening argument, or in the questioning of any
witness, or to call Green or Harrison “until we have had a further hearing outside
the presence of the jury to establish the relevance of any of their testimony. But
my preliminary ruling is that based on [the hospital discharge documents that] at
least on their face . . . establish the fact that Mr. Sloan could not have been in
Barstow on the date of the murder and therefore his testimony and the testimony
of the other two witnesses would be irrelevant.” The defense did not renew its
attempt to present this evidence.
“The principles of law are clear. . . . [T]he standard for admitting evidence
of third party culpability [is] the same as for other exculpatory evidence: the
evidence [has] to be relevant under Evidence Code section 350 and its probative
value [can]not be ‘substantially outweighed by the risk of undue delay, prejudice,
or confusion’ under Evidence Code section 352.” (People v. Kaurish (1990) 52
Cal.3d 648, 685.) “At the same time, we do not require that any evidence,
however remote, must be admitted to show a third party’s possible culpability. . . .
[E]vidence of mere motive or opportunity to commit the crime in another person,
without more, will not suffice to raise a reasonable doubt about a defendant’s
guilt: there must be direct or circumstantial evidence linking the third person to the
actual perpetrator of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833;
People v. Panah (2005) 35 Cal.4th 395, 481.)
Applying this standard, it is clear that Ruby Green’s testimony—that she
saw Sloan with the victim the night of the murder, that he failed to return to their
residence that night, and later told her that he and Boyd had dropped Tynan off at
her apartment—was properly excluded. Such evidence does not rise even to the
status of motive evidence. While it could be generously construed as possible
evidence that Sloan had the opportunity to commit the crimes, as noted, evidence
of mere opportunity without further evidence linking the third party to the actual
perpetration of the offense is inadmissible as third party culpability evidence.
Somewhat more problematic is the testimony of Nilia Harrison that Sloan
made comments that could be construed as an admission that he killed Erin Tynan.
The problem here is not, as defendant maintains, that the trial court improperly
excluded the testimony because defendant failed to produce evidence
controverting the documentary evidence that Sloan was in a hospital 160 or 170
miles away from Barstow the night Tynan was killed. The problem is that
admission of the evidence would have necessitated a mini-trial on the question of
Sloan’s whereabouts on the night of the murder thus creating the possibility “of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Although the trial court did not expressly base its ruling on Evidence Code
section 352, we review the ruling, not the court’s reasoning and, if the ruling was
correct on any ground, we affirm. “No rule of decision is better or more firmly
established by authority, nor one resting upon a sounder basis of reason and
propriety, than that a ruling or decision, itself correct in law, will not be disturbed
on appeal merely because given for the wrong reason. If right upon any theory of
law applicable to the case, it must be sustained regardless of the considerations
which may have moved the trial court to its conclusion.” (People v. Zapien (1993)
4 Cal.4th 929, 976.) In light of the confused and contradictory tenor of Harrison’s
testimony – asserting at one point that Sloan said someone was framing him for
the murder, and at another, that he confessed to it – her testimony possessed, as the
prosecutor noted, “minimal probative value.” Balanced against this minimal
probative value was the “probability” that the admission of Harrison’s testimony
would have “necessitate[d] undue consumption of time or . . . confus[ed] the
issues, or misle[d] the jury.” (Evid. Code, § 352.) On this ground, therefore, the
exclusion of her testimony was not error.
Even if we assume that the trial court erred by not admitting the testimony
of Green or Harrison, any error was harmless. Other than the minimally probative
testimony of these witnesses, there was no evidence at all, direct or circumstantial,
that connected Sloan to the actual perpetration of the rape and murder of Erin
Tynan. By contrast, the evidence that defendant was the perpetrator was
extremely strong. His sperm was found in the victim’s vagina, his hairs were
found in her hands, he revealed details of the murder to Rhoda Contreras that had
not yet been made public, used a firearm in the attempted murder of Gail Lebouef
that was similar to the firearm taken from Tynan’s apartment the night she was
killed, and told Winstein that he had killed Tynan. Therefore, “we conclude it is
not reasonably probable that a result more favorable to defendant would have been
reached in the absence of the error.” (People v. Hall, supra, 41 Cal.3d at p. 836,
citing People v. Watson (1956) 46 Cal.2d 818, 837.)
2. Exclusion of Jennifer Dean’s Statement
Defendant contends that the trial court erroneously excluded as hearsay a
videotaped statement by Jennifer Dean in which she claimed to have killed her
husband. Defendant sought to introduce the videotape under the hearsay
exception for statements against penal interest. (Evid. Code, § 1230.) He asserts
that the error violated his Fifth, Sixth and Fourteenth Amendment rights to a fair
trial. We conclude that the trial court properly excluded the statement as
untrustworthy. (People v. Cudjo (1993) 6 Cal.4th 585, 607 [trustworthiness is a
threshold requirement for admission of a statement under Evid. Code, § 1230].)
After her husband’s murder, Jennifer Dean was questioned by police and
gave three statements, two of which were videotaped. In her first statement, which
was videotaped, she said she came home from work, was unable to find her
husband, and knew nothing of his death. In a second statement, which was not
videotaped, she suggested that defendant and Jeffrey Hunter had killed her
husband on their own initiative to obtain insurance money. In a third statement,
which was videotaped, she told police that she alone had killed her husband
because he had hurt their daughter, Sabrina. She claimed to have stabbed him to
death with a kitchen knife while she was nude, following an argument with him.
After killing her husband, she said she washed the knife, took a shower, dressed
and called her neighbors.
Defendant called Dean to the stand, but she asserted her privilege against
self-incrimination and was declared by the trial court to be unavailable.6
Defendant then sought to introduce the third statement as a statement against penal
interest. (Evid. Code, § 1230.) Ultimately, the trial court declined to admit the
third statement on the grounds that it failed to meet the exception’s threshold
requirement of trustworthiness. The court observed that the first and third
statements were “virtually mutually contradictory which indicated that . . . at least
one of the versions was unreliable because it was contradicted by another
version.” The court found, further, that taken as a whole the third statement was
“exculpatory, whether it was setting up a possible defense of self-defense or
reduction of a charge from murder to manslaughter or whatever.” Alternatively,
the trial court found that the statement was barred by Evidence Code section 352
because “to rule to the contrary would open up this whole trial to other evidence
which I think in the final analysis would confuse the jury.”
“Evidence Code section 1230 provides that the out-of-court declaration of
an unavailable witness may be admitted for its truth if the statement, when made,
was against the declarant’s penal interest. The proponent of such evidence must
show ‘that the declarant is unavailable, that the declaration was against the
declarant’s penal interest, and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.’ ” (People v. Lucas (1995) 12
Cal.4th 415, 462.) “The focus of the declaration against interest exception to the
hearsay rule is the basic trustworthiness of the declaration. [Citations.] In
At the time of defendant’s trial, Dean had been tried and acquitted of the
murder of her husband, but faced possible retrial on the charge of conspiracy to
commit murder, a mistrial having been declared on this count after her jury failed
to reach a verdict.
determining whether a statement is truly against interest within the meaning of
Evidence Code section 1230, and hence is sufficiently trustworthy to be
admissible, the court may take into account not just the words but the
circumstances under which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.” (People v. Frierson
(1991) 53 Cal.3d 730, 745.) “[E]ven when a hearsay statement runs generally
against the declarant’s penal interest and redaction has excised exculpatory
portions, the statement may, in light of circumstances, lack sufficient indicia of
trustworthiness to qualify for admission. . . . [¶] . . .We have recognized that, in
this context, assessing trustworthiness ‘ “requires the court to apply to the peculiar
facts of the individual case a broad and deep acquaintance with the ways human
beings actually conduct themselves in the circumstances material under the
exception.” ’ ” (People v. Duarte (2000) 24 Cal.4th 603, 614.) Finally, such
statements, even if admissible are nonetheless subject to Evidence Code section
352 under which “the trial court is required to weigh the evidence’s probative
value against the dangers of prejudice, confusion, and undue time consumption.”
(People v. Cudjo, supra, 6 Cal.4th at p. 609.)
A trial court’s decision to admit or exclude evidence is a matter committed
to its discretion “ ‘and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” (People v. Brown (2003) 31
Cal.4th 518, 534.) The trial court did not abuse its discretion in excluding the
videotape of the third statement. As the court observed, the third statement was
utterly inconsistent with Dean’s initial statement, in which she told police she
knew nothing of her husband’s death, and also inconsistent with her subsequent
statement blaming defendant and Hunter for her husband’s murder. Thus, on their
face, two of her three statements were absolutely untruthful, rendering the
reliability of any of the statements questionable. The fact that Dean confessed to
killing her husband in the third statement did not, by itself, establish that the third
statement was any more reliable than the other two. Dean’s admission was
accompanied by an explanation that she killed her husband because she had just
quarreled with him and that he had hurt their daughter. Dean may have believed
that this explanation minimized her culpability or excused her conduct altogether.
Moreover, Dean was having an affair with Hunter and her third statement, taking
the blame for the murder with an excuse, may have been her attempt to protect
him and, by extension, his confederate, defendant. Thus, we conclude that in
examining Dean’s statement in light of “the circumstances under which [it] was
uttered, [Dean’s] possible motivation . . . and [Dean’s] relationship to [Hunter]”
(People v. Frierson, supra, 53 Cal.3d at p. 745), the trial court did not abuse its
discretion in excluding the statement.
We also agree with the trial court’s alternative justification for excluding
the evidence under Evidence Code section 352. Given Dean’s contradictory
statements and the complexity of her possible motives for making them, had the
third statement been admitted, the trial would have devolved into an inquiry into
those matters. Thus, the questionable value of that evidence would have been
“substantially outweighed” by the probability that its admission would have
“necessitate[d] undue consumption of time” or “confuse[d] the issues” and misled
the jury. (Evid. Code, § 352.) Having found no error, it is unnecessary to
examine defendant’s claims of constitutional error or prejudice.
3. Admission of the Jones and Brunson Statements
Defendant contends that the trial committed reversible error when it
admitted statements by prosecution witnesses, William Jones and Anthony
Brunson, that defendant argues were inadmissible hearsay. Jones was permitted to
testify that Erin Tynan indicated that she preferred muscular African-American
men as sexual partners. The trial court admitted the testimony over defendant’s
objection as relevant to Tynan’s “state of mind.” Brunson, in testifying to his
efforts to purchase the Jennings .22-caliber handgun from Tynan, testified that in
the fall of 1990, Tynan told him she had the gun. The trial court admitted the
testimony over defendant’s hearsay objection as nonhearsay evidence of
Brunson’s conduct, e.g., that he continued to seek to purchase the gun from her,
relevant to whether she still possessed the gun the night she was murdered.
Defendant argues that the errors were both individually and cumulatively
The trial court’s evidentiary rulings are reviewed for abuse of discretion.
(People v. Jablonski (2006) 37 Cal.4th 774, 821; People v. Rowland (1992) 4
Cal.4th 238, 264 [admissibility of evidence turning on “hearsay rule/state of mind
exception” subject to abuse of discretion review].) We conclude that the trial
court did not abuse its discretion in admitting Jones’s testimony and while it erred
in admitting Brunson’s testimony, the error was harmless.
Turning first to Jones’s testimony regarding Tynan’s indication of her
preferences in men, the question is whether that testimony was admissible under
the state of mind exception to the hearsay rule set forth in Evidence Code section
1250. In pertinent part, that section permits “evidence of a statement of the
declarant’s then existing state of mind, emotion, or physical sensation . . . when
[¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or
physical sensation at that time or any other time when it is itself an issue in the
action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of
the declarant.” (Evid. Code, § 1250, subd. (a).)
In this case, because there was evidence that defendant had sexual relations
with Erin Tynan the night she was killed, the Attorney General argues that the
testimony was relevant to the issue of consent; e.g., that, given her preferences,
Tynan would not have consented to sexual relations with defendant, who is White.
As we observed in People v. Hernandez (2003) 30 Cal.4th 835, “[a]
prerequisite to this exception to the hearsay rule is that the declarant’s mental state
or conduct be factually relevant.” (Id. at p. 872.) Hernandez involved a murder
victim’s statement a week before he was killed that defendant and two others were
going to kill him. As we pointed out, “A murder victim’s fear of the alleged killer
may be in issue when the victim’s state of mind is directly relevant to an element
of the offense.” (Ibid.)
An example of this principle is found in People v. Thompson (1988) 45
Cal.3d 86, in which we held that evidence that the murder victim was afraid the
defendant would kill her was admissible under the state of mind exception because
it went to whether “she willingly had intercourse with defendant, which was very
much in issue given the prosecution theory of murder during the commission of
rape. As her expression of fear of defendant on the very night of the murder tends
to indicate she did not consent to intercourse, it was relevant in this case.” (Id. at
p. 103; see People v. Waidla (2000) 22 Cal.4th 690, 723 [the decedent’s statement
that she feared defendant was relevant to whether the decedent would have
consented to the defendant’s entry into her residence where burglary and robbery
special circumstances were alleged].)
Here, as in Thompson, the issue of consent was raised by the charge of
forcible rape and the special circumstance allegation that the victim was murdered
during the commission of a rape, was put into dispute by defendant’s plea of not
guilty and remained in dispute until resolved. (People v. Waidla, supra, 22
Cal.4th at p. 723.) Jones’s testimony that Tynan had indicated to him she liked
muscular African-American men bore some relevance to whether she would have
consented to sexual relations with defendant. Contrary to defendant’s assertion,
that evidence need not have been dispositive on the issue of consent to have been
admissible on that point. (Evid. Code, § 210 [relevant evidence is evidence
“having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action”].) Defendant’s further claim that
the evidence was inadmissible to prove the truth of the statement—that Tynan
preferred muscular African-American men—is unpersuasive. “The evidence
admitted under section 1250 is hearsay; it describes a mental or physical
condition, intent, plan, or motive and is received for the truth of the matter stated.”
(People v. Ortiz (1995) 38 Cal.App.4th 377, 389, italics added.) Accordingly, we
conclude that the trial court did not abuse its discretion in admitting Jones’s
Even were we to conclude the trial court abused its discretion, we would
find the error harmless. Jones’s testimony was cumulative to the testimony of
Robert Bishop, who had been in a relationship with Erin Tynan. Bishop not only
testified, without objection, that Tynan preferred “muscular Black men,” he
acknowledged that he fit this category. Thus, even had Jones’s testimony been
excluded, the evidence concerning Tynan’s preferences was already before the
jury. Moreover, in view of the overwhelming evidence that defendant raped and
murdered Erin Tynan, admission of this fleeting reference to her predilections in
men could have made no difference to the verdict.
Rather thornier is resolution of defendant’s claim that the trial court abused
its discretion when, over the defendant’s objection, it admitted Anthony Brunson’s
testimony regarding his attempts to purchase the Jennings .22-handgun left in
Tynan’s possession by Robert Bishop. In the course of his testimony, Brunson
testified that Tynan told him she still had the gun.
To the extent Brunson’s testimony related to his own attempts to purchase
the gun, that testimony was not hearsay. (Cf. People v. Alvarez (1996) 14 Cal.4th
155, 185 [“Hearsay, of course, is evidence of an out-of-court statement offered by
its proponent to prove what it states”]; Evid. Code, § 1200.) However, his
testimony as to what Tynan told him was hearsay and does not appear to have
been admissible under any exception to the hearsay rule. Thus, his testimony of
her statements that she still possessed the gun should have been excluded.
The trial court’s failure to exclude the statements, however, is harmless.
There was substantial evidence that Tynan was in possession of the gun the night
she was killed, including testimony by Jones who left the gun with her in August,
that, in October, she told him she wanted to sell it and had a buyer; the testimony
of Robert Bishop that he saw a .22- or. 25-caliber semiautomatic in the closet of
her bedroom in the fall of 1990, and Detective Griego’s testimony that, in the
search of her apartment following her murder, he found a .22-caliber cartridge on
the top shelf of her bedroom closet, but no gun. There was also, of course, the
evidence that defendant was observed shortly after the murder in possession of a
similar gun and the testimony of William Blondet, the firearms examiner, that
there was a good likelihood the bullet fired at Gail Lebouef was from a Jennings
.22-caliber handgun. In view of this evidence, admission of Tynan’s hearsay
statements to Brunson was not prejudicial.
Finally, our conclusion that the admission of the testimony of Jones and
Brunson was either not error or, if error, not prejudicial, necessarily disposes of
defendant’s claim of cumulative prejudice.
4. CALJIC No. 2.03
In connection with the Dean murder, the jury was instructed, over
defendant’s objection, with CALJIC No. 2.03, as follows: “If you find that before
this trial the defendant made a willfully false or deliberately misleading statement
concerning any crime for which he is now being tried, you may consider that
statement as a circumstance tending to prove a consciousness of guilt. However,
such conduct is not sufficient by itself to prove guilt, and its weight and
significance, if any, are matters for your determination.”
Defendant contends that the instruction was impermissibly “partisan and
argumentative” and also authorized the jury to draw “irrational permissive
inferences” about defendant’s guilt. As the Attorney General observes, we have
consistently rejected such challenges to the instruction. (People v. Benavides
(2005) 35 Cal.4th 69, 100 [“The instruction does not improperly permit the jury to
draw irrational inferences, nor is it impermissibly argumentative”]; People v.
Nakahara (2003) 30 Cal.4th 705, 713; People v. Holloway (2004) 33 Cal.4th 96,
142 [“The inference of consciousness of guilt from willful falsehood or fabrication
or suppression of evidence is one supported by common sense, which many jurors
are likely to indulge even without an instruction”].) Defendant’s arguments
provide no persuasive reason to reconsider the soundness of these conclusions, and
we decline to do so.
5. CALJIC No. 2.71.5
In connection with the Dean murder, the jury was instructed with CALJIC
No. 2.71.5, regarding adoptive admissions. 7 The instruction reflects the adoptive
The instruction was as follows: “If you should find from the evidence that
there was an occasion when the defendant, 1) under conditions which reasonably
afforded him an opportunity to reply, 2) failed to make a denial or made false,
evasive or contradictory statements, in the face of an accusation, expressed
directly to him or in his presence, charging him with the crime for which such
defendant now is on trial or tending to connect him with its commission, and 3)
that he heard the accusation and understood its nature, then the circumstance of his
silence and conduct on that occasion may be considered against him as indicating
an admission that the accusation thus made was true. Evidence of such an
accusatory statement is not received for the purpose of proving its truth, but only
admission exception to the hearsay rule, under which: “Evidence of a statement
offered against a party is not made inadmissible by the hearsay rule if the
statement is one of which the party, with knowledge of the content thereof, has by
words or other conduct manifested his adoption or his belief in its truth.” (Evid.
Code, § 1221.) In this case, the prosecution sought the instruction based on
testimony by defendant’s former girlfriend, Sue Kennedy, that, in a telephone call
she had with defendant after his arrest, she asked him whether he had killed Curtis
James Dean for insurance proceeds and he remained silent. Defendant contends
that the instruction was improper because the prosecution failed to prove that
defendant heard Kennedy’s question or, if he did, that his silence could be
construed as an adoptive admission.
Preliminarily, there is a question of whether defendant has forfeited this
argument by failing to object to the instruction on the grounds he asserts on
appeal. As the Attorney General points out, defendant made no objection to the
admission of Kennedy’s testimony. Defendant responds that he did object to the
instruction and argues that this objection was sufficient to have preserved the issue
on appeal. Even if the objection to the instruction generally preserved the issue,
nowhere in defendant’s objection did he make one of the specific argument he
advances here – that the prosecution failed to demonstrate that defendant heard
Kennedy’s question. Thus, this argument is forfeited.8
as it supplies meaning to the silence and conduct of the accused in the face of it.
Unless you find that the defendant’s silence and conduct at the time indicated an
admission that the accusatory statement was true, you should entirely disregard the
statement.” [Brackets omitted.]
Even if he had not forfeited this part of his claim, it is meritless. The record
demonstrates that Kennedy and defendant were engaged in a conversation, albeit
by telephone, in which defendant fully participated by responding to Kennedy’s
other questions and admitting, for example, that he and Mark Redden had gone to
The specific basis of defense counsel’s objection was that defendant’s
silence in the face of Kennedy’s question “is not the usual circumstance in which I
always thought of adoptive admission. Usually thought of in something of a more
interrogative setting . . . .” Generously construing this statement to be, as
defendant contends, an objection that his silence in the face of Kennedy’s question
did not constitute an adoptive admission, we conclude the claim is without merit.
“For the adoptive admission to apply . . . a direct accusation in so many
words is not essential.” (People v. Fauber (1992) 2 Cal.4th 792, 852.) “To
warrant admissibility, it is sufficient that the evidence supports a reasonable
inference that an accusatory statement was made under circumstances affording a
fair opportunity to deny the accusation; whether defendant’s conduct actually
constituted an adoptive admission becomes a question for the jury to decide.”
(People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
Kennedy, defendant’s one-time girlfriend, and defendant were discussing
the circumstances of Curtis James Dean’s death. In the course of this conversation
defendant admitted that he and Mark Redden had gone to the Dean residence to
beat Dean, although he blamed Redden. Kennedy then asked defendant whether
he had killed Dean for the insurance. Defendant remained silent. Embedded in
Kennedy’s statement was an implied accusation that defendant had killed Dean.
The jury could have found that defendant’s failure to respond to the accusation,
particularly since he had just told Kennedy that Redden had killed Dean, was
tantamount to an admission. Defendant’s claim that the question was so complex
that defendant’s silence should be construed as bafflement is not convincing. In
the Dean residence and that Redden had beaten Dean. The jury could reasonably
have inferred from this exchange that defendant heard the question.
any event, that question was one for the jury to decide. We conclude that the
evidence supported the instruction and the instruction was properly given.
6. Felony Murder Instruction
instructions permitting him to be convicted of first
degree murder on a felony-murder theory violated his rights under the Eighth and
Fourteenth Amendments because he was charged only with second degree “malice
murder” under section 187 and not with first degree felony murder under section
189. Defendant contends the trial court lacked jurisdiction to try him for first
degree murder. He also appears to claim a lack of notice that he could be
convicted on a felony-murder theory. Defendant’s argument rests on the premise
that under People v. Dillon (1983) 34 Cal.3d 441, felony murder and premeditated
murder are separate crimes, and that Dillon implicitly overruled People v. Witt
(1915) 170 Cal. 104, in which we held that a defendant may be convicted of
felony murder even though the information charged only murder with malice. As
he concedes, we have rejected this claim.
“ ‘[W]e have long held that a pleading charging murder adequately notifies
a defendant of the possibility of conviction of first degree murder on a felony-
murder theory.’ [Citation.] Defendant mistakenly relies on People v. Dillon
(1983) 34 Cal.3d 441 [194 Cal.Rprt. 390, 668 P.2d 687], and in particular on a
statement in the plurality opinion that the . . . felony murder and murder with
express or implied malice, ‘are not the “same” crimes.’ [Citation.] As we have
since explained, however, this means only that the elements of the two kinds of
murder differ; there is but a single statutory offense of murder. [Citations.]
‘Felony murder and premeditated murder are not distinct crimes . . . .’ [Citation.]”
(People v. Silva (2001) 25 Cal.4th 345, 367.) In this connection, “numerous
appellate court decisions have rejected defendant’s jurisdictional argument.
[Citations.] . . . [S]ubsequent to Dillon, supra 34 Cal.3d 441, we have reaffirmed
the rule of People v. Witt, supra, 170 Cal. 104, that an accusatory pleading
charging a defendant with murder need not specify the theory of murder upon
which the prosecution intends to rely. Thus we have implicitly rejected the
argument that felony murder and murder with malice are separate crimes that must
be pleaded separately.” (People v. Hughes (2002) 27 Cal.4th 287, 369.)
It is true that “we have acknowledged that in some instances an information
charging murder without elaboration may not provide notice sufficient to afford
the due process of law guaranteed by the Fourteenth Amendment to the federal
Constitution.” (People v. Silva, supra, 25 Cal.4th at p. 368.) Here, however,
defendant was amply aware that the prosecution was proceeding on a felony-
murder theory. In connection with the Tynan murder, the information charged
defendant with rape as well as alleging rape-murder special circumstances, and the
prosecution introduced evidence supporting each crime charged and each special
circumstance alleged.9 “In any event, because defendant did not move to reopen
when he learned that the court would instruct the jury on felony murder, his claim
of insufficient notice is not preserved for appellate review.” (Ibid.)
7. Failure to Give Unanimity Instruction
As to the Tynan murder, the jury was instructed on first degree
premeditated murder and first degree felony murder. Defendant contends that the
Defendant’s argument appears to be directed primarily at his conviction of
the Tynan murder, though he also seems to be contending that he had insufficient
notice that the Dean murder would be tried as first degree murder based on the
“malice murder” allegations in the information. As to the Dean murder, however,
the information alleged financial gain, lying-in-wait, and multiple-murder special
circumstances (§ 190.2, subd. (a)(1), (3), (15)), and evidence was adduced in
support of each of those special circumstances, all of which were found to be true.
Therefore, his notice argument is no more persuasive in this context than with
respect to the Tynan murder.
trial court erred by failing to instruct the jury that it had to unanimously agree on
which type of murder defendant had committed before convicting him of first
degree murder. As defendant concedes, we have previously rejected this
argument. (E.g., People v. Benavides, supra, 35 Cal.4th at pp. 100-101 [“Where,
as here, the evidence shows only a single discrete crime, but leaves room for
disagreement as to exactly how that crime was committed, the jury need not
unanimously agree on the theory under which defendant is guilty. [Citation.] This
rule of state law passes federal constitutional muster”].) “We are not persuaded
otherwise by Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147
L.Ed.2d 435]. There, the United States Supreme Court found a constitutional
requirement that any fact that increases the maximum penalty for a crime, other
than a prior conviction, must be formally charged, submitted to the fact finder,
treated as a criminal element, and provided beyond a reasonable doubt. [Citation.]
We see nothing in Apprendi that would require a unanimous jury verdict as to the
particular theory justifying a finding of first degree murder. (See also Ring v.
Arizona (2002) 536 U.S. 584, 610 [122 S.Ct 2428, 2443-2444, 153 L.Ed. 566]
[requiring jury finding beyond reasonable doubt as to facts essential to
punishment].” (People v. Nakahara, supra, 30 Cal.4th at p. 712.) Defendant’s
criticisms of our prior decisions do not persuade us and we see no need to
8. Sufficiency of Definition of Rape in CALJIC No. 10.00
With respect to the allegation that defendant forcibly raped Erin Tynan, the
jury was instructed with CALJIC No. 10.00, which defines rape as “an act of
sexual intercourse with a female person who is not the spouse of the perpetrator
accomplished against such person’s will by means of force, violence, duress,
menace, or fear of immediate and unlawful bodily injury to such person.”
Defendant contends that the absence of a further definition of “sexual intercourse”
as vaginal penetration, as opposed to anal penetration, renders the instruction
We have previously rejected the argument that “ ‘sexual intercourse’ is a
technical term with various meanings and might be misunderstood when used in a
definition of rape.” (People v. Holt (1997) 15 Cal.4th 619, 676.) “[W]e have held
that ‘sexual intercourse’ has a common meaning in the context of rape, that no
technical elaboration is required, and that the term can only refer to vaginal
penetration or intercourse.” (People v. Stitely, supra, 35 Cal.4th at p. 554.)
Defendant attempts to distinguish Holt and Stitely on the grounds that, in those
cases, the jury was also instructed with the definition of sodomy. (People v.
Stitely, supra, 35 Cal.4th at p. 554 [“Also, no risk of confusion exists where the
court properly gives other instructions defining sodomy as anal penetration”];
People v. Holt, supra, 15 Cal.4th at p. 676.) Our conclusion that “sexual
intercourse” as used in CALJIC No. 10.00 has the common meaning of vaginal
penetration does not, however, depend on the fortuity of whether the defendant
also committed sodomy. In this case, moreover, as both counsel acknowledged in
closing arguments, the evidence relevant to defendant’s sexual assault on Erin
Tynan—defendant’s semen in her vagina—involved vaginal penetration; they
differed only as to whether the absence of injury to vaginal area supported the rape
9. DNA Evidence
Dr. Robin Cotton, the prosecution’s DNA expert, testified that in her
opinion DNA extracted from vaginal swabs taken from Erin Tynan matched a
Although the prosecution’s pathologist referred briefly to anal abrasion,
defendant was not charged with sodomy, nor did either side refer to this evidence
during closing argument.
sample of defendant’s DNA. She also provided two calculations regarding the
frequency of the matched DNA profile in the general population and in the
Caucasian population; for the former, the frequency was 1 in 53,000 and for the
latter, 1 in 5.7 million. Defendant contends that admission of Dr. Cotton’s
testimony violated his constitutional rights on two distinct grounds. First, he
asserts that her testimony violated his Sixth Amendment confrontation right as
construed by the Supreme Court in Crawford v. Washington (2004) 541 U.S. 36,
because her opinion regarding the match between defendant’s DNA and DNA
extracted from the vaginal swabs was based on testing that she did not personally
conduct. Second, citing People v. Wilson (2006) 38 Cal.4th 1237, defendant
argues that Dr. Cotton’s use of a population frequency calculation for Caucasians
alone violated his due process rights by improperly suggesting to the jury that the
perpetrator of the Tynan rape and murder was a member of defendant’s racial
group. We reject both arguments.
Dr. Cotton is the laboratory director for Cellmark, a private, for-profit
company that performs DNA testing in paternity and criminal cases. Cellmark
accepts criminal cases from both the prosecution and defense; its analysts conduct
the testing and provide the results to those who requested them. Cellmark was
accredited by the American Society of Crime Laboratory Directors after an
inspection and review process that included examination of Cellmark’s quality
Dr. Cotton has a B.S. and M.S. in biology and a Ph.D. in molecular biology
and biochemistry. DNA had been her field of research for the 15 years preceding
her testimony. As Cellmark’s laboratory director, Dr. Cotton oversees testing and
supervises the six analysts who conduct the testing. Additionally, at the time of
defendant’s trial, she had testified as a DNA expert about 20 times in California as
well as in other jurisdictions.
Dr. Cotton’s testimony covered several areas. She testified about the
characteristics of DNA and how, by extraction and testing of DNA, it is possible
to generate a genetic profile for each individual and match a known sample to a
sample the source of which is unknown. She explained in detail the procedure by
which DNA is extracted and the samples prepared for comparison, using a process
called restriction fragment length polymorphism (RFLP).11 Dr. Cotton testified
that DNA extraction is not a difficult procedure and the process by which the
samples are prepared at Cellmark follows a protocol that lays out the order of each
step in the analysis. Cellmark’s analysts may not deviate from the protocol
without permission. According to Dr. Cotton, the protocol is like a recipe—“You
know, first you do this and then you do this and then you heat it at 37 degrees for a
half hour and then you do this other thing”—and, at each point in the procedure,
the analyst is required to fill out a form and also required to keep handwritten
Because defendant does not challenge the validity of RFLP analysis, it is
unnecessary to discuss it in any detail. Dr. Cotton’s testimony was largely
consistent with the description of that process set forth in People v. Venegas
(1998) 18 Cal.4th 47. We explained: “ ‘There are three discrete steps in [RFLP]
analysis . . . : (1) processing of DNA from the suspect and the crime scene to
produce X-ray films [autorads] which indicate the lengths of the polymorphic
fragments; (2) examination of the [autorads] to determine whether any sets of
fragments match; and (3) if there is a match, determination of the match’s
statistical significance.” (Id. at p. 60, quoting People v. Barney (1992) 8
Cal.App.4th 798, 806.) As we further explained the first step of RFLP analysis—
processing DNA samples and generating autorads—involves seven distinct
substeps: “extraction, restriction, electrophoresis, denaturing, ‘Southern transfer,’
hybridization, and autoradiography.” (Ibid.) Again, citing Barney, we provided
descriptions of these substeps (id. at pp. 60-62), which the reader may consult.
What is important for purposes of defendant’s present claim is that Paula Yates, a
biologist with Cellmark, rather than Dr. Cotton, performed the laboratory work
required for completing the first step.
notes recording his or her activity. This record is sufficiently complete that Dr.
Cotton or another analyst could reconstruct what the analyst who processed the
samples did at every step.
Dr. Cotton also testified about the significance of a match in terms of the
frequency of a particular DNA profile in a given population. She explained: “If
two profiles are the same, then it means the known person can’t be excluded as
having donated the sample from which the DNA profile in the evidence was
obtained . . . . [¶] . . . Since each of the bands in the profile is a genetic trait, you
can say, well, how often would another person have this same combination in the
same way . . . . [¶] But rather than just saying it’s generally very small or the
patterns are rare, you can do a population survey . . . . [¶] . . . So doing a survey
and then comparing the DNA profile that matches—of a known [sample] that
matches an evidence [sample], you can ask the question how often would I expect
to see this particular DNA profile in a Caucasian population or an African-
American population or a[n] Hispanic population? And by that exercise give
information to others about whether this particular grouping of genetic traits is a
common event or a rare event.”
Dr. Cotton testified that, for purposes of determining the frequency of a
particular DNA profile in a given population, Cellmark had developed DNA
databases for three major racial and ethnic groups—Caucasian, African-American
and Hispanic—using blood samples obtained through various sources. Cellmark
ordinarily calculates the frequency of a genetic profile for each of the three groups.
Dr. Cotton testified that there is an alternative calculation called the “interim
ceiling method.” According to Dr. Cotton, the interim ceiling method does not
calculate frequencies by ethnic or racial groups but “just survey[s] each group, and
whatever frequency is the largest, use[s] that one in the calculation. So instead of
having three calculations, you are only going to have one and you are going to
pick the figure that you use by looking across all three racial groups . . . and
picking the figure that’s the largest.”
Finally, Dr. Cotton testified about the results of DNA testing obtained from
comparisons of DNA samples provided by defendant and other individuals who
had known Erin Tynan, and DNA samples extracted from a bed sheet and vaginal
swabs taken from the victim’s bed and from the victim herself. Dr. Cotton
testified that the analysis of the samples was performed by Paula Yates, one of
Cellmark’s biologists. Dr. Cotton reviewed the forms Yates filled out at various
points in the RLFP protocol and her handwritten notes, as well as all the other data
in the case, including the autorad. (See ante, fn 1.) She and Yates cosigned the
DNA report in this case, as well as two followup letters to the San Bernardino
Dr. Cotton testified that the evidence samples, including a blood sample
from defendant and the vaginal swabs, were received intact by Cellmark. She
testified further that, based on her review of Yates’s notes, in her opinion the DNA
extraction was conducted according to protocol. Viewing the genetic profiles
generated by Yates, she testified that, in her opinion, DNA extracted from the
bedsheet matched a DNA sample provided by Eugene Knox. Further, DNA
extracted from the vaginal swabs matched DNA samples from Erin Tynan and
from defendant. Using the product rule, she testified that the frequency of the
DNA profile match between Eugene Knox’s DNA and DNA obtained from the
bed sheet in the African-American population was 1 in 700,000. With respect to
the DNA profile match between defendant’s DNA and the DNA from the vaginal
swabs, she provided frequency calculations using both the interim ceiling method
and the product rule; under the former, the frequency of the profile in the general
population was 1 in 53,000, under the latter, the frequency of the profile among
Caucasians was 1 in 5.7 million.
b. Crawford claim
At trial, defendant objected to Dr. Cotton’s testimony about the DNA
analysis that resulted in the match between defendant’s DNA and DNA extracted
from the vaginal swabs on the grounds that Cotton “didn’t actually run the tests
herself.” He argued that the test results were inadmissible unless Paula Yates
testified. The trial court stated that the results were a business record but also said
that, even if Yates’s analysis was “hearsay,” Dr. Cotton could nonetheless rely on
it for purposes of formulating her opinion as a DNA expert. On appeal, citing
Crawford v. Washington, supra, 541 U.S. 36 (Crawford), defendant renews his
claim that Dr. Cotton’s testimony violated his Sixth Amendment right of
Crawford, supra, 541 U.S. 36, “the Supreme Court had held that an
unavailable witness’s out-of-court statement against a criminal defendant could be
admitted consistent with the [Sixth Amendment’s] confrontation clause if it bore
‘adequate “indicia of reliability.” ’ [Citation.] To qualify under that test, evidence
had either to fall within a ‘firmly rooted hearsay exception’ or bear ‘particularized
guarantees of trustworthiness.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th
646, 711, fn. 25, quoting Ohio v. Roberts (1980) 448 U.S. 56, 66.) Crawford
abandoned this approach to such statements, however, and held that testimonial
out-of-court statements offered against a criminal defendant are rendered
inadmissible by the confrontation clause unless the witness is unavailable at trial
and the defendant has a prior opportunity for cross-examination. (Crawford,
supra, 541 U.S. at p. 59.)
Crawford, the crucial determination about whether the admission of
an out-of-court statement violates the confrontation clause is whether the out-of-
court statement is testimonial or nontestimonial. “[T]he court reasoned [that] the
clause’s express reference to ‘witnesses’ reflects its focus on those who ‘ “bear
testimony,” ’ which is ‘ “[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact.” ’ (Crawford, supra, 541 U.S. 36,
51, quoting Webster, An American Dict. of the English Language (1828).) ‘An
accuser who makes a formal statement to government officers,’ said the court,
‘bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.’ (541 U.S. at p. 51.) Thus, the court explained, the
constitutional text reflects an ‘especially acute concern with a specific type of out-
of-court statement.’ (Ibid.)” (People v. Cage, (2007) 40 Cal.4th 965, 977-978.)
On the other hand, Crawford made it clear that “not all hearsay implicates
the Sixth Amendment’s core concerns,” (Crawford, supra, 541 U.S. at p. 51) and,
in response to a point made in the dissent, acknowledged that certain exceptions to
the rule against hearsay in existence at the time the confrontation clause was
originally adopted fell outside the purview of the clause because “there is scant
evidence that the exceptions were invoked to admit testimonial statements against
the accused in a criminal case. Most of the hearsay exceptions concerned
statements that by their nature were not testimonial—for example, business
records or statements in furtherance of a conspiracy.” (Id. at p. 55, italics & fn.
The court in Crawford declined to definitively state what constitutes a
‘testimonial’ statement for purposes of its discussion but observed: “Various
formulations of this core class of ‘testimonial’ statements exist: ‘ex parte in-court
testimony or its functional equivalent—that is, material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to cross-
examine, or similar pretrial statements that declarants would reasonably expect to
be used prosecutorially,’ [citation]; ‘extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony,
or confessions,’ [citation]; ‘statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial [citation].” (Crawford, supra, 541 U.S. at
pp. 51-52.) Moreover, the court said, “[s]ome statements qualify under any
definition—for example, ex parte testimony at a preliminary hearing,” (ibid), and
“at a minimum, to prior testimony at a preliminary hearing, before a grand jury, or
at a former trial; and to police interrogations. These are the modern practices with
closest kinship to the abuses at which the Confrontation Clause was directed.” (Id.
at p. 68.)
Defendant argues that the DNA report that was the basis of Dr. Cotton’s
testimony was a testimonial statement because it was a statement “made under
circumstances that would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” (Crawford, supra, 541 U.S.
at p. 52.)
We have not yet had occasion to decide whether the admission of scientific
evidence, like laboratory reports, constitutes a testimonial statement that is
inadmissible unless the person who prepared the report testifies or Crawford’s
conditions—unavailability and a prior opportunity for cross-examination—are
met. Courts that have addressed this issue disagree as to the answer.
In the immediate aftermath of Crawford, some courts adopted a bright line
test based on the language in that decision about the availability of the out-of-court
statements for later trial and concluded that this is the defining characteristic of
whether such statements are testimonial. Thus, these courts concluded that
because such evidence—fingerprint analysis, autopsy reports, serology reports,
drug analysis reports, DNA reports—is prepared for possible use at a criminal trial
it is testimonial and inadmissible unless the conditions for its admission, outlined
in Crawford, have been met.
Typical of this line of cases is State v. Caulfield (Minn. 2006) 722 N.W.2d
304. In Caulfield, the Minnesota Supreme Court held that a laboratory (BCA)
report that established a substance seized from defendant was cocaine was
testimonial. “We have said that the critical determinative factor in assessing
whether a statement is testimonial is whether it was prepared for litigation.
[Citations.] The BCA report was clearly prepared for litigation . . . . The BCA
report was introduced by the state at trial for the purpose of proving beyond a
reasonable doubt that the substance was cocaine.” (Id., at p. 309; Roberts v.
United States (D.C. 2007) 916 A.2d 922 [admission of out-of-court statements of
FBI forensic scientists via testimony of DNA expert violated the confrontation
clause as construed by Crawford, but any error harmless]; People v. Lonsby
(Mich.Ct.App. 2005) 707 N.W.2d 610, 619 [serologist report was inadmissible
because the author “would reasonably expect [that it] would be used in a
prosecutorial manner and at trial”]; Las Vegas v. Walsh (Nev. 2005) 124 P.3d 203,
208 [Nurse’s affidavit that she drew defendant’s blood for a blood-alcohol test was
“made for use at a later trial or legal proceeding. Thus, [its] admission, in lieu of
live testimony, would violate the Confrontation Clause”]; People v. Rogers (N.Y.
App.Div. 2004) 8 A.D.2d 888, 891 [laboratory report giving results of testing of
victim’s blood was improperly admitted as a business record: “Because the test
was initiated by the prosecution and generated by the desire to discover evidence
against defendant, the results were testimonial”]; People v. Hernandez (N.Y. Sup.
Ct. 2005) 794 N.Y.S.2d 788, 789 [latent print report inadmissible where the
officer who prepared the report was unavailable because the fingerprints “were
taken with the ultimate goal of apprehending and successfully prosecuting a
defendant”]; State v. Crager (Ohio Ct.App. 2005) 844 N.E.2d 390, 398-399
[because a DNA report was testimonial and the analyst who prepared it did not
testify, allowing a second analyst to testify to the contents of the report violated
defendant’s Sixth Amendment right to confrontation]; State v. Miller (Or.Ct.App.
2006) 144 P.3d 1052, 1058 [a laboratory report that established the presence of
drugs in defendant’s urine and a pipe seized from his person was testimonial
because it was “clearly intended to be used in a criminal prosecution to prove past
events—the presence of controlled substances in defendant’s urine at a specific
time in the past and the presence of drug residue on a glass smoking device”].)
By contrast, a number of other courts have held that scientific evidence is
not testimonial, even though it may have been prepared for possible use at trial.
Some have done so on the grounds that the admission of such evidence does not
implicate the abuses at which, according to Crawford, the confrontation clause
was directed. Additionally, other courts have relied on the language in Crawford
indicating that business records might fall outside the purview of confrontation
clause concerns and held that such evidence is admissible as business or public
records. Some courts also cite the practical difficulties that would ensue were
Crawford applied to this type of evidence. These more nuanced readings of
Crawford reject those readings that “focus too narrowly on the question of
whether a document may be used in litigation. This was but one of the several
considerations that Crawford identified as bearing on whether evidence is
testimonial [and] [n]one of these factors was deemed dispositive.” (People v. So
Young Kim (Ill.App.Ct. 2006) 859 N.E.2d 92, 94 [certification of Breathalyzer
machine used to determine blood-alcohol content not testimonial].
People v. Johnson (2004) 121 Cal.App.4th 1409, the trial court admitted
a laboratory report at defendant’s probation revocation hearing identifying as rock
cocaine a substance seized from defendant. On appeal, defendant argued the
admission of the drug report violated his Sixth Amendment rights as construed by
Crawford. The Court of Appeal concluded that, because “[p]robation revocation
proceedings are not ‘criminal prosecutions’ to which the Sixth Amendment applies
. . . , Crawford’s interpretation of the Sixth Amendment does not govern probation
revocation proceedings.” (Id. at p. 1411.) Noting, however, that “Sixth
Amendment cases . . . may provide helpful examples in determining the scope of
the more limited right of confrontation held by probationers under the due process
clause,” the court addressed and rejected defendant’s Crawford claim. (Id. at p.
1412.) “. . . Johnson misapprehends Crawford’s discussion of what amounts to
‘testimonial’ hearsay. A laboratory report does not ‘bear testimony,’ or function
as the equivalent of in-court testimony. If the preparer had appeared to testify at
Johnson’s hearing, he or she would merely have authenticated the document. In
[People v. Arreola [(1994) 7 Cal.4th 1144], our Supreme Court explained: ‘There
is an evident distinction between a transcript of former live testimony and the type
of traditional “documentary” evidence involved in [People v. Maki (1985) 39
Cal.3d 707] that does not have, as its source, live testimony. [Citation.] . . . [T]he
need for confrontation is particularly important where the evidence is testimonial,
because of the opportunity for observation of the witness’s demeanor. [Citation.]
Generally, the witness’s demeanor is not a significant factor in evaluating
foundational testimony relating to the admission of evidence such as laboratory
reports, invoices, or receipts, where often the purpose of this testimony simply is
to authenticate the documentary material, and where the author, signator, or
custodian of the document ordinarily would be unable to recall from actual
memory information relating to the specific contents of the writing and would rely
instead upon the record of his or her own action.’ (Arreola, supra, 7 Cal.4th at
p. 1157.)” (People v. Johnson, supra, 121 Cal.App.4th at pp. 1412-1413.)
Commonwealth v. Verde (Mass. 2005) 827 N.E.2d 701, the Supreme
Judicial Court of Massachusetts similarly held that certificates of chemical
analysis identifying as cocaine a substance seized from defendant were not
testimonial. “Certificates of chemical analysis are neither discretionary nor based
on opinion; rather, they merely state the results of a well-recognized scientific test
determining the composition and quantity of a substance. . . . Accordingly, these
drug certificates are well within the public records exception to the confrontation
clause.” (Id., at p. 705, fn. omitted.) Moreover, this evidence did not “implicate
‘the principal evil at which the Confrontation Clause was directed . . . particularly
its use of ex parte examinations as evidence of the accused.’ Crawford, supra,
[541 U.S.] at 50. The documentary evidence at issue here has very little kinship to
the type of hearsay the confrontation clause was intended to exclude, absent an
opportunity for cross-examination. [Citation.] Rather, it is akin to a business or
official record, which the Court stated was not testimonial in nature.”
(Commonwealth v. Verde, supra, 827 N.E.2d at p. 706.)
State v. Forte (N.C. 2006) 629 S.E.2d 137, the Supreme Court of North
Carolina, in holding that a serology report was properly admitted notwithstanding
the unavailability of the analyst, also differentiated this type of evidence from that
which the Crawford court identified as the main concern of the Sixth Amendment.
“Under the Supreme Court’s analysis, the reports at issue here are not testimonial.
They do not fall into any of the categories that the Supreme Court defined as
unquestionably testimonial. These unsworn reports, containing the results of
Agent Spittle’s objective analysis of the evidence, along with routine chain of
custody information, do not bear witness against defendant. [Citation.] Instead,
they are neutral, having the power to exonerate as well as convict. Although we
acknowledge that the reports were prepared with the understanding that eventual
use in court was possible or even probable, they were not prepared exclusively for
trial and Agent Spittle has no interest in the outcome of any trial in which the
records might be used.” (Id., at p. 143.)
State v. Lackey (Kan. 2005) 120 P.3d 332, the Kansas Supreme Court,
joining those jurisdictions that have concluded that an autopsy report is not
testimonial under Crawford, cited the practical considerations that militated
against the contrary conclusion. “We believe the reason why these cases have not
adopted the arguments and reasoning set forth by defendant is that it would have
the effect of requiring the pathologist who performed the autopsy to testify in
every criminal proceeding. If, as in this case, the medical examiner is deceased or
otherwise unavailable, the State would be precluded from using the autopsy report
in presenting its case, which could preclude the prosecution of a homicide case.
We view this as a harsh and unnecessary result in light of the fact that autopsy
reports generally make routine and descriptive observations of the physical body
in an environment where the medical examiner would have little incentive to
fabricate the result.” (Id. at pp. 351-352; see also People v. Durio (N.Y. Sup. Ct.
2005) 794 N.Y.S.2d 863, 869 [“[C]ourts cannot ignore the practical implications
that would follow from treating autopsy reports as inadmissible testimonial
hearsay in a homicide case . . . . The passage of time can easily lead to the
unavailability of the examiner who prepared the autopsy report. Moreover,
medical examiners who regularly perform hundreds of autopsies are unlikely to
have any independent recollection of the autopsy at issue in a particular case and
in testifying invariably rely entirely on the autopsy report . . . . Certainly it would
be against society’s interests to permit the unavailability of the medical examiner
who prepared the report to preclude the prosecution of a homicide case”].)
State v. Craig (Ohio 2006) 853 N.E.2d 621, the Supreme Court of Ohio
also concluded that autopsy reports are not testimonial under Crawford but on the
grounds that such reports are “ ‘quintessential business records.’ The essence of
the business record hearsay exception contemplated in Crawford is that such
records or statements are not testimonial in nature because they are prepared in the
ordinary course of regularly conducted business and are ‘by their nature’ not
prepared for litigation.” (Id. at p. 638.) Along these lines, in People v. Brown
(N.Y. Sup.Ct. 2005) 801 N.Y.S.2d 709, the trial court denied a new trial motion
based on the claim that admission of DNA laboratory reports violated the
confrontation clause as construed by Crawford. “The notes and records of the
laboratory technicians who tested the DNA samples in this case were not made for
investigative or prosecutorial purposes but rather were made for the routine
purpose of ensuring the accuracy of the testing done in the laboratory and as a
foundation for formulating the DNA profile. [¶] . . . [T]he notes of the many
laboratory personnel who conducted the four steps of DNA profiling over several
days were made during a routine, non-adversarial process meant to ensure accurate
analysis and not specifically prepared for trial. Because DNA testing requires
multiple steps done by multiple technicians over multiple days, all of the steps in
the process must be documented for the benefit of supervisors and technicians who
perform subsequent testing functions.” (Id. at pp. 711-712.)
The Supreme Court shed some further light on the question of what
constitutes a “testimonial” out-of-court statement in Davis v. Washington (2006)
___U.S. ___ [165 L.Ed.2d 224, 126 S.Ct. 2266] (Davis) and introduced another
factor to consider on this question, pertaining to the circumstances under which
the statement was made.
Davis consolidated two cases, Davis v. Washington, No. 05-5224, and
Hammon v. Indiana, No. 05-5705. Both cases involved responses by the victim of
domestic violence to police inquiries. In Davis, the prosecution introduced a 911
tape in which the victim, Michelle McCottry, described the attack on her by
defendant to the 911 operator as it was occurring and then, after he left, answered
other questions. “The police arrived within four minutes of the 911 call and
observed McCottry's shaken state, the ‘fresh injuries on her forearm and her face,’
and her ‘frantic efforts to gather her belongings and her children so they could
leave the residence.’ ” (Davis, supra, ___U.S. at p. ___ [126 S.Ct. at p. 2271.].)
In Hammon, police responded to a domestic disturbance call and found the
victim, Amy Hammon, alone on the front porch. She appeared “ ‘ “somewhat
frightened” ’ ” but told police that “ ‘ “nothing was the matter.” ’ ” (Davis, supra,
___ U.S. at p. ___ [126 S.Ct. at p. 2272.].) Inside the house, Herschel Hammon
told police there had been an argument, but it had never become physical, and it
was over. Over his objection, police separated Amy from Herschel and questioned
her. Based on her responses, police had her fill out and sign a battery affidavit in
which she recounted that Herschel had physically assaulted her. Her affidavit was
subsequently admitted against Herschel in his trial for domestic battery and
probation violation as was the testimony of the officer who had questioned her.
(Id. at pp. 2272-2273.)
The question before the Supreme Court was “when statements made to law
enforcement personnel during a 911 call or at a crime scene are ‘testimonial’ and
thus subject to the requirements of the Sixth Amendment’s Confrontation Clause.”
(Davis, supra, ___ U.S. at p. ___ [126 S.Ct. at p. 2270]). In this connection, the
Supreme Court made clear that the confrontation clause applies only to testimonial
hearsay statements and not to such statements that are nontestimonial. (Id. at p.
2274 [“A limitation so clearly reflected in the text of the constitutional provision
must fairly be said to mark out not merely its ‘core,’ but its perimeter”].)
On the specific question before it, the court concluded that Michelle
McCottry’s initial statements in response to questioning by the 911 operator were
not testimonial while the statements made by Ann Hammon were. The general
principle enunciated by the court was as follows: “Statements are nontestimonial
when made in the course of police interrogation objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” (Davis, supra, ___ U.S. at p. ___ [126 S.Ct. at pp. 2273-
2274], fn. omitted.)
In its opinion, the court emphasized the contemporaneity of McCottry’s
statement: “In Davis, McCottry was speaking about events as they were actually
happening, rather than ‘describ[ing] past events [citation].” (Davis, supra, ___
U.S. at p. ___ [126 S.Ct. at p. 2276].) By contrast, “[i]t is entirely clear that from
the circumstances that the interrogation [of Ann Hammon] was part of an
investigation into possibly criminal past conduct — as, indeed, the testifying
officer expressly acknowledged.” (Id. at p. ___ [ 126 S. Ct. at p. 2278].) The
statements of both Hammons “deliberately recounted, in response to police
questioning, how potentially criminal past events began and progressed. And both
took place some time after the events described were over. Such statements under
official investigation are an obvious substitute for live testimony, because they do
precisely what a witness does on direct examination; they are inherently
testimonial.” (Ibid., fn. & italics omitted; People v. Cage, supra, 40 Cal.4th at p.
987 [among the principles to be derived from Davis are “the statement must have
been given and taken primarily for the purpose ascribed to testimony—to establish
or prove some past fact for possible use in a criminal trial,” and, “statements
elicited by law enforcement officials are not testimonial if the primary purpose in
giving and receiving them is to deal with a contemporaneous emergency, rather
than to produce evidence about past events for possible use at a criminal trial”
While Davis, like Crawford, does not directly address the question of
whether scientific evidence like a DNA report is testimonial, courts on both sides
of the question have nonetheless found support in Davis for their position.
(Compare United States v. Feliz (2d Cir. 2006) 467 F.3d 227 [autopsy report is a
nontestimonial business record “because a business record is fundamentally
inconsistent with what the Supreme Court has suggested (in Crawford and Davis)
comprise the defining characteristics of testimonial evidence”]; United States v.
Ellis (2006) 460 F.3d 920, 926-927 [medical records establishing the presence of
methamphetamine in defendant’s system were nontestimonial business records
became at the time the observations were made the medical professionals “like the
declarant reporting an emergency in Davis — were ‘not acting as . . . witness[es]
and were ‘not testifying’”]; with State v. March (Mo. 2007) __ S.W.3d __(2007
WL 826156) [laboratory report identified substance possessed by defendant as
cocaine base was testimonial under “the definitions of ‘testimony’ and
‘testimonial’ in Crawford as well as the ‘primary purpose’ test in Davis”]; State v.
Kent (N.J. Super.Ct.App. Div. 2007) 918 A.2d 626, 637 [“the ‘primary purpose’ of
the blood certificate was to . . . preserve evidence for a future anticipated DWI
prosecution”]; State v. Miller, supra, 144 P.3d 1052 [lab reports indicating
methamphetamine in defendant’s urine and a glass smoking device were requested
by police “for the purpose of establishing or proving a fact in issue in this criminal
While we have found no single analysis of the applicability of Crawford
and Davis to the kind of scientific evidence at issue in this case to be entirely
persuasive, we are nonetheless more persuaded by those cases concluding that
such evidence is not testimonial, based on our own interpretation of Crawford and
Davis. For our purposes in this case, involving the admission of a DNA report,
what we extract from those decisions is that a statement is testimonial if (1) it is
made to a law enforcement officer or by or to a law enforcement agent and (2)
describes a past fact related to criminal activity for (3) possible use at a later trial.
Conversely, a statement that does not meet all three criteria is not testimonial.
Regarding the first point, as the court noted in Crawford it is the
“involvement of government officers in the production of testimonial evidence”
that implicates confrontation clause concerns. (Crawford, supra, 541 U.S. at
p. 53.) In this respect, we use the term agent not only to designate law
enforcement officers but those in an agency relationship with law enforcement.
Regarding the third point, while the possible use of such statements at a later trial
remains an important consideration, as we noted in our Cage decision, Davis “now
confirms that the proper focus [about whether an out-of-court statement is
testimonial] is not on the mere reasonable chance that an out-of-court statement
might later be used in a criminal trial.” (People v. Cage, supra, 40 Cal.4th at p.
984, fn. 14 [2007 Cal. Lexis 3522, 31, fn. 14]; United States v. Ellis, supra, 460
F.3d at p. 926 [“A reasonable person reporting a domestic disturbance, which is
what [Michelle McCottry] in Davis was doing, will be aware that the result is the
arrest and possible prosecution of the perpetrator. [Citation.] So it cannot be that
a statement is testimonial in every case where a declarant reasonably expects that
it might be used prosecutorially”].)
It is the second point, the distinction drawn in Davis between the
circumstances under which Michelle McCottry’s 911 statement was made — a
contemporaneous description of an unfolding event — and the questioning of Ann
Hammon — the purpose of which was to “deliberately recount, in response to
police questioning, how potentially criminal past events began and progressed” —
that is critical here. (Davis, supra, at p. ___ [ 126 S. Ct. at p. 2278].) There is no
question that the DNA report was requested by a police agency. Even if the
employees of Cellmark are not themselves members of law enforcement, they
were paid to do work as part of a government investigation; furthermore, it could
reasonably have been anticipated that the report might be used at a later criminal
trial. Yates’s observations, however, constitute a contemporaneous recordation of
observable events rather than the documentation of past events. That is, she
recorded her observations regarding the receipt of the DNA samples, her
preparation of the samples for analysis, and the results of that analysis as she was
actually performing those tasks. “Therefore, when [she] made these observations,
[she] — like the declarant reporting an emergency in Davis — [was] ‘ not acting
as [a] witness ; and [was] ‘not testifying.’ ” (United States v. Ellis, supra, 460
F.3d at pp. 926-927.)
We find support for this distinction even in the post-Crawford but
pre-Davis decisions that concluded scientific evidence memorialized in routine
forensic reports is not testimonial. A common theme that unites these decisions is
that the circumstances in which these reports are generated involve the
contemporaneous recordation of observable events. (See, e.g., Commonwealth v.
Verde, supra, 827 N.E.2d at p. 705 [“Certificates of chemical analysis . . . merely
state the results of a well-recognized scientific test determining the composition
and quantity of a substance]; State v. Lackey, supra, 120 P.3d at p. 352 [Preclusion
of autopsy report because of unavailability of medical examiner would be “ a
harsh and unnecessary result in light of the fact that autopsy reports generally
make routine and descriptive observations of the physical body . . .”]; People v.
Brown, supra, 801 N.Y.S.2d at p. p. 711 [“The notes and records of the laboratory
technicians who tested the DNA samples in this case . . . were made for the routine
purpose of ensuring the accuracy of the testing done in the laboratory and as a
foundation for formulating the DNA profile”].) The post-Davis federal cases that
have held such statements are not testimonial because they are business records
are consistent with this theme since under the Federal Rules of Evidence a
business record is defined as “ ‘[a] memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made
at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity, and if
it was the regular practice of that business activity to make the memorandum,
report, record or data compilation.’ ” (United States v. Feliz, supra, 467 F.3d at p.
234, quoting Fed. Rules Evid, rule 803(6), 28 U.S.C.; United States v. Ellis, supra,
460 F.3d at pp. 926-927.)12
Thus, we find unpersuasive those cases, cited above, holding that under
Davis various types of forensic evidence in the form of laboratory reports were
testimonial because their primary purpose was to establish a fact at trial regarding
the defendant’s guilt of the charged crime. (State v. March, supra, __ S.W.3d
__(2007 WL 826156); State v. Kent, supra, 918 A.2d 626; State v. Miller, supra,
144 P.3d 1052.) This reading of Davis equates a testimonial statement with any
statement that it might reasonably be anticipated will be used at trial, an approach
that, as we noted in Cage, Davis rejects. (People v. Cage, supra, 40 Cal.4th at p.
984, fn. 14.) In our view, under Davis, determining whether a statement is
testimonial requires us to consider the circumstances under which the statement
was made. As we read Davis, the crucial point is whether the statement represents
the contemporaneous recordation of observable events. But, as we have also
observed, even before Davis a number of courts had pointed to the circumstances
under which statements were made in laboratory reports and other types of
forensic evidence as a reason to find those statements nontestimonial under
12 We do not hold that simply because a document qualifies as a business record
that it is necessarily nontestimonial since conceivably some such document could
contain historical facts.
Crawford, notwithstanding their possible use at trial. Those same circumstances
are also present here.
For example, Yates’s report and notes were generated as part of a
standardized scientific protocol that she conducted pursuant to her employment at
Cellmark. While the prosecutor undoubtedly hired Cellmark in the hope of
obtaining evidence against defendant, Yates conducted her analysis, and made her
notes and report, as part of her job, not in order to incriminate defendant.
Moreover, to the extent Yates’s notes, forms and report merely recount the
procedures she used to analyze the DNA samples, they are not themselves
accusatory, as DNA analysis can lead to either incriminatory or exculpatory
results. Finally, the accusatory opinions in this case—that defendant’s DNA
matched that taken from the victim’s vagina and that such a result was very
unlikely unless defendant was the donor—were reached and conveyed not through
the nontestifying technician’s laboratory notes and report, but by the testifying
witness, Dr. Cotton.
Thus, like the DNA analysis records in People v. Brown, supra, 801
N.Y.S.2d 709, Yates’s notes were made “during a routine, non-adversarial process
meant to ensure accurate analysis.” (Id. at p. 712; see also Rollins v. State
(Md.Ct.Spec.App. 2005) 866 A.2d 926, 954 [“findings in an autopsy report of the
physical condition of a decedent, which are routine, descriptive and not
analytical,” held nontestimonial].) In simply following Cellmark’s protocol of
noting carefully each step of the DNA analysis, recording what she did with each
sample received, Yates did not “bear witness” against defendant. (State v. Forte,
supra, 629 S.E.2d at p. 143.) Records of laboratory protocols followed and the
resulting raw data acquired are not accusatory. “Instead, they are neutral, having
the power to exonerate as well as convict.” (Ibid.)
Accordingly, even under this earlier authority, the circumstances under
which Yates’s report and notes were generated, and not whether they would be
available for use at trial, would have been determinative of whether they were
testimonial, and pursuant to this authority they would not have been. Davis
confirms that the critical inquiry is not whether it might be reasonably anticipated
that a statement will be used at trial but the circumstances under which the
statement was made. We conclude therefore that the DNA report was not
testimonial for purposes of Crawford and Davis.
c. Harmless Error
Even if Dr. Cotton’s reliance on Yates’s report violated defendant’s Sixth
Amendment rights as construed by Crawford, any error was harmless.
Confrontation clause violations are subject to federal harmless-error analysis
under Chapman v. California (1967) 386 U.S. 18, 24. (Delaware v. Van Arsdall
(1986) 475 U.S. 673, 681.) “Since Chapman, we have repeatedly reaffirmed the
principle that an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt.” (Ibid.) The harmless error
inquiry asks: “Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?” (Neder v. United States (1999) 527
U.S. 1, 18.) Here the answer is yes.
Hairs found embedded in the broken nails of the victim were consistent
with defendant’s hair. The only item missing from the victim’s apartment was the
Jennings .22-caliber handgun, which defendant had sold to Tynan’s boyfriend,
William Jones, and which defendant was aware was in Tynan’s possession.
Defendant had also expressed a sexual interest in the victim during a conversation
with Jones. After Tynan’s murder, defendant was then seen cleaning a gun similar
to the Jennings handgun. Defendant spoke of details of the murder that had not
been made public and remarked that the victim “had gotten what she deserved.” A
ballistics expert testified that there was a good likelihood that the gun defendant
used in the attempted murder of Lebouef was a Jennings .22-caliber handgun
similar to the one taken from Tynan’s apartment. Defendant told Winstein, his
accomplice in the Lebouef attempted murder, that he killed Tynan. In light of this
evidence, we conclude that any error in the admission of DNA evidence was
harmless beyond a reasonable doubt.
Defendant also contends that the error infected the remaining counts against
him and requires their reversal. The argument is meritless in light of the strong
evidence that supports defendant’s convictions of both the Lebouef and Dean
offenses, which we have elsewhere recounted (see ante, at p. 23) and need not
d. Wilson claim
As noted, Dr. Cotton testified about the frequency of the genetic profile that
matched defendant’s DNA and DNA extracted from the vaginal swabs using both
the interim ceiling method and the product rule; under the former, the frequency of
the profile in the general population was 1 in 53,000, under the latter the frequency
of the profile among Caucasians was 1 in 5.7 million. Citing People v. Wilson,
supra, 38 Cal.4th 1237, defendant contends that the trial court committed
reversible error by permitting Dr. Cotton to testify to the frequency of the profile
Defendant also argues that the admission of Dr. Cotton’s testimony was
state law error because it was tantamount to the testimony by one expert as to the
opinion of another. (People v. Campos (1995) 32 Cal.App.4th 304,308.) We
disagree. As an expert witness, Dr. Cotton was free to rely on Yates’s report in
forming her own opinions regarding the DNA match. (Ibid. [“On direct
examination, the expert witness may state the reason for his or her opinion, and
testify that reports prepared by other experts were the basis for that opinion”].)
only among Caucasians, the racial group to which defendant belongs, rather than
for the three major racial and ethic groups — Caucasian, African-American and
Latino — for which DNA databases exist. He asserts, moreover, that the error is
of federal constitutional dimension because it improperly lowered the
prosecution’s burden of proof, thus violating his federal due process rights.
We conclude that defendant has forfeited his claim by failing to specifically
object on the grounds he now advances. In any event, we find the claim without
merit and, even if error occurred, harmless.
Defendant concedes there was “no specific objection to this testimony,” but
nonetheless argues that the issue is cognizable on appeal because he “had
previously objected to the admission of DNA evidence as a whole,” and that this
objection had been overruled. He argues in this connection that his due process
objection flows from his trial court objection and is therefore preserved under
People v. Partida (2005) 37 Cal.4th 428. Alternatively, he contends his federal
constitutional claim is cognizable even without an objection. These arguments are
“A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of
evidence unless: [¶] (a) There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion.” (Evid. Code, § 353.) “What
is important is that the objection fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the objecting party believes
the evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.” (People v. Partida,
supra, 37 Cal.4th at p. 435.)
Defendant’s failure to specifically object at trial to the population frequency
testimony on the ground that evidence regarding only the Caucasian database
improperly suggested that the perpetrator was a member of defendant’s race
deprived the prosecution of the opportunity either to present frequency evidence
for the other two databases or to defend its decision not to. His failure to have
lodged a specific objection on this ground is especially glaring given that Dr.
Cotton testified that Cellmark ordinarily analyzes the frequency of a DNA profile
for each major database, and, on cross-examination, provided the frequency of the
perpetrator’s genetic profile in the African-American population. Therefore, had
defendant lodged a timely and specific objection, Dr. Cotton could presumably
have testified to the frequency of the DNA profile for all three major populations.
Alternatively, the prosecution could have defended its decision to present
testimony as to the Caucasian population only by pointing out, for example, that
hairs recovered from the victim’s fingernails and hands indicated that the
perpetrator was likely Caucasian. A timely and specific objection would also, of
course, have permitted the trial court to have made a fully informed ruling.
Defendant attempts to excuse his failure by arguing that he had previously
objected to admission of DNA evidence as a whole, and the specific objection at
issue here was merely a subset of that larger objection that the trial court had
already overruled. We are unpersuaded. Defendant refers us to his pretrial
motion, argued several months before his trial, in which he objected to all DNA
evidence on the grounds that DNA analysis was not generally accepted by the
scientific community as required by the Kelly/Frye rule. (People v. Kelly (1976)
17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 293 F. 1013.) In passing,
defendant cited People v. Pizarro (1992) 10 Cal.App.4th 57, which he described
as “questioning the acceptability of statistical ratios assigned to a particular racial
or ethnic data bases.” Notwithstanding this brief reference, defendant did not
press this objection but argued rather that “D.N.A. analysis in not admissible in
California courts” because it failed to pass muster under the Kelly/Frye rule.
Under these circumstances, we disagree that a general attack on the
scientific validity of DNA testing made months before trial encompasses the
specific claim that defendant seeks to advance regarding the use of a single
database to calculate the frequency of a particular genetic profile, because
defendant’s present claim assumes the general validity of DNA testing and
questions only whether the population frequency evidence was unfairly skewed to
his detriment. Defendant also fails to demonstrate that he was excused from
raising this objection at trial because such objection would have been futile.
Nor do we agree that this case presents a scenario similar to the one we
addressed in Partida. In Partida, a timely and specific objection to the admission
of evidence was made on state law grounds. The issue was whether that objection
was sufficient to preserve a federal due process claim where the due process claim
was merely “an additional legal consequence of the asserted [state] error . . . .”
(People v. Partida, supra, 37 Cal.4th at p. 438.) Here there was no specific or
timely objection from which it could be argued that the constitutional claim
flowed. Accordingly, we conclude that defendant’s failure to object forfeits his
claim on appeal. We reject his further argument that his constitutional claim is of
such magnitude that principles of forfeiture should not apply.
In any event, the claim fails on its merits. While in Wilson we held that,
generally, the frequency of the perpetrator’s genetic profile should be given as to
all three major population groups, we left open the possibility that, where the
perpetrator’s ethnicity is established by other evidence, the frequency of that
population only might be acceptable. (People v. Wilson, supra, 38 Cal.4th at p.
1249.) Here, the hair analysis established that hairs removed from the victim’s
fingernails were characteristic of Caucasians. Thus, there was other evidence
before the jury suggesting that the perpetrator was Caucasian. Finally, for the
reasons set forth in the preceding section, even if there were error, we conclude
that the error was harmless beyond a reasonable doubt.
C. Penalty Phase Issues
1. Judicial Misconduct
Defendant contends that remarks made by the trial court were inappropriate
to the solemnity of a capital case and constituted misconduct. He argues further
that the court’s remarks to two defense mitigation witnesses during the penalty
phase undercut their credibility. He asserts that the cumulative effect of this
misconduct requires reversal of the death verdict.
The guilt phase comments of which defendant complains are as follows:
Frances Hodges, a manicurist, testified for the prosecution about the type of
acrylic nails she had applied to Erin Tynan’s fingers, and the amount of force it
would require to break such a nail. After she testified, the court remarked, “As
long as we have Mrs. Hodges here, anyone want to make an appointment before
recess or have her check your nails to see if you need a manicure?” Betsy
Schmitt, a customer service representative for a credit reporting agency, testified
about defendant’s financial history. During cross-examination, the defense
attorney identified an amount the defendant owed to the American Express
Company, and referred to the company’s familiar motto, “Don’t leave home
without it.” Before dismissing Schmitt, the court asked her if she would “agree
that Mr. Geier followed the admonition not to leave home without his American
Express Card?” After Victorville Police Officer Peter Gryp testified that firemen,
as well as police, were present at the Dean murder scene, the court engaged him in
a brief colloquy about firemen that ended with the court asking, “Do they have a
friendly dog at the station?” As Irving Root, the prosecution’s pathologist, was
testifying to the various wounds to Curtis James Dean’s body, the prosecutor made
a comment about “flesh[ing] out the picture.” The trial judge responded, “No pun
intended, I take it?” Shortly afterwards, the prosecutor stated, “Since the court
was entertained with my pun, I will try another one. Let’s bring matters to a head
Defendant also complains about comments the trial court made when it
paused to recognize Law Day. The court noted that “the reason that we observe
Law Day is because this is a country that is based on law and order and we have
many rights to be thankful for and you have been exposed to the criminal justice
system now for many, many months and you personally have observed many of
the rights that both of the parties in this case enjoy under both the federal
Constitution and the Constitution of the State of California.” The court concluded
its brief encomium to the American justice system by remarking, “I think we
recognize that were it not for the laws that we do enjoy, we would have more
incidents such as we unfortunately had the other day in Oklahoma City, a terrible
tragedy, and hopefully the people responsible will be brought to justice, but they
will enjoy the rights that all people have under our constitution when they are
apprehended and brought to trial.”
In addition to these guilt phase comments, the defendant cites two remarks
made by the judge during the penalty phase to mitigation witnesses he claims
denigrated their credibility. Eric Grantham, a friend of defendant’s during their
high school years in Alabama, was questioned by the prosecutor about parties he
and defendant had attended in fields outside of their Alabama town. Before
excusing Grantham, the judge asked, “You said there were 20, sometimes a
hundred people in the group?” The witness responded, “Yes, sir, out in the field.”
The judge then asked, “Was one of them by the name of Forrest Gump?”14
Sandra Hoyt, the mother of defendant’s child, testified that when she first met
defendant she was married to another man, but had separated from him, and that
he was involved with her sister. The judge asked, “Have you ever been asked to
go on Oprah?” In reply, she asked, “Why do you say that?” The judge
responded, “You are excused and free to go. Thank you.”
Defendant also complains about the trial court’s remarks at the end of the
penalty phase, complimenting both counsel for their civility, which the court
contrasted to “a trial that has taken place to the west of us in Los Angeles [where
the proceedings were criticized] because of the theatrical inclinations of the
participants, et cetera.” 15 The trial court asked the jurors to give counsel “a round
of applause for the job they have done for their clients.”
The Attorney General argues that defendant has forfeited any claim of
judicial misconduct because trial counsel failed to object to any of the allegedly
improper remarks by the court. “As a general rule, judicial misconduct claims are
not preserved for appellate review if no objections were made on that ground at
trial.” (People v. Sturm (2006) 37 Cal.4th 1218, 1236; see also People v. Melton
(1988) 44 Cal.3d 713, 753.) Defendant argues that this claim involves “the due
administration of justice” and may therefore be raised on appeal even without an
This remark possibly referred to a comment made the previous week during
the examination of mitigation witness Dan Quincy, a childhood friend of
defendant. While testifying that he worked for Auburn University, defense
counsel stated, “That’s Auburn University where Bo Jackson and Charles Barkley
went?” After the witness agreed, counsel then asked, “And Forrest Gump went to
Evidently the court was referring to the highly publicized O.J. Simpson
criminal trial, which was taking place at the same time as defendant’s trial.
objection at trial. In support, he cites Catchpole v. Brannon (1995) 36
Catchpole involved the trial of a female plaintiff’s claim of sexual
harassment, among other causes of action, in which the trial judge displayed a
pervasive gender bias that was alternately “courtly and patronizing or harsh and
reprimanding.” (Catchpole v. Brannon, supra, 36 Cal.App.4th at p. 251.) In
reversing the judgment for the defendant and remanding the case for trial before a
different judge, the reviewing court declined to apply forfeiture principles to the
plaintiff’s bias claim even though she had not objected to the trial court’s improper
comments. The reviewing court posited that she may have refrained from
objecting because of the risk of offending the trial judge. Moreover, “doubt
whether the problem could be cured by objection might discourage the assertion of
even meritorious claims.” (Id. at p. 244.) Additionally, forfeiture would “have the
unjust effect of insulating judges from accountability for bias.” (Ibid.) The
reviewing court concluded that the plaintiff’s failure to object in the case before it
was excused because of the “public interest” and “administration of justice”
factors inherent in the issue of judicial gender bias. (Ibid.)
The case before us does not involve a claim of judicial gender bias or any
other kind of invidious bias by the trial court. Catchpole is, therefore, inapposite
and does not excuse defendant’s failure to object to the trial court’s allegedly
improper remarks. Defendant therefore has forfeited any claim of judicial
misconduct. Even if the claim was not forfeited, it is without merit.
Defendant suggests that the trial judge’s jocular manner with prosecution
witnesses during the guilt phase set a tone lacking the degree of solemnity
appropriate to a capital case, and may have affected the jury’s penalty phase
deliberations in a manner adverse to him. He cites United States v. Young (1985)
470 U.S. 1, 10, for the principle that “the trial judge has the responsibility to
maintain decorum in keeping with the nature of the proceeding.” (See also People
v. Sturm, supra, 37 Cal.4th at p. 1238 [noting that attempts at judicial humor are
“always a risky venture during a trial for a capital offense.”].)
We disagree. Considered in the context of this lengthy trial, the four
fleeting remarks during the guilt phase of which defendant complains were
innocuous and did not constitute judicial misconduct. Moreover, we find nothing
improper in the trial court’s Law Day comments, the apparent purpose of which
was to impress upon the jurors the larger meaning of their participation in the
justice system, nor in the trial court’s compliments to counsel for the civil manner
in which they conducted themselves at trial. None of these comments had any
tendency to bolster the prosecution or denigrate the defense, nor does defendant
cite anything in the record to support his speculation that these remarks had a
negative effect on the jury’s penalty phase deliberations.
On the other hand, we agree that the trial court’s “Forrest Gump” and
“Oprah” remarks during the penalty phase were improper, even if no impropriety
was intended. Associating one mitigation witness, Eric Grantham, with a dim-
witted fictional character and suggesting that the personal life of Sandra Hoyt,
another mitigation witness, was the stuff of tabloid television could have been
perceived by jurors as derogatory comments on the credibility of those witnesses.
(People v. Sturm, supra, 37 Cal.4th at p. 1238 [“A trial court commits misconduct
if it ‘ “persists in making discourteous and disparaging remarks to a defendant’s
counsel and witnesses and utters frequent comment from which the jury may
plainly perceive that the testimony of the witnesses is not believed by the
judge” ’ ”].) Nonetheless, even if improper, these brief, isolated comments “fall
short of the intemperate or biased judicial conduct which warrants reversal.”
(People v. Melton, supra, 44 Cal.3d at p. 754 [trial court’s comment to defense
clinical psychologist Dr. Podboy whether it could call him “John Boy for short,”
and its remark “permission granted” in response to a hypothetical that involved
shooting the public defender, “while unfortunate” were not misconduct requiring
2. Denial of Defense Penalty Phase Instructions
Defendant contends that the trial court erred by declining to give four
special defense instructions and that the errors, individually and cumulatively,
violated his right to a fair penalty determination under the Eighth and Fourteenth
Amendments to the federal Constitution. We reject these claims.
First, defendant contends the trial court erred when it declined to instruct
the jury that the absence of a mitigating factor cannot be considered a factor in
aggravation. In cases where, as here, the jury was instructed with CALJIC No.
8.85, we have consistently rejected this particular claim of error. “[A]s we have
held, ‘a reasonable juror could not have believed . . . that the absence of mitigation
amounted to the presence of aggravation.’ ” (People v. Vieira (2005) 35 Cal.4th
264, 299 [rejecting claim that trial court “should have instructed the jury . . . that
the absence of a mitigating factor could not be considered an aggravating factor”];
People v. Berryman (1993) 6 Cal.4th 1048, 1100.)
Next, defendant contends that the trial court erred when it refused to
instruct on lingering doubt. As defendant acknowledges, such instruction is
required neither by state nor federal law (People v. Lawley (2002) 27 Cal.4th 102,
166), and we have consistently held that this concept is sufficiently covered in
The defendant argues that where a judge sets an improper tone before
penalty deliberations, as alleged here, the test for reversal should be whether a
reasonable person would lack confidence in the fairness of the proceedings.
(Hernandez v. Paicus (2003) 109 Cal.App. 4th 452, 461.) The court in Hernandez
noted, however, that courts should apply this lower standard when “the appearance
of judicial bias and unfairness colors the entire record.” (Ibid.) Self-evidently,
that is not the case here.
CALJIC No. 8.85. (Ibid.; People v. Sanchez (1995) 12 Cal.4th 1, 77-78.)
Defendant’s arguments to the contrary notwithstanding, we see no reason to re-
examine those principles in the present case.
Defendant also contends that the trial court erred when it declined to give
his special instruction on sympathy. “We have consistently held, however, that
the trial court does not have to give such an instruction” (People v. Champion
(1995) 9 Cal.4th 879, 943), and that such instruction is “duplicative of an
instruction given by the trial court that the jury could consider ‘[a]ny other
circumstance which extenuates the gravity of the crime even though it is not a
legal excuse for the crime and any sympathetic or other aspects of the defendant’s
character or record that the defendant offers as a basis for a sentence less than
death, whether or not related to the offense for which he is on trial.’ ” (People v.
Hines (1997) 15 Cal.4th 997, 1068-1069; see CALJIC No. 8.85.) Defendant’s
arguments do not persuade us that these principles should not apply equally here.
Finally, defendant contends that the trial court erred when it declined to
instruct the jury that it could impose life without the possibility of parole even in
the absence of any mitigating factors. As defendant acknowledges, we have
previously rejected this instruction on the ground, that under CALJIC No. 8.88,
which was given here, “[n]o reasonable juror would assume he or she was required
to impose death despite insubstantial aggravating circumstances, merely because
no mitigating circumstances were found to exist.” (People v. Johnson (1993) 6
Cal.4th 1, 52.) We adhere to this view.
We conclude that, under settled precedent, the trial court did not err in
declining to instruct the jury with the special defense instructions. Necessarily, we
find no constitutional violations or any prejudice, singular or cumulative, requiring
reversal of the penalty determination.
3. Improper Denial of Automatic Motion to Modify the Verdict
Defendant contends that, in ruling upon his automatic motion to modify the
verdict (§ 190.4, subd. (e)), the trial court impermissibly deferred to the jury’s
verdict, and improperly failed to separately consider each of the two death
sentences. He contends that these errors violated various constitutional provisions
and require remand for reconsideration of his motion.
Section 190.4, subdivision (e) states, in relevant part: “In every case in
which the trier of fact has returned a verdict or finding imposing the death penalty,
the defendant shall be deemed to have made an application for modification of
such verdict or finding . . . . In ruling on the application, the judge shall review the
evidence, consider, take into account, and be guided by the aggravating and
mitigating circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury’s findings and verdicts that the aggravating
circumstances outweigh the mitigating circumstances are contrary to law or the
evidence presented. The judge shall state on the record the reasons for his
“In ruling on the motion, the trial court must independently reweigh the
evidence of aggravating and mitigating factors presented at trial and determine
whether, in its independent judgment, the evidence supports the death verdict. . . .
On appeal, we independently review the trial court’s ruling after reviewing the
record, but we do not determine the penalty de novo.” (People v. Steele (2002) 27
Cal.4th 1230, 1267.)
Defendant claims that the trial court failed to engage in the required
independent review, but concedes that the trial court framed its analysis in light of
the applicable independent review standard. The court observed: “The trial judge
has a duty to review the evidence to determine whether in his independent
judgment the weight of the evidence supports the jury’s verdict . . . . [¶] In
determining whether in his independent judgment the weight of the evidence
supports the verdict, the judge is required to assess the credibility of the witnesses,
to determine the probative force of the testimony and weigh the evidence.”
In its review of the evidence as to each count, the trial court cited specific
evidence that had led it to “agree with the conclusion reached by the jury” that all
counts, special circumstances and special allegations had been established beyond
a reasonable doubt. The trial court also applied the standard of independent
review to the penalty phase evidence – again, citing specific evidence in
mitigation and aggravation – and concluded that “the evidence in aggravation is so
substantial when compared to the evidence in mitigation to support the selection of
the death penalty as the appropriate punishment and that this is overwhelmingly
supported by the weight of the evidence.”
The trial court’s remarks demonstrate that it understood and applied the
independent review standard. (See People v. Smith (2003) 30 Cal.4th 581, 640
[“In this case, the court’s preliminary remarks show it understood [its] duty
precisely”].) Contrary to defendant’s suggestion that the trial court’s invocation of
the independent standard was rote, our reading of the record persuades us that “the
court carefully and conscientiously performed its duty under section 190.4.”
(People v. Steele, supra, 27 Cal.4th at p. 1268.)
We also find no merit in defendant’s other claim that the trial court failed to
consider the Tynan and Dean death sentences separately. As noted, the trial court
considered the evidence that supported defendant’s conviction of each count
separately in its analysis of the guilt phase verdicts. As for the penalty phase,
defendant does not suggest, nor does the record reveal, that he presented
mitigating evidence that might have applied to one case but not the other. Thus,
defendant’s claim must be rejected.
4. Constitutionality of Lying-in-wait Special Circumstance
Defendant contends that California’s lying-in-wait special circumstance
(§ 190.2, subd. (a)(15)) fails to adequately narrow the class of persons eligible for
the death penalty and, therefore, violates the Eighth Amendment. Prior decisions
of this court have consistently rejected this claim (e.g., People v. Carpenter (1997)
15 Cal.4th 312, 419), and we see no reason to reexamine that conclusion.
5. Intercase Proportionality
that California’s failure to conduct intercase
proportionality review of death sentences violates the Eighth and Fourteenth
Amendments. “Neither the federal nor state Constitution requires intercase
proportionality review” (People v. Cunningham (2001) 25 Cal.4th 926, 1042), and
we have consistently rejected this argument. (People v. Panah, supra, 35 Cal.4th
at p. 500; People v. Lewis (2001) 26 Cal.4th 334, 394-395 [“We also reject
defendant’s claim that because it does not require intercase proportional review,
the California death penalty statute ensures arbitrary, discriminatory, or
disproportionate impositions of death sentences”].)
6. Constitutional Challenges to the Death Penalty Statute
Defendant mounts a number of challenges to the death penalty statute
(§ 190.2) that our prior decisions have considered and consistently rejected. He
provides no persuasive reason for us to reexamine those conclusions. We again
therefore conclude that: (1) the statute is not unconstitutional because it does not
assign a burden of proof as to the existence of aggravating factors; does not
require the jury to find that circumstances in aggravation outweigh circumstances
in mitigation beyond a reasonable doubt; that death is an appropriate sentence; or
require that the jury be so instructed. (People v. Ramirez, supra, 39 Cal.4th at p.
475; People v. Panah, supra, 35 Cal.4th at p. 499; People v. Stitely, supra, 35
Cal.4th at p. 573; (2) nor is the statute unconstitutional because jurors are not
required, and were not instructed, to unanimously agree on the aggravating factors
(People v. Stitely, supra, 35 Cal.4th at p. 573); (3) nor is the statute deficient
because it does not require the jury be instructed on the presumption of life, nor
was there any error because the jury was not so instructed. (People v. Young
(2005) 34 Cal.4th 1129, 1233.)
7. CALJIC No. 8.88
that CALJIC No. 8.88, which defines the scope of the
jury’s sentencing discretion, is constitutionally deficient because (1) the phrase “so
substantial” used to compare aggravating factors with the mitigating factors is
impermissibly vague; (2) fails to inform the jury that its central determination is
whether death is an appropriate, and not merely an authorized, penalty; (3) fails to
instruct the jury that, if they determine the factors in mitigation outweigh the
factors in aggravation, they are required to return a sentence of life without
possibility of parole, and; (4) fails to instruct the jury that defendant does not have
the burden to persuade it that the death penalty was inappropriate.
We have consistently rejected each of these challenges to the instruction.
(People v. Carter (2003) 30 Cal.4th 1166, 1226 [rejecting claim that “the ‘so
substantial’ standard employed here for comparing aggravating and mitigating
factors was unconstitutionally vague, conducive to arbitrary and capricious
decisionmaking, and created an unconstitutional presumption in favor of death”];
People v. Smith (2005) 35 Cal.4th 334, 370 [“ ‘By 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’ ”]; People v. Taylor (2001) 26 Cal.4th 1155, 1181 [CALJIC
No. 8.88 is not deficient because it does not direct the jury that it is required to
return a sentence of life without parole if it concludes the mitigation circumstances
outweigh the aggravation circumstances “in light of other language in this
instruction, allowing a death verdict only if aggravating circumstances outweighed
mitigating ones”]; People v. Smith, supra, 35 Cal.4th at pp. 370-371 [CALJIC No.
8.88 is not deficient because it does not inform the jury of the burden of
persuasion because “[t]here is no penalty phase burden of persuasion”].) We
adhere to our conclusions.
8. CALJIC No. 8.85
Defendant contends that CALJIC No. 8.85, the standard instruction
regarding the section 190.3 factors in mitigation and aggravation that are to be
considered in determining whether to impose a death sentence or life without
parole, is constitutionally infirm because (1) the “circumstances of the crime”
factor in aggravation (§ 190.3, factor (a)) as applied via the instruction results in
the arbitrary and capricious imposition of the death penalty; (2) the trial court
failed to delete inapplicable sentencing factors from the instruction; (3) the
instruction fails to inform the jury that mitigating factors are relevant solely for
mitigation; (4) the use of adjectives in the instruction such as “extreme” and
“substantial” erect a barrier to the jury’s consideration of mitigation, and; (5) the
instruction failed to require written findings by the jury regarding the aggravating
We have consistently rejected each of these challenges to the instruction.
(People v. Smith, supra, 35 Cal.4th at p. 373 [“Neither the breadth of the
‘circumstances of the crime’ in factor (a) of section 190.3, nor disagreement about
what circumstances are aggravating, results in arbitrary and capricious application
of the death penalty”]; Tuilaepa v. California (1994) 512 U.S. 967, 975 [rejecting
Eighth Amendment challenge to section 190.3, factor (a)]; People v. Stitely, supra,
35 Cal.4th at p. 574 [“[T]he trial court did not err in failing to . . . delete assertedly
inapplicable sentencing factors”]; People v. Ramos (2004) 34 Cal.4th 494, 530
[rejecting claim that instruction is deficient because it does not inform jury that
mitigating factors are relevant only to mitigation because this court has
“considered and rejected the identical contention in several recent cases, and no
evidence suggests the jury was unable to properly apply the instruction”]; People
v. Box (2000) 23 Cal.4th 1153, 1217 [“Nor are the factors a jury may consider in
determining penalty, such as the circumstances of the crime, the defendant’s age,
or the use of the adjectives ‘extreme’ and ‘substantial,’ unconstitutionally vague”];
People v. Stitely, supra, 35 Cal.4th at p. 574 [“The trial court did not prevent
meaningful appellate review by failing to require a written statement of the jury’s
findings and reasons for imposing a death sentence”].) We adhere to these
9. International Law
Defendant contends that his death sentence violates international law. We
have consistently rejected this claim. (People v. Ramirez, supra, 39 Cal.4th at
p. 479; People v. Panah, supra, 35 Cal.4th at pp. 500-501; People v. Hillhouse
(2002) 27 Cal.4th 469, 511; People v. Ghent (1987) 43 Cal.3d 739, 778-779.)
10. Effect of Errors
Defendant contends that the cumulative effect of error requires reversal of
both guilt and penalty phase proceedings. However, as defendant “has
demonstrated few errors, and we have already found such errors or possible errors
harmless, either individually or cumulative, ‘we likewise conclude that their
cumulative effect does not warrant reversal of the judgment.’ (People v. Panah,
supra, 35 Cal.4th at pp. 479-480.)” (People v. Jablonski, supra, 37 Cal.4th at
Defendant also argues that, were we to set aside any conviction or special
circumstance finding, the entire matter must be remanded for a new sentencing
hearing. As we have not done so, there is no basis for remand.
The judgment is affirmed.
WE CONCUR: GEORGE, C. J.
CONCURRING OPINION BY WERDEGAR, J.
I concur in the decision affirming defendant’s convictions and imposition
of the death penalty, but write separately to address the admission of DNA match
testimony that was based on analysis by a nontestifying laboratory technician.
I agree with the majority that the technician’s notes and report were not
“testimonial” hearsay and hence their introduction through the prosecution’s DNA
expert did not violate defendant’s confrontation rights under Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). I reach that conclusion, however,
only on narrow, fact-specific grounds; I would not hold or imply that all laboratory
reports are nontestimonial. Unlike the majority, moreover, I would not hold that
any error in admitting the DNA match evidence was harmless beyond a reasonable
As the majority explains, the prosecution tied defendant to the rape and
murder of Erin Tynan partly through the expert testimony of Dr. Robin Cotton,
director of Cellmark. Cotton testified that DNA taken from Tynan’s vagina
matched defendant’s DNA sample and that the frequency of the matched DNA
profile was between 1 in 53,000 and 1 in 5.7 million, depending on the population
statistics used. Cotton did not, however, perform or personally supervise the
laboratory analysis leading to the match. That was done by Cellmark technician
Paula Yates, who was not called as a witness. In testifying to the procedures used
and the analytical results, Cotton relied entirely on Yates’s forms, notes and report
and at points quoted or paraphrased statements Yates had made in those written
records, thus introducing them into evidence. The truth of Yates’s written
statements regarding the steps she had taken to compare the various DNA samples
was obviously critical to Cotton’s opinion that defendant’s DNA profile matched
that of semen found in the victim’s vagina, and the jury was not instructed that
Yates’s statements were not to be considered for their truth.
The prosecution thus introduced, through Cotton, hearsay statements of a
declarant—the technician, Paula Yates—who was not present at trial and whom
defendant had had no prior opportunity to cross-examine. If those statements were
testimonial, their admission violated defendant’s rights under the Sixth
Amendment’s confrontation clause. (Crawford, supra, 541 U.S. at p. 59.)
The majority gives two reasons for holding Yates’s notes and reports were
nontestimonial. First, Yates’s written record of her laboratory procedures
“constitute[s] a contemporaneous recordation of observable events rather than the
documentation of past events.” (Maj. opn., ante, at p. 63.) Second, the majority
relies on the broader set of circumstances surrounding the production and use of
Yates’s records and notes: “Yates’s report and notes were generated as part of a
standardized scientific protocol that she conducted pursuant to her employment at
Cellmark” and “merely recount the procedures she used to analyze the DNA
samples,” while “the accusatory opinions in this case—that defendant’s DNA
matched that taken from the victim’s vagina and that such a result was very
unlikely unless defendant was the donor—were reached and conveyed not through
the nontestifying technician’s laboratory notes and report, but by the testifying
witness, Dr. Cotton.” (Id. at p. 65.)
I agree with the majority’s second approach, reliance on the entire set of
facts surrounding the production and use of Yates’s hearsay statements. I am not
persuaded that every part of every laboratory report could properly be deemed
nontestimonial simply because it did not recount past criminal events. A report’s
accusatorial conclusion that a defendant’s fingerprints or DNA matched a latent
print at the scene or an evidentiary blood or semen sample, for example, might be
considered testimonial under some circumstances even though it did not recount
past criminal events.
Having concluded that Dr. Cotton’s DNA match testimony did not violate
Crawford, a conclusion with which I agree, the majority goes on to assert,
gratuitously, that any error in its admission would be harmless under the beyond a
reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24.
(Maj. opn., ante, at pp. 64-65.) I cannot agree. The other evidence tying
defendant to Tynan’s rape and murder was mainly circumstantial and was not
definitive: Defendant expressed a sexual interest in Tynan, hairs consistent with
defendant’s were found at the scene, the gun defendant had earlier sold William
Jones, Jr., was missing from the victim’s apartment, and defendant possessed and
may have used a similar gun later. Defendant’s girlfriend’s roommate, a regular
amphetamine user, testified that defendant had made detailed statements about the
manner of Tynan’s death before she (the roommate) read about it in the
newspaper, but admitted on cross-examination that she did not read the newspaper
every day and in fact did not know if any articles had appeared prior to her
conversation with defendant. An accomplice of defendant’s in another murder, a
methamphetamine user testifying under a grant of immunity, stated that defendant
had told him he killed Tynan but gave no details. In contrast to the circumstantial
evidence and the highly impeachable hearsay evidence of defendant’s statements,
Dr. Cotton’s DNA match testimony showed defendant’s involvement in the crime
directly and scientifically. Where, as here, the other evidence of guilt was far
from conclusive, finding beyond a reasonable doubt that evidence of a DNA
match with semen found in the victim’s vagina had no effect on the verdict is, in
my view, unsupportable.
In all other respects I concur in the majority opinion.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Geier
Original Appeal XXX
Opinion No. S050082
Date Filed: July 2, 2007
County: San Bernardino
Judge: Kenneth G. Ziebarth, Jr.
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, and Barry P. Helft, Chief Deputy State Public Defender, for
Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves,
Chief Assistant Attorneys General, Gary W. Shons, Assistant Attorney General, William M. Wood, Holly
Wilkens and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Barry P. Helft
Chief Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
Andrew S. Mestman
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Andrew S. Mestman, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Geier, Christopher Adam (Appellant)|
San Quentin State Prison
Represented by Glen Niemy
Attorney at Law
P.O. Box 764
|3||Geier, Christopher Adam (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Barry P. Helft, Chief Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Jul 2 2007||Opinion: Affirmed|
|Jul 21 1995||Judgment of death|
|Nov 17 1995||Filed certified copy of Judgment of Death Rendered|
|Jul 6 1999||Filed:|
Applt's Applic. for appointment of Counsel.
|Jul 6 1999||Counsel appointment order filed|
The State public Defender Is appointed to represent Applt for The direct Appeal.
|Jul 12 1999||Received:|
Notice from Superior Court that Record Was mailed to Applt's Counsel on 7-8-99.
|Oct 6 1999||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Oct 7 1999||Extension of Time application Granted|
To 12/13/99 To Applt To request Corr. of the Record.
|Dec 10 1999||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Dec 15 1999||Extension of Time application Granted|
To 2/14/2000 To Applt To request Corr. of the Record.
|Feb 9 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Feb 15 2000||Extension of Time application Granted|
To 4/14/2000 To Applt To request Corr. of the Record.
|Apr 17 2000||Application for Extension of Time filed|
By Applt to request Corr. of the Record.
|Apr 17 2000||Counsel appointment order filed|
Appointing Glen Niemy to represent Applt for Habeas Corpus/Executive Clemency Proceedings Related to the Automatic Appeal.
|Apr 21 2000||Filed:|
Supplemental Declaration in support of Eot to request Corr. of the Record.
|Apr 28 2000||Extension of Time application Granted|
To 6/13/2000 To Applt To request Corr. of the Record.
|Jun 13 2000||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jun 22 2000||Extension of Time application Granted|
To 8/14/2000 To Applt To request Corr. of the Record.
|Jul 31 2000||Counsel's status report received (confidential)|
from State P.D.
|Aug 22 2000||Application for Extension of Time filed|
By applt to request corr. of the (6th request)
|Aug 25 2000||Extension of Time application Granted|
To 10/13/2000 to applt to request corr. of the record.
|Aug 29 2000||Counsel's status report received (confidential)|
from State P.D.
|Sep 19 2000||Compensation awarded counsel|
|Sep 26 2000||Counsel's status report received (confidential)|
from State P.D.
|Oct 10 2000||Application for Extension of Time filed|
By applt to request corr. of the record. (7th request)
|Oct 20 2000||Counsel's status report received (confidential)|
from atty Niemy.
|Oct 24 2000||Extension of Time application Granted|
To 12/12/2000 to applt to request corr. of the record.
|Nov 6 2000||Change of Address filed for:|
Atty Glen Niemy
|Nov 16 2000||Compensation awarded counsel|
|Nov 22 2000||Counsel's status report received (confidential)|
from State P.D.
|Dec 8 2000||Application for Extension of Time filed|
By applt to request corr. of the record. (8th request)
|Dec 18 2000||Extension of Time application Granted|
To 2/13/2001 to applt to request corr. of the record.
|Dec 18 2000||Counsel's status report received (confidential)|
from atty Niemy.
|Jan 10 2001||Compensation awarded counsel|
|Jan 22 2001||Counsel's status report received (confidential)|
from State P.D.
|Feb 9 2001||Application for Extension of Time filed|
By applt to request corr. of the record. (9th request)
|Feb 16 2001||Extension of Time application Granted|
To 4/16/2001 to applt to request corr. of the record.
|Mar 1 2001||Counsel's status report received (confidential)|
from atty Niemy.
|Mar 20 2001||Counsel's status report received (confidential)|
from State P.D.
|Apr 11 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (10th request)
|Apr 20 2001||Extension of Time application Granted|
To 6/15/2001 to applt. to request corr. of the record. No further extensions are contemplated.
|May 3 2001||Counsel's status report received (confidential)|
from atty Niemy.
|May 21 2001||Counsel's status report received (confidential)|
from State P.D.
|Jun 12 2001||Application for Extension of Time filed|
By applt. to request corr. of the record. (11th request)
|Jun 14 2001||Compensation awarded counsel|
|Jun 15 2001||Extension of Time application Granted|
To 8/14/2001 to applt. to request corr. of the record. No further extensions of time will be granted.
|Jul 23 2001||Change of Address filed for: applt. counsel Niemy.|
|Jul 25 2001||Counsel's status report received (confidential)|
from atty Niemy.
|Jul 25 2001||Counsel's status report received (confidential)|
from State P.D.
|Aug 13 2001||Received copy of appellant's record correction motion|
applt's motion to correct, augment and settle the record on appeal. (102 pp.)
|Aug 22 2001||Compensation awarded counsel|
|Sep 24 2001||Counsel's status report received (confidential)|
from State P.D.
|Sep 27 2001||Counsel's status report received (confidential)|
from atty Niemy.
|Oct 16 2001||Compensation awarded counsel|
|Oct 17 2001||Compensation awarded counsel|
|Nov 29 2001||Counsel's status report received (confidential)|
from State P.D.
|Dec 17 2001||Counsel's status report received (confidential)|
from atty Niemy.
|Jan 28 2002||Counsel's status report received (confidential)|
from State P.D.
|Mar 1 2002||Counsel's status report received (confidential)|
from atty Niemy.
|Mar 11 2002||Counsel's status report received (confidential)|
(supplemental) from atty Niemy.
|Mar 29 2002||Counsel's status report received (confidential)|
from State P.D.
|Apr 4 2002||Compensation awarded counsel|
|May 28 2002||Counsel's status report received (confidential)|
from State P.D.
|Jun 6 2002||Counsel's status report received (confidential)|
from atty Niemy.
|Jun 26 2002||Compensation awarded counsel|
|Jul 23 2002||Counsel's status report received (confidential)|
from atty Niemy.
|Jul 29 2002||Counsel's status report received (confidential)|
from State P.D.
|Aug 29 2002||Compensation awarded counsel|
|Sep 23 2002||Filed:|
Modified declaration regarding fixed fee payment (confidential).
|Sep 25 2002||Compensation awarded counsel|
|Oct 1 2002||Counsel's status report received (confidential)|
from State P.D.
|Oct 3 2002||Counsel's status report received (confidential)|
from atty Niemy.
|Dec 2 2002||Counsel's status report received (confidential)|
from State P.D.
|Dec 6 2002||Counsel's status report received (confidential)|
from atty Niemy.
|Jan 31 2003||Counsel's status report received (confidential)|
from State P.D.
|Feb 3 2003||Counsel's status report received (confidential)|
from atty Niemy.
|Feb 13 2003||Counsel's status report received (confidential)|
(addendum) from atty Niemy.
|Apr 1 2003||Counsel's status report received (confidential)|
from State P.D.
|Apr 18 2003||Counsel's status report received (confidential)|
from atty Niemy.
|Apr 25 2003||Change of Address filed for:|
habeas corpus counsel Glen Niemy.
|Apr 30 2003||Record on appeal filed|
44 vols. of clerk's transcript (11,699 pp.) and 50 vols. of reporter's transcript (11,781 pp.), including material under seal. (Clerk's transcript includes 8,135 pp. of juror questionnaires.)
|Apr 30 2003||Appellant's opening brief letter sent, due:|
|May 6 2003||Filed:|
Supplemental notice of change of address of habeas corpus counsel Glen Niemy.
|May 6 2003||Compensation awarded counsel|
|May 14 2003||Compensation awarded counsel|
|Jun 2 2003||Counsel's status report received (confidential)|
from State P.D.
|Jun 4 2003||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Jun 6 2003||Extension of time granted|
to 8/8/2003 to file appellant's opening brief.
|Aug 4 2003||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Aug 4 2003||Counsel's status report received (confidential)|
from State P.D.
|Aug 7 2003||Extension of time granted|
to 10/7/2003 to file appellant's opening brief. After that date, only six further extensions totaling about 330 additional days will be granted. Extension is granted based upon Assistant State Public Defender Barry P. Helft's representation that he ancitipates filing that brief by 8/21/2004.
|Aug 18 2003||Counsel's status report received (confidential)|
from atty Niemy.
|Sep 11 2003||Compensation awarded counsel|
|Oct 2 2003||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|Oct 3 2003||Counsel's status report received (confidential)|
from State PD.
|Oct 8 2003||Extension of time granted|
to 12/8/2003 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 Assistant State Public Defender Barry P. Helft's representation that he anticipates filing tht brief by 8/21/2004.
|Oct 14 2003||Compensation awarded counsel|
|Nov 13 2003||Counsel's status report received (confidential)|
from atty Niemy.
|Dec 2 2003||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Dec 3 2003||Counsel's status report received (confidential)|
from State P.D.
|Dec 4 2003||Extension of time granted|
to 2/6/2004 to file appellant's opening brief. After that date, only four further extensions totaling aobut 240 additional days will be granted. Extension is granted based upon Assistant State Public Defender Barry P. Helft's representation that he anticipates filing that brief by 8/31/2004.
|Jan 15 2004||Counsel's status report received (confidential)|
from atty Niemy.
|Feb 2 2004||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Feb 2 2004||Counsel's status report received (confidential)|
from State P.D.
|Feb 5 2004||Extension of time granted|
to 4/6/2004 to file appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Assistant State Public Defender Barry P. Helft's representation that he anticipates filing that brief by 8/31/2004.
|Mar 16 2004||Compensation awarded counsel|
|Mar 18 2004||Counsel's status report received (confidential)|
from atty Niemy.
|Apr 1 2004||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|Apr 1 2004||Counsel's status report received (confidential)|
from State P.D.
|Apr 12 2004||Extension of time granted|
to June 7, 2004 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Interim State Public Defender Barry P. Helft's representation that he anticipates filing that brief by October 6, 2004.
|May 17 2004||Counsel's status report received (confidential)|
from atty Niemy.
|Jun 2 2004||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Jun 2 2004||Counsel's status report received (confidential)|
from State P.D.
|Jun 8 2004||Extension of time granted|
to 8/6/2004 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Barry P. Helft's representation that he anticipates filing that brief by 10/6/2004.
|Aug 2 2004||Request for extension of time filed|
to file AOB. (8th request)
|Aug 2 2004||Counsel's status report received (confidential)|
from State P.D.
|Aug 9 2004||Extension of time granted|
to 10/5/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Barry Helft's representation that he anticipates filing tat document by 11/5/2004.
|Aug 20 2004||Counsel's status report received (confidential)|
from atty Niemy.
|Sep 15 2004||Compensation awarded counsel|
|Sep 30 2004||Request for extension of time filed|
to file AOB. (9th request)
|Sep 30 2004||Counsel's status report received (confidential)|
from State P.D.
|Oct 6 2004||Extension of time granted|
to 11/5/2004 to file appellant's opening brief. Extension is granted based upon Senior Deputy State Public Defender Barry Helft's representation that he anticipates filing that brief by 11/5/2004. After that date, no further extension will be granted.
|Oct 19 2004||Counsel's status report received (confidential)|
from atty Niemy.
|Nov 5 2004||Appellant's opening brief filed|
(83,830 words; 289 pp.)
|Dec 1 2004||Extension of time granted|
to file respondent's brief. (1st request)
|Dec 3 2004||Extension of time granted|
to 2/4/2005 to file respondent's brief.
|Dec 13 2004||Counsel's status report received (confidential)|
from atty Niemy.
|Feb 2 2005||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Feb 9 2005||Extension of time granted|
to 4/5/2005 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 Andrew S. Mestman's representation that he anticipates filing that brief by 6/1/2005.
|Feb 15 2005||Counsel's status report received (confidential)|
from atty Niemy.
|Apr 1 2005||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Apr 12 2005||Extension of time granted|
to 6/1/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Andrew Mestman's representation that he anticipates filing that brief by 6/1/2005. After that date, no further extension will be granted.
|Apr 14 2005||Counsel's status report received (confidential)|
from atty Niemy.
|May 18 2005||Compensation awarded counsel|
|Jun 1 2005||Respondent's brief filed|
(40,833 words; 134 pp.)
|Jun 13 2005||Counsel's status report received (confidential)|
from atty Niemy.
|Jun 15 2005||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Jun 17 2005||Extension of time granted|
to 8/22/2005 to file appellant's reply brief.
|Jul 13 2005||Compensation awarded counsel|
|Aug 16 2005||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Aug 18 2005||Counsel's status report received (confidential)|
from atty Niemy.
|Aug 22 2005||Extension of time granted|
to 10-21-2005 to file appellant's reply brief. After that date, only three further extensions totaling about 175 additional days are contemplated. Extension granted based upon Chief Deputy SPD Barry P. Helft's representation that he anticipates filing the brief by 4-14-2006.
|Sep 23 2005||Compensation awarded counsel|
|Oct 13 2005||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|Oct 20 2005||Extension of time granted|
to 12/20/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 115 additional days are contemplated. Extensionis granted based upon Chief State Public Public Defender Barry P. Helft's representation that he anticipates filing that brief by 4/14/2006.
|Oct 21 2005||Counsel's status report received (confidential)|
from atty Niemy.
|Dec 15 2005||Request for extension of time filed|
to file appellant's reply brief. (4th request)
|Dec 20 2005||Extension of time granted|
to 2/21/2006 to file the appellant's reply brief. After that date, only one further extension totaling about 52 additional days is contemplated. Extension is granted based upon counsel Chief Deputy State Public Defender Barry P. Helft's representation that he anticipates filing that brief by 4/14/2006.
|Dec 28 2005||Counsel's status report received (confidential)|
from atty Niemy.
|Feb 2 2006||Counsel's status report received (confidential)|
from atty Niemy.
|Feb 7 2006||Filed:|
Amended declaration of attorney Glen Niemy (confidential).
|Feb 8 2006||Compensation awarded counsel|
|Feb 16 2006||Request for extension of time filed|
to file reply brief. (5th request)
|Feb 22 2006||Extension of time granted|
to April 21, 2006 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Chief Deputy Stae Public Defender Barry P. Helft's representation that he anticipates filing that brief by April 21, 2006.
|Feb 22 2006||Compensation awarded counsel|
|Apr 20 2006||Appellant's reply brief filed|
(24,086 words; 89 pp.)
|May 1 2006||Counsel's status report received (confidential)|
from atty Niemy.
|Jun 14 2006||Habeas funds request filed (confidential)|
|Jul 12 2006||Order filed re habeas funds request (confidential)|
|Aug 4 2006||Compensation awarded counsel|
|Aug 4 2006||Filed:|
confidential declaration of attorney Glen Niemy.
|Aug 7 2006||Counsel's status report received (confidential)|
from atty Niemy.
|Aug 10 2006||Counsel's status report received (confidential)|
|Oct 18 2006||Related habeas corpus petition filed (concurrent)|
|Oct 23 2006||Counsel's status report received (confidential)|
from atty Glen Niemy.
|Nov 1 2006||Oral argument letter sent|
advising counsel that case could be scheduled for argument as early as the early January calendar, to be held the week of January 8, 2007 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.
|Nov 2 2006||Letter sent to:|
counsel advising that court could schedule oral argument as early as the December calendar, the week of December 4, 2006 in Los Angeles.
|Nov 2 2006||Application filed to:|
"Application for Permission to File Supplemental Opening Brief." (8320 word; 32 pp. brief submitted separate cover)
|Nov 7 2006||Filed letter from:|
Deputy Attorney General Mestman, dated Novemember 6, 2006, requesting that oral argument not be scheduled the week of December 4, 2006, due to out-of-state travel plans.
|Nov 8 2006||Order filed|
Appellant's "Application for Permission to File Supplemental Opening Brief" is granted. Any supplemental respondent's brief is to be served and filed on or before November 27, 2006. Any supplemental reply brief is to be served and filed on or before December 7, 2006. No extensions of time will be granted.
|Nov 8 2006||Filed:|
appellant's supplemental opening brief. (8,320 words; 32 pp.)
|Nov 22 2006||Filed:|
supplemental respondent's brief. (9129 words; 30 pp.)
|Jan 3 2007||Exhibit(s) lodged|
People's 37, 333-340 and 342.
|Mar 6 2007||Case ordered on calendar|
to be argued Wednesday, April 4, 2007, at 1:30 p.m., in Los Angeles
|Mar 14 2007||Filed letter from:|
Chief Dep. State Public Defender Helft, dated March 14, 2007, re focus issues for oral argument.
|Mar 16 2007||Filed letter from:|
Deputy Attorney General Andrew Mestman, dated March 15, 2007, re focus issues for oral argument.
|Mar 16 2007||Filed:|
"Declaration of Service" of appellant's focus issues letter.
|Mar 20 2007||Filed:|
"Declaration of Service" of respondent's focus issues letter.
|Mar 22 2007||Received:|
letter from Deputy Attorney General Andrew Mestman, dated March 21, 2007, re additional authorities for oral argument.
|Mar 22 2007||Received:|
letter from Chief Dep. State Public Defender Barry Helft, dated March 22, 2007, re additional authorities for oral argument.
|Apr 2 2007||Cause argued and submitted|
|Jun 29 2007||Notice of forthcoming opinion posted|
|Jul 2 2007||Opinion filed: Judgment affirmed in full|
Majority Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Chin, & Corrigan, JJ. Concurring Opinion by Werdegar, J.
|Aug 2 2007||Remittitur issued (AA)|
|Aug 3 2007||Exhibit(s) returned|
to the superior court.
|Aug 9 2007||Received:|
receipt for remittitur acknowledged by superior court.
|Aug 13 2007||Received:|
receipt for exhibits returned to superior court.
|Sep 21 2007||Received:|
copy of letter from U.S.S.C. dated September 17, 2007, application for extension of time to file a Petition for Writ of Certiorari extended to November 15, 2007. (App. No. 07A230)
|Nov 15 2007||Received:|
copies of: Petition for a Writ of Certiorari, Motion for Leave to Proceed in Forma Pauperis; Certificate of Service for U.S.S.C. app. no. 07A230.
|Nov 26 2007||Received:|
Letter dated 11/21/07 from U.S.S.C. advising that the petition for writ of certiorari was filed November 14, 2007, case no. 07-7770.
|Dec 20 2007||Received:|
copy of: Brief in Opposition to Petition for Writ of Certiorari sent to the U.S.S.C. by the respondent, case no. 07-7770.
|Jul 2 2008||Compensation awarded counsel|
|Oct 29 2008||Compensation awarded counsel|
|Jan 26 2009||Compensation awarded counsel|
|Jun 29 2009||Certiorari denied by U.S. Supreme Court|
|Nov 5 2004||Appellant's opening brief filed|
|Jun 1 2005||Respondent's brief filed|
|Apr 20 2006||Appellant's reply brief filed|