Supreme Court of California Justia
Docket No. S029550
People v. Holloway

Filed 6/17/04



Plaintiff and Respondent,






Defendant and Appellant. )





A jury convicted defendant Duane Holloway of first degree murder (Pen.

Code, § 187, subd. (a))1 in the deaths of Debra Ann Cimmino and Diane Renee

Pencin, attempted rape (§§ 261, 664) of Cimmino, and burglary (§ 459) of the

victims’ joint residence. The jury found true special circumstance allegations of

multiple murder (§ 190.2, subd. (a)(3)), murder (of Cimmino) in the commission

of attempted rape (§ 190.2, subd. (a)(17)), and murder (of Pencin) in the

commission of burglary (ibid.). The jury also found defendant had personally

used a knife (§ 12022, subd. (b)) in the murder of Pencin. After a penalty trial, the


All statutory references are to the Penal Code unless otherwise indicated.

jury returned a verdict of death. The court denied the motion for modification of

the penalty verdict and entered judgment accordingly.2

This appeal from the resulting judgment is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.


Guilt Phase Evidence


Debra Cimmino and Diane Pencin, half sisters who shared a Sacramento

townhouse, were killed in the early morning hours of Sunday, March 20, 1983.

Diane was found the next day in her bedroom, dead of stab wounds and

strangulation. Debbie, also strangled, was found in her car, which was parked

outside the townhouse. The principal evidence against defendant consisted of his

fingerprints inside the townhouse and Debbie’s car; pubic and other hairs found at

the crime scene that were consistent with defendant’s hairs and inconsistent with

the victims’; defendant’s initial false exculpatory statements to police, including

an attempt to manufacture an alibi; and his eventual partial admission to presence

at the crimes.

At the time of their deaths in 1983, Diane Pencin was 32 years old and

Debbie Cimmino was 20. Both were single, Diane having been married and

divorced, and they lived alone in the townhouse, which Diane owned. Lorie

Cimmino, their mother, and Michael Cimmino, Debbie’s father and Diane’s

stepfather, lived about a block away. A third sister, Janet Williams, also lived in


A previous trial on the same charges produced the same verdicts of guilt

and a penalty of death, but this court reversed the judgment because of juror
misconduct during the guilt phase of trial. (People v. Holloway (1990) 50 Cal.3d
1098, 1103.)


Sacramento, and her 10-year-old daughter, Michelle, visited Diane and Debbie

frequently, including on the weekend of their deaths. Diane and Debbie were

security conscious, locking their front door even when they were home and setting

their burglar alarm at night.

On Saturday, March 19, Michelle Williams, who had spent Friday night at

Diane and Debbie’s townhouse, helped Debbie wash her car. They cleaned the

automobile thoroughly, inside and out, wiping the back window with Windex and

the interior surfaces with Armor All. Diane took Michelle home around 3:00 p.m.,

then went to a movie with Michael Cimmino. Diane dropped Michael off after the

film and spoke to him by telephone around 6:00 p.m., saying that instead of

having dinner with him as planned, she would rather stay home and watch some


Sherilyn Hoye, a friend of Debbie’s, spent around two hours on Saturday,

March 19, from 9:00 p.m. to 11:00 p.m., at the townhouse with Debbie, mostly in

her bedroom. Debbie, who was wearing beige shorts and a red and white top, had

just finished cleaning the bedroom before Hoye’s visit. About 11:30 p.m., Lorie

Cimmino telephoned the townhouse and spoke with Debbie, who said she had

polished her nails and cleaned the townhouse that evening, that she was tired and

going to bed, and that Diane was already in bed; Lorie could also hear Diane’s

voice in the background.

On Sunday, March 20, Hoye and two other friends of Debbie tried

repeatedly to reach Debbie at home by telephone, but no one answered the phone.

Debbie’s body was discovered in her car, which was parked in a carport next to

the townhouse, on the morning of Monday, March 21, by a concerned friend of

both sisters who learned Debbie had not shown up at work and could not be

reached by telephone. The friend also noticed two newspapers, including a

Sunday paper, on the front doorstep. Police were called and dispatched about


10:00 a.m.; the first officer on the scene discovered Diane’s body inside the

townhouse, and saw Debbie’s in her car.

Debbie Cimmino’s body lay on the backseat of her car, clothed only in a

red and white top. Various other items, including a parka, a robe and a blanket,

covered the body. Debbie’s purse and its contents were scattered on the front

passenger floor. On the back floor were a pair of jogging shoes, a pair of socks,

jeans, and black panties. Near the victim’s feet, a plastic piece of the seat structure

was cracked through.

According to the autopsy pathologist, the cause of Debbie’s death was

manual strangulation. This was shown, inter alia, by petechia on her eyelids and

the whites of her eyes, external marks on her neck, and internal hemorrhaging in

her neck and tongue. Though no sperm were detected in swabs taken from

Debbie, there was a quarter-inch tear in the skin at the opening of her vagina and

adjacent bruising, consistent with sexual assault and inconsistent with ordinary

personal hygiene. The pathologist also found defensive wounds and a torn

fingernail on Debbie’s hands and a bruise on her forearm.

Diane Pencin was found lying on her back on her unmade bed. She was

nude, though her mother testified she always slept in a nightgown or long shirt. A

bloodstained pillow, a torn pillowcase, and one part of a telephone without its

cords lay on the bed as well. Under Diane’s body were several identification cards

belonging to Debbie. A pair of red panties was tucked between the mattress and

the bed frame. Elsewhere in the room were found another piece of the torn

pillowcase, this one knotted; the remaining portion of the telephone, also without

cords; two knives, one with visible blood on it; a damp bloodstained dishcloth; and

blood spots on the wall.

The pathologist opined Diane had died of both stabbing and strangulation.

In Diane’s case, strangulation was with a ligature, which could have been a


straight telephone cord. Ligature strangulation was shown by petechia, her dark

and puffy face, and the pattern of straight, narrow wounds to her neck. Apparent

ligature marks were also on her wrists and ankles. Diane had been stabbed with a

knife or similar weapon at least five times in the upper abdomen, including

wounds to the heart and liver; some of the wounds were apparently aggravated by

the weapon having been partially withdrawn and thrust back in at different angles

in the same area. There was no physical evidence of sexual assault.

The telephone in the townhouse kitchen was on the floor, missing its flat

cord. In the bathroom, several wet towels were lying around the sink, a condition

uncharacteristic of Debbie and Diane’s housekeeping. Debbie’s bedroom

disclosed no sign of a struggle, though a knife was found under the pillow. The

telephone was in working order. Two telephone cords were later found under the

bottom sheet on Debbie’s bed: one a flat cord with a small amount of blood on it,

the other coiled, with fibers matching those on the floorboard of Debbie’s car.

The front door to the townhouse was unlocked, and there were no signs of forced


Defendant’s latent fingerprints were found on the telephone body and

receiver in Diane Pencin’s bedroom, as well as on the doorjamb of that room.

Defendant’s prints were also found at several places on the exterior of Debbie

Cimmino’s car (along with latent prints belonging to others, identified and

unidentified) and on the interior backseat surface, above the victim’s body, with

the fingers of the print pointing towards the victim’s head, which was on the

driver’s side of the seat. Three pubic hairs, one combed from Debbie’s pubic hair

and two found on a robe found in her car, showed characteristics consistent with

the microscopic appearance and structure of defendant’s pubic hairs but

inconsistent with Debbie’s. Two scalp hairs the criminalist described as “Negro”

were found on a blanket covering Debbie’s body; Debbie was excluded as the


donor of these hairs, but defendant (who is African-American) could not be

excluded. When arrested on March 22, 1983, defendant had several scratches on

his abdomen, which he said he had incurred playing handball the previous day.

On Monday, March 21, 1983, in the initial police investigation of the

deaths, Debbie Cimmino’s friends and mother mentioned defendant as an

acquaintance of Debbie. Officers Hash and Dean contacted defendant that

evening. He was cooperative, giving the officers a taped interview and supplying

them with fingerprint samples. According to defendant’s statement on March 21,

he knew Debbie Cimmino from high school, where they had been friends. They

corresponded during a period he spent away from Sacramento and on his return

renewed their friendship. Defendant was not Debbie’s lover, though he would

have liked to have been. He had been in Diane and Debbie’s townhouse many

times, including both bedrooms. Defendant’s father lived very close to the

townhouse, but defendant himself lived with his mother elsewhere in Sacramento.

In the March 21 interview, defendant said that he spent Saturday night,

March 19, with a friend, Robert Cruz, and Cruz’s friends, watching television at

Cruz’s home, drinking (though defendant abstained), and driving around

Sacramento. He slept on Cruz’s couch from around 4:00 a.m. to 6:30 a.m.

Sunday, then Cruz dropped him off at his mother’s house around 7:00 a.m., where,

after his mother let him in, he slept until about 2:00 p.m. that day.

Questioned late on the night of March 21, Robert Cruz confirmed

defendant’s alibi, telling officers he had dropped defendant at defendant’s

mother’s house around 8:00 a.m. on Sunday, March 20. The following morning,

however, Cruz, troubled, told the detectives he had provided defendant a false

alibi at defendant’s direction; in fact, he had dropped defendant at his fathers

home, near the crime scene, about 4:00 a.m. on Sunday. Defendant had called

him later that morning and directed that if anyone were to ask, Cruz should say he


left defendant at his mother’s at 8:00 a.m. After confessing his earlier falsehood,

Cruz, at the detectives’ direction, made a monitored telephone call to defendant.

When Cruz began to ask defendant about the false alibi, defendant cut him off and

asked him to come by later so defendant could “show [him] something.” Cruz

also contradicted defendant’s statement that he did not drink any alcohol Saturday


On Tuesday, March 22, detectives detained defendant, who said he was on

his way to see them, as he was leaving his house. At the station, defendant was

advised of and waived his Miranda rights.3 He now admitted that Cruz had in fact

dropped him at his father’s home between 3:00 and 4:00 a.m. He also admitted he

had been drinking that night with Cruz and his friends, but claimed he was not

drunk and was in control of himself. When defendant realized his father was not

home, he walked to a nearby Circle K convenience store and telephoned his

mother’s house for a ride home; defendant, however, also admitted that before

Cruz dropped him off he noticed his father’s van was not in the driveway. No one

answered at his mother’s house. He also called a friend who lived in the

neighborhood, Lorenzo Chuidian, but got no answer there either. Defendant

initially said he thought about calling Debbie, but knew she would be in bed; later

he said he had called the Pencin-Cimmino home but no one answered. While at

the Circle K, defendant heard a scream and the sound of glass breaking. Afraid

that he would be associated with a possible crime because of his proximity, he

later told Cruz to say he had dropped defendant off at his mother’s house rather

than his father’s.


Miranda v. Arizona (1966) 384 U.S. 436.


Defendant continued, despite extended questioning and confrontation with

fingerprint evidence, to insist he had not gone to the townhouse on Sunday

morning. Eventually, though, as the detectives purported to begin filling out an

arrest report and booking him, defendant admitted he had drunk enough beer and

tequila to get drunk, that from his father’s he “went over to [Debbie’s] house,” and

that he remembers her “screaming” in the carport. He further said he “think[s]”

both women answered the front door, he told them he was stranded and may have

used their telephone, and that although he did not know what happened next, “I

remember being in the house. I remember being in the carport. I remember, I

remember Debbie screaming.” Asked how he stopped her from screaming,

defendant said he did not know.


Defendant testified in his own behalf, giving a version of events different

from either of his statements to police. According to his testimony, defendant and

Debbie had become lovers shortly after his return to Sacramento and remained so

up until her death. They had made love in her bedroom and in her car. The last

time was about a week before Debbie’s death, in her bedroom; she was wearing

her robe (in which a pubic hair consistent with defendant’s was later found). He

lied to the police in order to minimize their relationship.

On the morning of March 20, after drinking and smoking marijuana with

Roberto Cruz and his friends, defendant asked Cruz to take him home, but Cruz

drove to defendant’s father’s house instead. About 4:30 a.m., defendant was

walking to the Circle K store when he heard a scream. He telephoned Debbie’s

house, but got no answer. He decided to go to Chuidian’s house, but first he

looked over a fence into the carport by Diane and Debbie’s townhouse to see if

Debbie’s car was there. It was, with the passenger door open. Defendant hopped


the fence and looked in the car, discovering Debbie’s body under a pile of clothing

in the backseat.

After trying but failing to revive Debbie, defendant testified, he entered the

townhouse through the unlocked front door and walked down the hallway to

Diane’s room, calling her name. After turning on a light and finding Diane’s body

on her bed, he picked up the phone to call for help, then realized the receiver was

not connected to the phone. He tried the kitchen telephone, but its receiver was

missing, so he left. He stopped back at the car to confirm what he had seen, then

walked home to his mother’s house. On the way he stopped at a pay phone and

considered calling the police, but decided it was better not to let them know he had

been in the vicinity of the crimes at all. Arriving home around 8:00 a.m., he called

Cruz and told him to say he had dropped defendant at his mother’s house. He lied

to the police because he thought it would increase their suspicion of him if he

admitted having found the bodies. He told the police, on March 22, that he heard

Debbie screaming because by then he knew it had been she who screamed; he said

both women came to the door because “that’s how I wanted them to be last time I

seen them alive.”

The defense also presented evidence of third party culpability. Zelma

Cureton, who in 1983 was working as a prostitute in Reno, Nevada, testified that

one night in March she encountered two Black men, acquaintances of Cureton’s

friend Marfield “Sweeper” Davis, who boasted about having killed two women in

Sacramento. One man was short and muscular, the other taller; both were wearing

trench coats. While in the bar of the Cal-Neva casino, Cureton heard the shorter

one say, “She almost got away,” and “It’s a good thing we took showers

afterwards.” The taller man did not respond. Later, the men came to Davis’s

apartment, where Cureton was spending the night. Cureton learned the shorter

man was called “Booker” and the taller was “The Frisco Kid.” Booker, who was


wearing a blood-splattered T-shirt under his coat, said they had killed two half

sisters in Sacramento, that the victims “preferred females,” that one of them “had

the door of the car almost locked” and he “got there just in the nick of time,” and

that one woman was stabbed while the other was strangled in the bedroom. The

Frisco Kid was mostly quiet. The men stayed at Davis’s apartment for a day and a

half, leaving early Tuesday morning.

Cureton testified she reported the conversations to a Detective Soristo of

the Reno Police Department on Monday morning. Soristo wrote a report of her

information, but she never heard anything more from the Reno or Sacramento

police about the matter.

Soristo did not testify, but another Reno Police Department detective, Gary

Eubanks, testified that sometime in March 1983 he relayed information the swing

shift detectives had received from Cureton to Harry Machen at the Sacramento

County Sheriff’s Department. Eubanks was asked to follow up and amplify or

clarify this “vague” information; he subsequently conveyed to Sacramento the

further information, which came from a male informant, that the supposed

Sacramento killing involved only one victim, a cocktail waitress. The Sacramento

Sheriff’s Office then told Eubanks they had resolved their case by an arrest and

that no further investigation would be needed in Reno.

Eubanks also testified that he considered Cureton an unreliable informant

and that in a recent homicide case she had voluntarily come forward with

information later discredited by a suspect’s arrest and confession. Another Reno

homicide detective testified that in 1990 Cureton had come forward with

information on an investigation, but had later admitted lying about it.

In 1991 interviews with a defense investigator, Cureton twice identified

photographs of one Izear Bookman as showing the short, muscular man she had

known as Booker. In 1983, Izear Bookman lived across the street from the


Pencin-Cimmino townhouse. He was interviewed by police in their initial canvass

of the neighborhood on Monday, March 21, 1983, about 3:00 p.m.

Traci Bradley and Sherilyn Hoye, both friends of Debbie Cimmino,

testified they had seen two or three African-American men across from Diane and

Debbie’s townhouse, in the period before the killings. Bradley remembered they

were wearing trench coats. Bradley, herself African-American, also testified she

was Debbie’s lover at the time of her death and had been so for several months.

They last made love on Friday, March 18, at Debbie’s home.

Shari Drago testified she had been defendant’s girlfriend in high school, but

broke up with him after he left town. Debbie Cimmino later told her that she and

defendant had been corresponding and would be seeing each other when defendant

returned to Sacramento.

The latent fingerprint of one Lance Reedy was found on the doorjamb of

Debbie’s bedroom. Reedy’s parents had lived nearby in the 1970’s.

Prosecution Rebuttal

Juanita Seibel testified she was a longtime, close friend of Debbie

Cimmino, continuing to Debbie’s death. While Debbie typically was physically

affectionate with her boyfriends, Seibel observed no such affectionate behavior

between Debbie and defendant. About two months before her death, Debbie told

Seibel she and defendant were just friends.

In June 1992 (about two weeks before her trial testimony), Zelma Cureton

told a district attorney’s investigator that the men she met in Reno had arrived on a

Friday evening and left on Monday or Tuesday.


Penalty Phase Evidence


The prosecution introduced evidence of two prior assaults by defendant on

women. Linda Carter, who in 1976 lived in the same apartment complex as

defendant’s family, testified that she awoke one morning that year to find

defendant standing in her kitchen. When Carter, angry, ran toward defendant, he

hit her in the head with his fist. As they struggled, defendant struck her twice

more with a wooden club about a foot long, causing serious wounds to her face

and the back of her head. Eventually defendant ran out the front door.

Roxie Bianchi testified that around 7:30 p.m. one evening in 1979,

defendant, a childhood friend of her son Greg (who no longer lived in Sacramento

with her), unexpectedly visited her at her home. They talked about Greg for a

while, and defendant left. He returned later that night, around 9:30 or 10:00 p.m.,

saying he did not feel well and asking to use her bathroom. Later he said he had a

headache, and Bianchi gave him some aspirin. They talked and watched television

for a while more in her living room. Finally Bianchi suggested he leave, as it was

getting late. As she led defendant to the door, she felt a heavy blow to the back of

her head, then a second blow. As she turned, defendant struck her twice more on

the head. Bianchi was bleeding profusely and screaming. She exclaimed that

defendant was trying to kill her and said she was calling the police. Defendant

asked her not to and left. In the hallway, Bianchi found a claw hammer that did

not belong to her. In 1980, defendant suffered a conviction for assault with a

deadly weapon as a result of this incident.

Finally, a Sacramento police officer testified that, in 1979, he and his

partner had detained defendant while investigating a possible warehouse burglary.

Defendant, who was inebriated, cursed at the officers, tried to kick the windows


out of their squad car, and kicked the testifying officer in the leg; he was then

subdued with mace and taken to county jail.


Dorothea Holloway, defendant’s mother, testified she ran away with Walter

Holloway when she was 17 years old. They had four children together, defendant

being the eldest. Walter did not provide for his family, had many affairs with

other women, and physically abused Dorothea and the children. Defendant, given

alcohol by his father, began drinking when he was about 10 years old.

Defendant’s brother and two sisters testified defendant was a loving and protective

brother, that Walter Holloway gave him alcohol and drugs at a young age, that

Walter struck defendant and abused Dorothea in front of defendant, and that

Walter took defendant, as a youth, to the homes of women with whom he was

having affairs.

A former classmate of defendant testified to defendant’s early drug and

alcohol use, to Walter Holloway having provided these substances to a group of

girls defendant’s age, and to Walter’s practice of flirting with girls in defendant’s

peer group in a domineering manner calculated to humiliate his son. Dorothy

Walton, with whom Walter had a daughter, similarly testified to seeing Walter

take over a conversation defendant was having with girls his age. A local park

worker and counselor who knew both defendant and his father confirmed that

Walter’s philandering was well known in the neighborhood and that Walter was

involved with teenage girlfriends of defendant.

A former neighbor of defendant, Sylvia Wesner, remembered him as

reserved, quiet and inquisitive. At one point, when there was a rash of break-ins in

the apartment complex, defendant volunteered to stay up all night watching her


apartment. He stood guard for several nights, until Wesner felt the danger had


Psychologist Shawn Johnston, who conducted interviews and testing on

defendant, reviewed background reports, and interviewed defendant’s family

members, opined that Walter Holloway “should have never had children,” and that

his behavior had a very negative impact on defendant’s personality development,

causing problems including depression, suppression of intelligence, and impaired

impulse control. Johnston noted a “dramatic” increase in defendant’s intelligence

quotient (from 100 to 112) over the 15 months he had conducted testing, while

defendant was in county jail. Defendant had begun to crave knowledge and to

read books on history, politics and religion. He expressed the feeling that he had

wasted his life by doing bad things and expressed remorse for those he had hurt.

He successfully took on responsibilities as a trustee at the jail.4 Because of this

intellectual and psychological growth, Johnston believed, defendant would adjust

well to prison if sentenced to life imprisonment without possibility of parole.

A correctional consultant, James Park, described the high security and

confined living conditions of a California prisoner serving a life sentence without

possibility of parole. In Park’s experience, long-term prisoners are in demand for

work assignment and can be a stabilizing influence in the prison, and many people

who were bad citizens in the outside community become more productive and

useful people in the highly structured prison community. Based on his review of

defendant’s Department of Corrections file and the testimony of the two jail


Two deputy sheriffs testified defendant had succeeded as an inmate worker

while awaiting trial; he had no disciplinary infractions at the jail and was a reliable


sheriffs who had employed defendant as an inmate worker, defendant would make

a very good life prisoner and would contribute positively to the prison community.


Guilt Phase Issues

I. Failure to Suppress Admissions in Defendant’s March 22 Statement

In his statement to police on March 22, 1983, defendant admitted he went

to the Pencin-Cimmino residence early on the morning of March 20, that he was

drunk at the time, that both women answered the door, that he told them he was

stranded, that he may have used their telephone, and that all he remembers after

that is “Debbie screaming” in the carport. Defendant contends those admissions

should have been suppressed as involuntary because they were induced by an

implied threat of capital prosecution if he did not admit the killings and a

corresponding promise of leniency if he did. We find no such improper threat or


In the March 22 interview, defendant readily admitted that, contrary to his

previous day’s statement, he was in the neighborhood of the Pencin-Cimmino

residence on the morning of the crimes, but denied that he went to the townhouse

or saw the victims that morning. He persisted in that denial despite long and

vigorous questioning by Sacramento Sheriff’s Detectives Michael Hash and

Joseph Dean, who repeatedly accused him of lying, confronted him with evidence

contrary to his story, and suggested that he may have gone over to the townhouse

without malicious intent, just to see Debbie and get a ride home, and that he might

have killed Debbie accidentally. Detective Hash warned defendant he was, by

denying any involvement, “digging a hole so deep that you’re never gonna see

your way out of it” and suggested again that defendant went to see Debbie without

any intent to harm her, but “something happened,” she started struggling, perhaps


yelling, and “you got her around the throat. Tried to get her to stop. She wouldn’t


Detective Dean then began asking defendant routine booking questions,

which Hash interrupted by once more suggesting that the killings may have been

accidental but that if defendant did not say so, “with the evidence we got, you’re

gonna be found guilty.” Defendant argued, “Even if it was an accident, it’s still

murder.” Hash said, “No, not really.” The exchange continued as follows:

“Hash: What I’m talking about is I wanta, I want you to understand

something. We’re talking about a death penalty case here.

“Holloway: I know.

“Hash: No ifs, ands or buts. The truth cannot hurt you, if it’s known. The

longer you sit there and not say anything and you just ride with it, and you’re just,

you’re gone. [¶] Was it an accident?

“Holloway: I didn’t kill Deb and Diane.” (Italics added.)

Hash again warned defendant that with the evidence they had and were

acquiring “[y]ou’re biting the bull for the whole thing,” but defendant once more

answered, “I didn’t do it.” The detectives then continued with the booking

process, beginning their arrest report and having defendant empty his pockets.

Finally, Hash made another appeal:

“Hash: For god’s sake man, if you blacked out and you didn’t realize what

was happening. You lost control of your temper, whatever. . . .

“Holloway: What difference would that make?

“Hash: It makes a lot of difference. Makes a lot of difference. Difference

between someone gone, going over to do something intentionally before you can

get that, I’ll go over and do this crime. There’s a hell of a difference. [¶] . . . [¶]

“Hash: If that’s how it was, Duane, say so. . . .


“Holloway: I didn’t say ah. . . I did, I drank more than I said I did.” (Italics


Defendant then went on to make the other admissions previously noted.

The trial court denied defendant’s suppression motion regarding the

challenged admissions in his March 22 statement, finding the statement voluntary:

“Defendant made a voluntary, knowing and intelligent Miranda Waiver before

questioning began. [¶] Although the questioning was extended, it does not appear

to the Court from listening to the tape that any psychological impact on defendant

was such as to overbear his will to resist . . . . [¶] Defendant sounded relaxed and

cooperative. The questioning was not overly aggressive or accusatory. [¶] Again,

it appears that defendant was attempting to use the interview as much as the


“The Fourteenth Amendment to the federal Constitution and article I,

section 15, of the state Constitution bar the prosecution from using a defendant’s

involuntary confession. [Citation.] [These provisions] require[] the prosecution to

establish, by a preponderance of the evidence, that a defendant’s confession was

voluntary. . . . [¶] Under both state and federal law, courts apply a ‘totality of

circumstances’ test to determine the voluntariness of a confession. . . . On appeal,

the trial court’s findings as to the circumstances surrounding the confession are

upheld if supported by substantial evidence, but the trial court’s finding as to the

voluntariness of the confession is subject to independent review. [Citations.] In

determining whether a confession was voluntary, ‘[t]he question is whether


The court granted the motion as to statements made later, after defendant

asked to see an attorney.


defendant’s choice to confess was not “essentially free” because his will was

overborne.’ ” (People v. Massie (1998) 19 Cal.4th 550, 576.)

Here, there is no dispute as to the historical facts, no claim of physical

intimidation or deprivation, and no assertion of coercive tactics other than the

contents of the interrogation itself.6 When detained at his house, defendant was in

the process of seeking out the detectives. Aware his alibi had collapsed, he

wanted to tell the detectives why he had asked Cruz to lie about his whereabouts.

Before being interviewed, defendant was fully advised of his rights and voluntarily

waived them; at no point in the challenged portion of the interview did he indicate

any reluctance to cooperate with the investigation or any desire to end the

interview. The only question, which this court must answer independently, is

whether the detectives’ mention of a possible death penalty and suggestions that

defendant would benefit from giving a truthful, mitigated version of the crimes—

passages italicized in the transcript quotes reproduced above—constituted implied

threats and promises of leniency sufficient to render the subsequent admissions


“It is well settled that a confession is involuntary and therefore inadmissible

if it was elicited by any promise of benefit or leniency whether express or implied.

[Citations.] However, mere advice or exhortation by the police that it would be

better for the accused to tell the truth when unaccompanied by either a threat or a

promise does not render a subsequent confession involuntary. . . . Thus, ‘[w]hen

the benefit pointed out by the police to a suspect is merely that which flows


In his reply brief defendant suggests his subdued tone on the interview tape

“does indeed sound like fear,” but does not argue he was afraid of his interrogators
as opposed to apprehensive regarding his future; nor does he contend the
detectives did or said anything to place him in personal fear of them.


naturally from a truthful and honest course of conduct,’ the subsequent statement

will not be considered involuntarily made. [Citation.] On the other hand, ‘if . . .

the defendant is given to understand that he might reasonably expect benefits in

the nature of more lenient treatment at the hands of the police, prosecution or court

in consideration of making a statement, even a truthful one, such motivation is

deemed to render the statement involuntary and inadmissible. . . .’ ” (People v.

Jimenez (1978) 21 Cal.3d 595, 611-612, overruled on other grounds in People v.

Cahill (1993) 5 Cal.4th 478, 510, fn. 17.)

“Once a suspect has been properly advised of his rights, he may be

questioned freely so long as the questioner does not threaten harm or falsely

promise benefits. Questioning may include exchanges of information, summaries

of evidence, outline of theories of events, confrontation with contradictory facts,

even debate between police and suspect. . . . Yet in carrying out their

interrogations the police must avoid threats of punishment for the suspect’s failure

to admit or confess particular facts and must avoid false promises of leniency as a

reward for admission or confession. . . . [The police] are authorized to interview

suspects who have been advised of their rights, but they must conduct the

interview without the undue pressure that amounts to coercion and without the

dishonesty and trickery that amounts to false promise.” (People v. Andersen

(1980) 101 Cal.App.3d 563, 576.)

We conclude the detectives in this case did not cross the line from proper

exhortations to tell the truth into impermissible threats of punishment or promises

of leniency. In telling defendant that “[w]e’re talking about a death penalty case

here,” Detective Hash said nothing beyond the obvious, for the crime—the murder

of two young women, in their home, with signs of sexual assault—was a clear

candidate for capital prosecution. This was not news to defendant, who

responded, “I know.” As we have explained, moreover, “a confession will not be


invalidated simply because the possibility of a death sentence was discussed

beforehand” (People v. Ray (1996) 13 Cal.4th 313, 340), but only where the

confession results directly from the threat such punishment will be imposed if the

suspect is uncooperative, coupled with a “promise [of] leniency in exchange for

the suspect’s cooperation” (ibid.).

Hash’s further suggestions that the killings might have been accidental or

resulted from an uncontrollable fit of rage during a drunken blackout, and that

such circumstances could “make[] a lot of difference,” fall far short of being

promises of lenient treatment in exchange for cooperation. The detectives did not

represent that they, the prosecutor or the court would grant defendant any

particular benefit if he told them how the killings happened. To the extent Hash’s

remarks implied that giving an account involving blackout or accident might help

defendant avoid the death penalty, he did no more than tell defendant the benefit

that might “ ‘flow[] naturally from a truthful and honest course of conduct’ ”

(People v. Jimenez, supra, 21 Cal.3d at p. 612), for such circumstances can reduce

the degree of a homicide or, at the least, serve as arguments for mitigation in the

penalty decision. As the appellate court explained in People v. Andersen, supra,

101 Cal.App.3d at page 583, “Homicide does possess degrees of culpability, and

when evidence of guilt is strong, confession and avoidance is a better defense

tactic than denial.”

Defendant began the March 22 interview with the intent merely of

explaining why he had asked Cruz to provide him with a false alibi. In the course

of their interview, the detectives made defendant aware of some of the evidence

they possessed against him, particularly fingerprints indicating defendant’s recent

use of a telephone in the townhouse and recent presence in Debbie Cimmino’s car.

They also, by beginning the booking process, made clear to defendant that his

complete denial would not save him from arrest and probable prosecution for the


killings. At that point, defendant made limited admissions to his presence at the

scene at the time of the crimes, while laying the groundwork for a possible claim

of mitigation based on intoxication. As the trial court remarked, “it appears that

defendant was attempting to use the interview as much as the officers.” The

interview in this case is better characterized as a “dialogue or debate between

suspect and police in which the police commented on the realities of [his] position

and the courses of conduct open to [him]” (People v. Andersen, supra, 101

Cal.App.3d at p. 583) than as a coercive interrogation.

The decisions upon which defendant principally relies, People v. McClary

(1977) 20 Cal.3d 218 (overruled on other grounds in People v. Cahill, supra, 5

Cal.4th at p. 510, fn. 17), People v. Johnson (1969) 70 Cal.2d 469, and People v.

Cahill (1994) 22 Cal.App.4th 296, are all distinguishable factually:

In People v. McClary, the officers ignored repeated requests from the 16-

year-old suspect for assistance of counsel, falsely told her she would face the death

penalty unless she changed her statement, and strongly implied she would be

charged only as an accessory if she admitted mere “ ‘knowledge’ ” of the murder.

(People v. McClary, supra, 20 Cal.3d at p. 229.) Here, we have no such insistent

overriding of a defendant’s invocation of rights, no false representation regarding

the death penalty, and no promise of a particular charge or other particular lenient

treatment in exchange for cooperation.

In People v. Johnson, the defendant was advised by one interrogator that

any information he gave would only be an investigative aid and “was not

admissible in court”; another interviewer neglected to include the right to remain

silent in his advisements, the defendant was never asked if he waived the right to

counsel, and the record did not contain an affirmative showing he agreed to waive

any of his rights. (People v. Johnson, supra, 70 Cal.2d at p. 474.) No such

circumstances are present in this case. At the outset of the taped interview,


defendant was fully advised of, and expressly waived, his rights to counsel and

against self-incrimination.

Finally, in People v. Cahill, the interrogator gave the defendant a detailed,

but “materially deceptive” (People v. Cahill, supra, 22 Cal.App.4th at p. 315)

account of the law of homicide. In particular, the detective led the defendant to

believe he could avoid a first degree murder charge, in a burglary-murder case, by

admitting to an unpremeditated role in the killing. (Id. at pp. 306, 314-315.) Here,

the detectives gave defendant no such misleading assurances. No specific benefit

in terms of lesser charges was promised or even discussed, and Hash’s general

assertion that the circumstances of a killing could “make[] a lot of difference” to

the punishment, while perhaps optimistic, was not materially deceptive.

The line “can be a fine one” (People v. Thompson (1990) 50 Cal.3d 134,

169) between urging a suspect to tell the truth by factually outlining the benefits

that may flow from confessing, which is permissible, and impliedly promising

lenient treatment in exchange for a confession, which is not. But considering all

the circumstances of this case, we do not believe the detectives crossed that line by

mentioning a possible capital charge or suggesting that defendant might benefit in

an unspecified manner from giving a truthful, mitigated account of events.

II. Lack of Miranda Advisements Prior to March 21 Interview

Defendant contends he was held in custody during his interview at the

police station on Monday, March 21, 1983, and should therefore have received

Miranda advisements prior to the interview. He also argues the lack of

advisements and what he characterizes as the accusatory content of the interview

rendered his March 21 statement (consisting primarily of his false alibi)

involuntary, and that both that statement and the following day’s (assertedly a

product of the false alibi’s collapse) should be suppressed on that ground as well.


Having learned through neighborhood canvassing and contact with the

victims’ mother that defendant was a possible boyfriend or would-be boyfriend of

Debbie and discovering that he was on parole for an assault, Sheriff’s Detectives

Dean and Hash attempted, on the evening of March 21, to contact defendant

through the Sacramento area parole offices. From a central office, the fact that

sheriff’s detectives wanted to talk to defendant was relayed to Willard Stinnett, the

lone parole agent on duty at the local office where defendant was scheduled that

evening for drug and alcohol testing. When defendant arrived about 6:00 p.m.,

Stinnett handcuffed him to avoid any possible violence, then telephoned the

detectives and talked with Dean.

According to Dean, he told Stinnett that he and Hash wanted to talk to

defendant and would leave their office for the parole office immediately. He

asked if defendant would still be there when they arrived, and Stinnett assured him

he would. Stinnett testified he told Dean he had defendant in his office and would

remain with him until the detectives got there. Dean said it would take them 15 or

20 minutes and asked if Stinnett would wait; Stinnett said he would. He did not

think he told the detectives he had handcuffed defendant. Hash remembers Dean

asking Stinnett if there were some way he could delay defendant’s testing so he

would still be at the parole office when the detectives got there.

Arriving at the parole office, the detectives were surprised to find defendant

in handcuffs. According to Hash and Stinnett, Stinnett immediately released

defendant at the request or suggestion of one of the detectives; according to Dean,

he himself uncuffed defendant, announcing there had been a mistake: they were

there only to talk to defendant, not to arrest him.7


Defendant testified he was left in handcuffs for about 10 minutes after the

detectives arrived. He concedes, however, that this court must defer to the trial

(footnote continued on next page)


The detectives then asked defendant if he knew why they wanted to talk to

him; defendant said he thought it was about the death of his friend Debbie, which

he had heard about that afternoon. They said they would like him to come to the

station for an interview; he could drive himself over or ride with them. Defendant

said the friend who had driven him to the parole office could take him to the police

station, but the friend, who was waiting in the lobby, said he had somewhere else

to be. The detectives then assured defendant he could ride with them and they

would get him a ride home when the interview was completed. Defendant agreed.

Defendant was, according to Hash, patted down before entering the

detectives’ unmarked car. Defendant sat in the backseat, which had no cage or

other divider from the front seat area; the backseat’s doors and windows could be

operated by the occupant in the ordinary way. At the station the detectives took

defendant to an interview room, offering him coffee and the use of a restroom

before the interview began.

In the ensuing taped interview, a detective told defendant they were looking

for the person responsible for the deaths of Debbie and Diane and were collecting

as much information as they could about the victims and their associates. The

officer stated defendant was not under arrest, that he had volunteered to come

down to the station, and he was not handcuffed. Asked if that was correct,

defendant responded, “Yeah.” The detective further explained defendant was not

“per se, the person we feel [is] responsible for the murder,” that in talking to him

they hoped to “eliminate you as a possible suspect,” and that if at some point they

(footnote continued from previous page)

court’s determination that defendant’s testimony was not credible and to its factual
finding that “when the sheriff officers saw the handcuffs they immediately had
them removed.” (See People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)


believed he was “definitely a suspect, that you are the person we should be

focusing on,” they would then advise him of his rights. In his suppression hearing

testimony, Detective Hash confirmed that at this point in their investigation the

police “had no idea who the perpetrator or perpetrators” were, that they treated

everyone as a possible suspect, and that their investigation was not focused on


The detectives questioned defendant, among other things, about his prior

offenses, about whether Cruz would confirm his alibi, and about whether he had

told Debbie she should have sex with him to “let a real man show her what it’s

like.” The interview ended about 9:00 p.m., after which defendant, at the

detectives’ request, took a polygraph examination, was photographed, and gave a

set of fingerprint exemplars. Another officer drove defendant home about 1:00


The trial court, denying defendant’s motion to suppress the March 21

statement, found “defendant was not in custody, was not illegally detained, was

not otherwise deprived of his freedom of action in any significant way, and his

statements on that date were made voluntarily. A Miranda warning was not

required.” The court specifically found that “the sheriff officers did not direct or

otherwise request that [defendant] be handcuffed by the parole officer” and that

“when the sheriff officers saw the handcuffs they immediately had them

removed.” Further, “the objective indicia of an arrest were not present . . . [as]

defendant could have been driven to the police station by his friend, if his friend

had been willing to take him,” and defendant was assured of, and actually given, a

ride home after the interview. Finally, the officers “had not focused on defendant

as a suspect . . . [and] were merely gathering information and making an

investigation,” and “[t]he tape shows that the interview was not confrontational.”

The court concluded that defendant accompanied the detectives to the station and


gave them a self-exculpatory statement not because he felt compelled to do so, but

“because he thought it was in his best interest” to do so.

On both the questions of custody and voluntariness of the statement, we

review the trial court’s findings of historical fact under the deferential substantial

evidence standard, but decide the ultimate constitutional question independently.

(People v. Ochoa, supra, 19 Cal.4th at pp. 401-402; People v. Massie, supra, 19

Cal.4th at p. 576.) Taking the custody question first, we conclude the

circumstances of the March 21 interview did not create any restraint on

defendant’s movement of the degree associated with a formal arrest; a reasonable

person in defendant’s circumstances would not have felt compelled to accompany

the detectives to the station for an interview or to remain there once the interview

began. (People v. Ochoa, supra, at p. 402.)

The undisputed facts are that the detectives did not themselves arrest or

physically restrain defendant, that they requested he come to the station for an

interview but did not demand that he accompany them, and that at the interview’s

outset they confirmed with him that he was being interviewed voluntarily and told

him he was not under arrest or the focus of their suspicion. Substantial evidence,

in the testimony of the detectives and the parole officer, supports the trial court’s

findings that the detectives did not ask for defendant to be handcuffed and did

have him released as soon as they arrived, as well as the findings that defendant

was told he could have his friend drive him to the station if he liked and that he

was promised, and given, a ride home after the interview. This set of facts is

objectively inconsistent with a degree of restraint equivalent to arrest; no

reasonable person would believe under these circumstances that he was compelled

to accompany the officers or to remain with them during the interview.

Defendant argues that as a parolee he would reasonably consider himself a

target for suspicion in the deaths of his acquaintances Debbie Cimmino and Diane


Pencin and would understand his handcuffing by the parole officer as motivated

by police suspicion of him and therefore reasonably believe himself compelled to

accompany the detectives and give them an interview. He further argues the

detectives’ assurance that he was not “per se” a suspect in the killings and that if

he became such they would advise him of his rights was reasonably calculated

only to reinforce the sense of compulsion. In these circumstances, he maintains,

any reasonable person, but especially a parolee, would believe that his rights were

suspended until he could prove his innocence to the detectives’ satisfaction.

We disagree that a reasonable person in defendant’s circumstances, whether

or not a parolee, would believe, once he had been uncuffed and the detectives had

made their request for a station house interview, he was not free to go his own

way. If the detectives intended to keep him in custody until he answered their

questions satisfactorily, a reasonable person would assume, they would have left

him handcuffed and demanded he ride to the station in their car. Nor was the

advisement that defendant was not “per se” a focus of suspicion, that police hoped

to rule him out, and that he would be told if he became a suspect, calculated to

make a reasonable person think he was not free to leave. Rather, a reasonable

person would understand the advisement as indicating an opportunity to be

cleared, at the early stages of an investigation, as a possible perpetrator.

Defendant apparently so understood it, for he cooperated fully and, without

hesitation, proffered the alibi he had fabricated. (See Oregon v. Mathiason (1977)
429 U.S. 492, 493-495 [where defendant voluntarily came to station house for

interview, he was not in custody even though interview took place alone in closed

room and officer told defendant he was suspected of crime]; In re Joseph R.

(1998) 65 Cal.App.4th 954, 956-961 [minor suspected of crime, who was advised

he did not have to speak with officer, then briefly handcuffed and placed in patrol


car while officer conducted another part of investigation, then released from

handcuffs and removed from car before being questioned, was not in custody].)

Nor, turning to the voluntariness question, does the combination of

temporary restraint by the parole officer and the content of the later questioning

support a conclusion that defendant’s will was overborne and his exculpatory

statement coerced. (People v. Massie, supra, 19 Cal.4th at p. 576.) Defendant’s

words and behavior both indicate he voluntarily accompanied the officers to the

station house for an interview, and the detectives’ questions regarding his past

offenses and his supposed sexual remark to Debbie, even coupled with the

acknowledgement he might at some point become a focus of the detectives’

suspicions, were not so accusatory or definitive as to convey a threat of arrest if

defendant declined to give a statement.

III. Effect of This Court’s Prior Decision on Custody Determination

Although, in People v. Holloway, supra, 50 Cal.3d at page 1112, we

reversed defendant’s first conviction for the present crimes on grounds of juror

misconduct, in that decision we also addressed the custody issue regarding the

March 21 statement because “the issue will arise on retrial” (ibid.); we concluded

defendant was not in custody (id. at p. 1115). The parties dispute whether this

portion of our prior decision is law of the case in the present appeal. As the trial

court on retrial reached the same conclusion without reliance on that doctrine, and

as we now do the same, we need not decide whether the law of the case doctrine

applies in these circumstances.

Defendant contends our discussion and conclusion on the custody issue in

People v. Holloway, supra, 50 Cal.3d at pages 1112-1115, deprived him, in

violation of due process principles, of a fair and reliable determination of the issue

on retrial, in that it presented the trial court with an irresistible incentive, in order


to avoid reversal by this court, to make findings of fact and legal conclusions that

accorded with those reflected in our prior decision. The record does not support

this claim. The trial court conducted a full hearing on defendant’s motion to

suppress, at which the testimony of three officers and defendant himself was

heard. After written and oral argument, the court ruled, making detailed findings

regarding the credibility of the witnesses and the facts surrounding the March 21

interview, and drawing from those facts the conclusion defendant was not in

custody at the time of that interview. We reject defendant’s claim as entirely

speculative, for he cites nothing, and we have found nothing in the record,

suggesting the trial court’s findings or decision were influenced by our prior


Citing some purported differences between the detectives’ testimony in the

first suppression motion hearing and that conducted on retrial, defendant also

argues our prior discussion of the custody issue may have improperly influenced

the testimony itself. Again, nothing in the record suggests such an effect. For a

witness to testify somewhat differently on the same topic at sequential hearings is

not uncommon. The remedy for a litigant who believes a witness is trying to

“improve” his or her testimony is, of course, to question the witness about and, if

necessary, impeach the witness with the prior testimony. (See Evid. Code, §§ 770,

780, subd. (h), 1235.) Defendant, who had a full opportunity to cross-examine the

prosecution witnesses at the retrial suppression hearing, was not denied due

process by any changes in their testimony.

IV. Failure to Discharge Juror During Trial

During the guilt trial, Juror No. 3 three times asked, through the bailiff, if

the jury could see photographs of the two victims while alive. After the third

request, the juror was asked to appear before court and counsel, outside the


presence of the other jurors. Asked by the court his reason for wanting such

photographs, the juror responded, “It’s just because dreams and stuff. I have no

faces to put on the girls. All I have is just blackened after she had been strangled,

and the other one I have never seen her face because it’s in the back of the seat.”

On further questioning, he explained that he had “had a few dreams since this trial

started, and like I said, I have two girls without faces that are in there,” and “just

for my own peace of mind” he wanted “something to put together” with the

testimony about the victims and the crime scene and autopsy photos.

The juror denied the dreams had had any “adverse effect” on him, that he

had any question whether he might be acquainted with the victims, or that the lack

of live photos would have “any bearing which way I would vote or anything else.”

He agreed with the court’s characterization of his desire as one for “completion of

the entire picture involving this case.” The court told the juror, “I would assume

that you haven’t discussed this desire on your part with any of the other jurors,” to

which the juror answered, “No,” but the court did not at that time expressly

instruct him not to do so.

After this first interview, the prosecutor noted that he did have photographs

of both victims when alive, but was not sure he would be offering them in

evidence. The court said that all it could do was “to rule upon the admissibility at

the time it arises.” Defense counsel made no comment and did not seek to

discharge the juror. With agreement of both counsel, the court then instructed the

entire jury that only evidence that is relevant and admissible under the Evidence

Code could be presented to them; that the evidence is presented by the parties,

subject to rulings by the court; and that in their eventual deliberations the jurors

were not to discuss matters that had not been introduced into evidence.

During the next court session, an alternate juror revealed that after his

interview with court and counsel, Juror No. 3 had mentioned his request to her,


saying, “I thought it was a reasonable request.” No other jurors or alternates were

present, and the alternate ended the conversation by saying, “I think that would

have to be submitted as evidence,” and walking away. Outside the alternate’s

presence, the prosecutor remarked that even if Juror No. 3 had not been expressly

admonished not to discuss the subject with other jurors, such a prohibition was

implied by the court’s question at the end of the first interview. Defense counsel

agreed, “One might have thought that would be implicit, but evidently not.”

Again questioned by the court, Juror No. 3 said he understood he was not

supposed to talk about the case with other jurors. He apologized, denied he was

dissatisfied with the court’s previous ruling and instructions, and explained that

after his first interview, “they asked me what I had asked for, and I just mentioned

that I had asked to see pictures of the girls. I didn’t figure that was talking about it

or anything else.” The court asked the juror whether “even though we may not . . .

satisfy that desire on your part, whether you could put that out of your mind and

still be a fair juror in this case and not let that affect you in any way in your

decision making.” The juror responded, “Yes.” Asked whether he had discussed

his request with many of the jurors, Juror No. 3 said “it was three or four of them

standing there when they asked me what I had come in for. I mentioned that I had

asked to see pictures. It wasn’t no discussion on it.” He said he now understood

he should “[s]ay nothing.”

After Juror No. 3 left, defense counsel did not move for his discharge or

make any comment on the just completed interview. When the entire jury

reentered, the court, without any objection, admonished all of them that if, during

trial, “it is necessary that the Court occasionally talk to an individual juror” alone,

“please don’t ask that particular juror what it is that he or she is sharing with us at

that point. That would be talking about this case, and it’s something that you’re

not to.”


Defendant contends the trial court abused its discretion and deprived him of

his Sixth Amendment right to an impartial jury in failing to discharge Juror No. 3

after the second interview. We conclude, however, that defendant forfeited this

issue by failing to seek the juror’s excusal or otherwise object to the court’s course

of action. (People v. Majors (1998) 18 Cal.4th 385, 428; People v. Gallego (1990)

52 Cal.3d 115, 188; People v. McIntyre (1981) 115 Cal.App.3d 899, 906; People

v. Wilson (1965) 235 Cal.App.2d 266, 281.) “[H]ad [defendant] made the request

at this time [after the juror was examined] when there was a suggestion of

misconduct on the record, the court could have formally ruled on the matter . . .

and cured the problem,” if any, by excusing the juror and substituting an alternate.

(People v. McIntyre, supra, at p. 906.) Having expressed no desire to have the

juror discharged at the time, and indeed no concern the juror had engaged in

prejudicial misconduct, defendant “is not privileged to make that argument now

for the first time on appeal.” (Ibid.)

Nor does the record establish the court abused its discretion or deprived

defendant of an impartial jury by leaving Juror No. 3 on the panel. (See § 1089

[juror may be discharged if “unable to perform his or her duty”].) The trial court’s

decision whether or not to discharge a juror under section 1089 is reviewed for

abuse of discretion and will be upheld if supported by substantial evidence; to

warrant discharge the juror’s bias or other disability must appear in the record as a

demonstrable reality. (People v. Marshall (1996) 13 Cal.4th 799, 843; People v.

Lucas (1995) 12 Cal.4th 415, 489.) A juror’s misconduct creates a rebuttable

presumption of prejudice, but reversal is required only if there is a substantial

likelihood one or more jurors were improperly influenced by bias. (In re

Hitchings (1993) 6 Cal.4th 97, 118-119; People v. Marshall (1990) 50 Cal.3d 907,



Defendant does not contend the juror’s experience of dreams about the

victims, in itself, made him unable to serve; rather, he argues the juror exhibited

two forms of misconduct: “First, in discussing the case with [the alternate juror],

he violated his oath and the admonition not to so do. . . . Second[], [Juror No. 3]

attempted to conceal his misconduct by asserting, completely contrary to [the

alternate’s] representation, that he did not approach anyone about this, but was

asked himself.” This misconduct, defendant asserts, demonstrates the juror’s bias

against him.

True, the jurors were several times admonished not to discuss “this case”

with outsiders or, until beginning deliberations, even among themselves; Juror No.

3 was further impliedly told, in the first interview, not to discuss his desire for live

pictures of the victims with other jurors. But the juror indicated, in his second

interview, that he had not thought answering the other jurors’ question about the

reason for his first interview violated these admonitions because he did not see

answering the question as “talking about” or “discuss[ing]” these matters. There

was then the following exchange:

“THE COURT: Okay. Fine. They ask you why I brought you in this

morning, don’t discuss—

“JUROR [NO. 3]: Say nothing.

“THE COURT: Okay. All right. And I think I’ll cover that generally

speaking when I bring in the rest of the jurors on that subject.”

As previously noted, the court did then admonish the entire jury not to ask about

or discuss the subject of any interview an individual juror might have with court

and counsel.

The trial court, with an opportunity to observe the juror’s demeanor, could

reasonably have believed from this sequence of events that no deliberate

disobedience to its admonitions had occurred and that its more specific admonition


after the second interview would prevent any further misunderstanding. Counsel

were apparently also of that view, as they made no suggestion that any deliberate

misconduct had occurred.

Nor was it clear that Juror No. 3 was misrepresenting or concealing events

in indicating that he had responded to other jurors’ queries about his first

interview. While the alternate juror had said no other jurors were present when

Juror No. 3 remarked to her, “I thought it was a reasonable request,” it is possible

that remark followed the interchange with other jurors that Juror No. 3 recounted.

The two accounts, therefore, are not necessarily inconsistent.

From the transcript, it appears Juror No. 3 might have been somewhat

frustrated at the prospect that his request would go unanswered and at the court’s

insistence that he not talk about it. The court probed his feelings in that regard to

see if they were so strong as to interfere with his ability to serve, asking whether

Juror No. 3 could still “be a fair juror in this case and not let that affect you in any

way in your decision making.” The juror responded affirmatively, and the court,

which, again, had the opportunity to observe his tone and demeanor, was

apparently satisfied with that response. Again, the attorneys—who were also

present and observed the juror—apparently also were not concerned that Juror No.

3 might be too resentful to serve impartially, as none of them suggested such a

possibility to the court.

In sum, substantial evidence supports the trial court’s implicit

determination that Juror No. 3 was still able to serve impartially as a juror, and no

inability appears as a demonstrable reality in the record; the court’s failure to

discharge him was therefore not an abuse of discretion. As to reversal for juror

misconduct, the record does not reflect a substantial likelihood the juror was

influenced by bias against defendant; we have no basis to conclude, therefore, that

defendant was denied his Sixth Amendment right to an impartial jury.


V. Inadequate Examination of Juror

Defendant contends the trial court conducted an inadequate examination of

Juror No. 3 in the first and second interviews. In particular, he claims the court

failed to inquire into the possibility that the juror’s desire to see photographs of the

victims while alive reflected such sympathy for the victims as to constitute, or

cause, a bias against defendant. As with the previous claim, however, defendant

has waived this claim by his failure to seek a more extensive or broader inquiry of

the juror at the time, or in any other way to object to the trial court’s course of

action. The trial court did not indicate any unwillingness to ask further questions

of Juror No. 3; nor did the court preclude counsel from asking such questions;

indeed, at the end of the first interview, the court invited questions from counsel,

but defense counsel declined. Having failed to suggest any additional examination

was required, thereby preventing the trial court from considering any arguments

for conducting further examination, defendant “is not privileged to make the

argument now for the first time on appeal.” (People v. McIntyre, supra, 115

Cal.App.3d at p. 906.)

On the merits, we find no abuse of discretion (People v. Ray, supra, 13

Cal.4th at p. 343) in the trial court’s failure to inquire further into possible bias.

Neither interview gave the court reason not to accept as true Juror No. 3’s

explanation that he wanted the pictures for, in the court’s word, “completion,” or

to doubt the juror’s assurances that his ability to serve as a juror would not be

affected by whether the court granted his request and that he could put the matter

out of his mind and be a “fair” juror. One may assume the juror felt considerable

sympathy for the victims—young women, murdered in an apparently unprovoked

attack, leaving behind loving friends and family—but such sympathy does not

equal or imply a disqualifying bias against the defense, especially where the

defendant claims to be innocent of the crime. The court, which was able to


observe the juror’s tone and demeanor, conducted an inquiry adequate to

determine that Juror No. 3’s natural sympathy for the victims had not developed

into an emotional involvement so intense and gripping as to disable him from

serving impartially.

VI. Refusal to Redact Asserted Character Evidence from March 22


During the March 22 interview, before defendant admitted having been

intoxicated on the night of the killings, Detective Hash asked him whether he

blacked out at any point. The following exchange ensued:

“Holloway: I knew what I was doing. I wasn’t drunk. Usually I can drink

a beer and not, you know, really get drunk. As far as hard liquor, I don’t really

mess with that, because I know, you know, if I do get drunk that’s. Just can’t

handle hard liquor. That’s why I only took one shot of Tequila. ‘Cause I know

what I’m capable of doing if I’m drunk, if I’m—

“Hash: What is that?

“Holloway: Staggering drunk. Can hurt somebody or whatever. If I was

drunk I don’t think I could do this.

“Hash: Do what, exactly?

“Holloway: Well, killing. Debbie was too close to me.”

Defendant moved for the redaction of most of this passage, beginning after

his statement that he does not “really mess with that.” Defense counsel argued

that defendant’s admission he could “hurt somebody” when very drunk was a

reference, “in essence,” to his prior conviction for assault on Roxie Bianchi, which

the guilt phase jury was not to hear about. The prosecutor argued defendant’s

admission contained no such reference, and the court agreed, stating the remark

“does not implicate his prior record.”


On appeal, defendant has shifted ground, claiming not that the remark at

issue referred to his prior offense, but rather that it was an opinion about “his own

character for violence while intoxicated” and was inadmissible, under Evidence

Code section 1101, to show he acted in accord with that propensity by killing

Debbie and Diane while intoxicated on the morning of March 20, 1983.

Although prior instances of conduct and opinion of a witness can both serve

to show character (Evid. Code, § 1100), defense counsel did not make clear below

that the objection was based on use of the statement as character evidence in

violation of Evidence Code section 1101. Rather, counsel argued only that

introduction of the remark would tend to make the jury think defendant had been

violent in the past and to speculate about “what exactly happened, you know, was

he arrested, did he get in trouble.” The court held simply that the remark did not

tend to raise the subject of defendant’s criminal record, a conclusion defendant

does not challenge on appeal. Whether counsel sufficiently stated “the specific

ground of the objection” (Evid. Code, § 353, subd. (a)) is thus unclear.

Even assuming, however, that defendant did preserve his Evidence Code

section 1101 objection and that the challenged statement was inadmissible as an

opinion about his character, we cannot conclude its admission caused a

miscarriage of justice (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b)) or

rendered defendant’s trial so “fundamentally unfair” (People v. Falsetta (1999) 21

Cal.4th 903, 913) as to constitute a deprivation of due process. Defendant’s

remark was in substance a frank admission of his own dangerous tendencies.

Defendant’s personal evaluation of his own character—unsolicited by the

detectives, who had not asked defendant whether he lost control when

intoxicated—was far more reliable than typical third party opinion-of-character

evidence. The prosecution’s use of defendant’s freely offered assessment of his

own weakness did not offend fundamental notions of fair trial. Nor, given the


other strong evidence against defendant, including his earlier attempt at creating a

false alibi and his later admissions to being present during the killings, taken with

the impeachment of his third-party-culpability witness,8 can we conclude a

different verdict was reasonably probable (People v. Watson (1956) 46 Cal.2d 818,

835) had the March 22 statement been redacted to omit defendant’s admission he

could hurt people when intoxicated.

VII. Witness’s Invocation of Fifth Amendment Privilege

As noted in the statement of facts, a latent fingerprint belonging to Lance

Reedy was found in the townhouse. Other than his parents’ ownership of a home

nearby, no evidence was introduced of a connection between Reedy and the

victims. Appearing with counsel, outside the presence of the jury, Reedy

successfully invoked his constitutional privilege against self-incrimination when

asked whether he knew the victims, killed them, or lived in his parents’ house at

the time of the killings. Defense counsel nonetheless called Reedy as a witness,

but asked only questions calling for identifying information.

Although defendant did not seek at trial to have Reedy invoke his Fifth

Amendment privilege before the jury—defense counsel thrice conceded such a

procedure was improper —he now contends the trial court erred in “denying” the

opportunity to have Reedy do so. Defendant claims his waiver should be excused

because any objection to the procedure actually employed would have been futile

in light of existing California law (Evid. Code, § 913; People v. Mincey (1992) 2


Defendant argues that although Zelma Cureton’s personal credibility was

impeached, she was nonetheless believable because the killings she testified to
hearing about in Reno bore certain circumstantial resemblances to the Pencin-
Cimmino killings. No evidence at trial, however, corroborated Cureton’s claim
that she reported such circumstantial details to the Reno police; the possibility of
later fabrication was thus left open.


Cal.4th 408, 441 (Mincey)) establishing a criminal defendant is not entitled to

compel a witness to invoke the privilege before the jury. He further argues that

Mincey was incorrectly decided and its application here deprived him of his right,

under the Sixth, Eighth and Fourteenth Amendments to the federal Constitution, to

present a defense.

We disagree both as to waiver and on the merits. In practically the same

breath as he asks us to overrule Mincey, defendant argues he did not forfeit the

issue below because “counsel could not be expected to lodge an objection on the

expectation that this Court would change the rule it pronounced in Mincey.” To

the contrary, we believe that if defendant wanted to preserve his claim that

application of the Mincey rule deprived him of his constitutional rights, he was

required to object, in some form, to application of that rule in the trial court. (See

Evid. Code, § 354, subd. (a); People v. Livaditis (1992) 2 Cal.4th 759, 778.)

Defense counsel in no way requested that Reedy be forced to invoke his privilege

before the jury, nor does defendant claim the trial court had a sua sponte duty to

have Reedy do so. This court could not, therefore, reverse the judgment on the

ground of any trial court error, even were we to hold that a defendant is entitled to

have the jury hear a witness invoke the privilege.

In any event, we do not so hold; instead, we reaffirm the rule expressed in

Mincey, which follows necessarily and directly from our Evidence Code.

Evidence Code section 913, subdivision (a) provides: “If in the instant proceeding

or on a prior occasion a privilege is or was exercised not to testify with respect to

any matter, or to refuse to disclose or to prevent another from disclosing any

matter, neither the presiding officer nor counsel may comment thereon, no

presumption shall arise because of the exercise of the privilege, and the trier of

fact may not draw any inference therefrom as to the credibility of the witness or as

to any matter at issue in the proceeding.” Subdivision (b) of the same statute


provides that the court, on a party’s request, is to instruct the jury not to make any

inference from the witness’s exercise of a privilege.

In People v. Frierson (1991) 53 Cal.3d 730, 743, we noted that in light of

Evidence Code section 913, to put a witness on the stand for the purpose of having

the witness invoke the privilege against self-incrimination “would only invite the

jury to make an improper inference.” In Mincey, we reiterated this reasoning,

holding that having the witness exercise her privilege in the jury’s presence would

be “in direct violation of Evidence Code section 913. The court’s refusal to do so

was therefore proper.” (Mincey, supra, 2 Cal.4th at p. 441.) We also rejected the

argument that refusing to do so deprived the defendant of his right to present a

defense, observing that a person may invoke the privilege for reasons other than

guilt, and “[a] defendant’s rights to due process and to present a defense do not

include a right to present to the jury a speculative, factually unfounded inference.”

(Id. at p. 442; accord, People v. Hill (1993) 3 Cal.4th 959, 991-992, overruled on

other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

Although Evidence Code section 913 applies equally in civil litigation as in

criminal prosecutions, defendant suggests that case law in civil cases has

nonetheless allowed comment to be made on and inferences to be drawn from a

witness’s invocation of the privilege against self-incrimination. From that premise

he argues that if such inferences are permitted in civil cases, so must they be in

criminal cases where the witness is not the defendant, but a third party who is not

facing immediate criminal sanction. The probative value of an invocation,

defendant argues, “does not change because the proceeding is denominated

criminal or civil.”


Defendant’s argument founders on its premise that California evidence law

differs in this respect between civil and criminal litigation. The only decision he

cites on this point is Shepherd v. Superior Court (1976) 17 Cal.3d 107.9 We did

say in that case that “[w]hen a claim of privilege made on this ground in a civil

proceeding logically gives rise to an inference which is relevant to the issues

involved, the trier of fact may properly draw that inference.” (Id. at p. 117.) We

based that statement on a pre-Evidence Code decision, Nelson v. Southern Pacific

Co. (1937) 8 Cal.2d 648, and on an earlier case upon which Nelson itself relied. In

Shepherd v. Superior Court, however, we failed to observe that the 1965

enactment of Evidence Code section 913—prohibiting the drawing of adverse

inferences in criminal and civil cases alike—had abrogated the holding in Nelson.

As stated in the official comment accompanying the section’s enactment as part of

the new Evidence Code (see Cal. Law Revision Com. Rep. (Jan. 1995) reprinted at

29B pt. 1 West’s Ann. Evid. Code (1995 ed.) pp. XXXIX et seq.), “Section 913

[w]ill, in effect, overrule the holding in the Nelson case, for it declares that no

inference may be drawn from an exercise of a privilege either on the issue of

credibility or on any other issue, whether the privilege was exercised in the instant

proceeding or on a prior occasion. The status of the rule in the Nelson case has

been in doubt because of the recent holdings in criminal cases; Section 913

eliminates any remaining basis for applying a different rule in civil cases.”

(Assem. Com. on Judiciary com. on 1965 Evid. Code, 29B pt. 3 West’s Ann. Evid.


Defendant cites three federal decisions for the proposition that the Fifth

Amendment to the federal Constitution does not prohibit adverse inferences from
the invocation of the privilege against self-incrimination against parties to civil
litigation. That proposition says nothing about whether the California law of
evidence sanctions such inferences.


Code, supra, foll. § 913, p. 168, italics added.) In light of the intervening

enactment, our decision in Shepherd v. Superior Court, supra, 17 Cal.3d 107,

erred in repeating the rule of Nelson and is overruled to that extent.

California law, then, makes no distinction between civil and criminal

litigation concerning adverse inferences from a witness’s invocation of the

privilege against self-incrimination; under Evidence Code section 913, juries are

forbidden to make such inferences in both types of cases. (In re Scott (2003) 29

Cal.4th 783, 815-816.) No purpose is served, therefore, in either type of trial by

forcing a witness to exercise the privilege on the stand in the jury’s presence, for,

as we observed in Mincey, supra, 2 Cal.4th at page 442, the court would then be

“required, on request, to instruct the jury not to draw the very inference [the party

calling the witness] sought to present to the jury. (Evid. Code, § 913, subd. (b).)”

We reject defendant’s contention, founded on the misconception that inferences

from exercise of the privilege are deemed valuable and permissible in civil cases,

that such inferences must also be permitted to be raised by a criminal defendant.

VIII. Limiting Instructions on Evidence of Homosexuality

The court, at the urging of the defense and over prosecution objection,

admitted evidence that Debbie Cimmino had a homosexual relationship with Traci

Bradley and that defendant was aware she was lesbian or bisexual. The court,

without objection from either party, instructed the jury to consider such evidence

only for limited purposes. Defendant now contends those instructions were

improper restrictions on the use of relevant evidence. We conclude defendant

waived his objection by failure to make it properly below and that giving limiting

instructions was within the trial court’s discretion.

In a motion in limine, defendant argued evidence of Debbie’s sexual

orientation was relevant to show that one of her lovers, Bradley, could have


contributed pubic hairs found at the scene; to impeach Lori Cimmino’s expected

testimony that she was close to her daughters and thus knew their lifestyle and

habits (in particular their cleanliness and neatness); and generally to “help paint a

complete portrait” of Debbie. The prosecution disputed the evidence’s relevance,

asserting the defense simply wanted to “sully up Debbie Cimmino in a collateral

way.” The court ruled Bradley would be permitted to testify to her sexual

relationship with Debbie for the limited purpose of explaining the hair evidence,

but precluded additional evidence on the subject and its use to impeach Lori

Cimmino. The court explained that while “we do not discriminate in the law” on

the basis of sexual orientation, “I cannot be blind when I’m considering possible

prejudice of the feelings of some people in society.” The court stressed its ruling

limiting use of the evidence was tentative, as it had not yet heard any evidence,

and “counsel is free at any time to approach the bench and ask me to change the

ruling based upon [the] evidence at that time.”

During his March 22 interview with the detectives, defendant was asked

how he felt about Debbie “being a lesbian.” He replied he was not happy about it,

but that was Debbie’s own personal life. Before the tape of that interview was

played for the jury, the court ruled, as the defense requested, that this exchange

would be included only for the limited purpose of showing “the defendant’s state

of mind at the time.” Defense counsel did not object to that limitation on

admission. The court subsequently instructed the jury the exchange was not to be

considered for the truth of Debbie’s sexual orientation, but only to aid in

understanding defendant’s further recorded statements and his state of mind

concerning his relationship with Debbie at the time of the interview.

Similarly, after Traci Bradley testified to her sexual relationship with

Debbie, the court instructed the jury that the testimony was admitted only “for the

limited purpose of considering it in connection with the physical evidence found at


the scene of the homicide.” Again, defense counsel raised no objection to this

limiting instruction.

On appeal, defendant contends the evidence of Debbie’s sexual orientation

was not subject to any limitation on its use; hence, no limiting instruction was

appropriate. He asserts that in addition to the two uses permitted by the court’s

instructions (to show defendant’s state of mind during the March 22 interview and

in connection with the hair evidence), the evidence was relevant to buttress the

credibility of Zelma Cureton’s testimony (Cureton testified “Booker” said the

victims were lesbians) and to show a “venturesomeness” on Debbie’s part

consistent with her being defendant’s lover (as he testified she was) or opening her

door late at night to Izear Bookman, whom the defense contended might be the

real killer.

Neither of these bases of relevance was raised or discussed in the hearing

on defendant’s motion in limine, nor did defendant take advantage of the trial

court’s offer to reconsider its in limine ruling at any point during trial. A tentative

pretrial evidentiary ruling, made without fully knowing what the trial evidence

would show, will not preserve the issue for appeal if the appellant could have, but

did not, renew the objection or offer of proof and press for a final ruling in the

changed context of the trial evidence itself. (People v. Carpenter (1999) 21

Cal.4th 1016, 1047; People v. Morris (1991) 53 Cal.3d 152, 189-190, overruled on

other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) “ ‘ “Where

the court rejects evidence temporarily or withholds a decision as to its

admissibility, the party desiring to introduce the evidence should renew his offer,

or call the court’s attention to the fact that a definite decision is desired.” ’ ”

(People v. Moore (1954) 43 Cal.2d 517, 523.) If defendant wished to use the

evidence of sexual orientation to support his third party culpability defense or (in

an odd fashion) to buttress his testimony that he and Debbie were lovers, he could


and should have presented those theories to the trial court, which could, if it

agreed the evidence was relevant for those purposes, have revised its limiting

instructions or given the jury a new instruction permitting wider consideration of

the evidence.

On the merits, the court did not abuse its discretion in instructing on limited

use of the evidence. As defendant concedes, where evidence is inadmissible

simply to show a person’s character but is admitted on some other proper ground,

the court may protect against the jurors’ possible misuse of the evidence through a

limiting instruction. (See Evid. Code, § 355.) Here, the court feared the evidence

might be misused by one or more jurors as evidence of Debbie’s character and as

such might be prejudicial and distracting because of possible personal bias against

homosexuals. We cannot conclude the trial court, which knew the jurors and the

community from which they were drawn, was unreasonable in its apprehension or

in its choice of remedy.

IX. Exclusion of Evidence of an Obscene Telephone Message

Defendant contends the trial court erred in excluding testimony from

Debbie Cimmino’s friend Juanita Seibel that a few weeks before the killings,

Seibel had heard an obscene telephone message left on one of the victims’

telephone answering machines. We conclude the court did not abuse its discretion

in excluding Seibel’s testimony under Evidence Code section 352.

In an offer of proof outside the jury’s presence, Seibel testified that about

three weeks or a month before the killings, Debbie had played for her a message

from an answering machine. The recording was of a male voice Seibel did not

recognize. Other than that the message was “obscene” and “sexually disgusting,”

Seibel did not recall its contents. She did not recall either sister’s name being used


in the message and did not know on which machine it had been recorded or to

whom it was directed.10

The trial court sustained the prosecution’s objection to this testimony,

ruling that “[i]f this evidence is relevant, it is extremely speculative. And if it has

any probative value at all, its probative value is substantially outweighed by a

substantial danger of confusing the issues and misleading the jury.”

Exclusion of evidence as more prejudicial, confusing or distracting than

probative, under Evidence Code section 352, is reviewed for abuse of discretion.

(People v. Rowland (1992) 4 Cal.4th 238, 264.) Defendant asserts the evidence

would have supported an inference that Izear Bookman left the obscene message,

but as Seibel did not recognize the caller’s voice and recalled almost nothing of

the message’s contents, any such inference would have been entirely speculative.

Though Zelma Cureton identified a photograph of Bookman as the man “Booker”

who boasted of having killed two women in Sacramento, no evidence linked

Bookman to a telephone message left several weeks earlier. On the other side of

the scale, testimony about an obscene message from an unknown caller had

substantial potential to distract the jury from the issues presented by the charges

and to confuse their understanding of the facts. Its exclusion was within the trial

court’s discretion.

Nor did the court’s ruling, as defendant also claims, deprive him of the

Sixth Amendment right to present a defense. As there was no rational basis for an

inference that Bookman left the message, admission of Seibel’s testimony could


Through testimony taken before the jury, defendant proved that the police

had inadvertently recorded over a telephone message tape taken from the victims’
townhouse, but a detective who remembered listening to this tape before it was
recorded over did not recall anything of evidentiary value.


not have materially bolstered the defense attempt to show Bookman was one of

the murderers.

X. Exclusion of Testimony Regarding Public Disclosure of Victim’s

Sexual Orientation

Over prosecution objection, Sacramento Sheriff’s Lieutenant Ray Biondi

was permitted to testify that he made a press statement regarding the Pencin-

Cimmino killings but did not release any information regarding the condition of

the bathroom. The trial court excluded his further testimony, offered by the

defense to support the testimony of Zelma Cureton that she had heard from

“Booker” the victims were lesbian, that he also did not say anything to the press

about Debbie’s homosexuality. The court apparently believed that evidence was

irrelevant because “there were people at the scene” who knew of Debbie’s sexual

orientation and thus Biondi’s proposed testimony could not show “he was the only

possible source of it.”

Any error in excluding the proposed testimony was harmless. It would not

have significantly bolstered Cureton’s credibility because the defense presented

nothing, other than Cureton’s own testimony, to show that she had learned any

circumstantial details of the crimes—such as that the victims were sisters, and that

one or both were lesbian—from the men she met in Reno. Between the weekend

of the crime in 1983 and the time of her testimony in 1992, of course, Cureton

could have learned of Debbie’s sexual orientation in any number of ways. To the

extent the jury found Cureton’s testimony unbelievable, as they apparently did, it

is not reasonably probable their assessment would have been changed by Biondi’s

offered testimony. (People v. Watson, supra, 46 Cal.2d at pp. 835-837.) Nor, for

the same reason, was the evidence so significant as to render its exclusion, if error,

a deprivation of defendant’s constitutional right to present a defense.


XI. Prosecutorial Misconduct in Argument

In his trial testimony, defendant said he had been drinking beer and tequila

and smoking marijuana during the night preceding the killings and was intoxicated

at the time he heard a scream originating near the victims’ townhouse. At the

request of both defense counsel and the prosecutor, the court instructed the jury

(using CALJIC No. 8.47) on the lesser included offense of involuntary

manslaughter committed while unconscious as a result of voluntary intoxication.

At the prosecutor’s request, the court also gave a more general instruction

(CALJIC No. 4.21) on voluntary intoxication as it relates to mens rea.

The prosecutor argued to the jury that the crime defendant committed was

first degree murder, not any of the lesser included offenses upon which the jury

would be instructed. He observed that the jury would be instructed on voluntary

intoxication and its relationship to the lesser included offenses, but they should

know that “that doesn’t exist in this case either. It exists solely to the extent that

the defendant now, now in 1992 wishes to present to you an excuse and that’s it,

that’s all. It’s simply a sham. It’s basically a smoke screen by the defendant

because he knows just as you know he’s been here in the courtroom. He knows all

of the evidence that has been presented and how truly damning it is.” (Italics


Defendant contends the italicized portion of this argument was an improper

attack on defense counsel’s integrity, unwarranted because the defense presented

at trial was third party culpability, not intoxication, and the prosecutor, rather than

defense counsel, had requested instruction on voluntary intoxication as it related to

mens rea. The issue was forfeited, however, by the defense’s failure to object or

seek an admonition. (People v. Bradford (1997) 15 Cal.4th 1229, 1333.) Though

such an omission may be excused where an objection would have been futile or an

admonition could not have cured the harm (People v. Hill (1998) 17 Cal.4th 800,


820), that is not the case here. The trial court said nothing to suggest an objection

would have been futile, and even if the remark is considered misconduct it was not

so inflammatory or revelatory that a timely admonition could not have been

effective. The prosecutor’s remark revealed no fact the jury had not already heard

and did not address the question of third party culpability upon which the defense

was primarily depending. An instruction to disregard the remark could have

dissipated whatever prejudice was created.

Nor are we persuaded the prosecutor misconducted himself in the manner

defendant contends. Defendant’s trial testimony did present the issue of

intoxication, an issue even more strongly suggested by the March 22 statement,

and while defense counsel did not request the general instruction on the subject,

they did request instruction on voluntary intoxication as supporting the lesser

included offense of involuntary manslaughter. Although the primary defense was

third party culpability, the prosecutor was not without justification in suggesting

that defendant was also proffering a fallback defense of unconsciousness due to

voluntary intoxication.

XII. Restriction on Defense Guilt Phase Argument

Addressing the jury on the subject of Zelma Cureton’s testimony, defense

counsel argued that its significance was on the question of reasonable doubt. The

following exchange then occurred:

“MS. LANGE [defense counsel]: . . . You’re going to hear a long

description of reasonable doubt, but basically it’s defined as that—

“THE COURT: I will give the instruction on reasonable doubt.

“MS. LANGE: Okay. I was going to read the last sentence.

“THE COURT: You read the whole thing or not read it at all.


“MS. LANGE: Okay. The Judge will instruct you on what reasonable

doubt, what reasonable doubt is, excuse me.”

Counsel then argued Cureton’s testimony raised a reasonable doubt as to

defendant’s guilt.

Defendant contends the court abused its discretion and deprived him of his

Sixth Amendment right to effective assistance of counsel, by restricting counsel’s

argument in this manner. We disagree. Counsel was precluded neither from

previewing the reasonable doubt instruction nor from arguing the evidence did not

prove guilt by that standard. The court barred counsel only from giving an

incomplete version of the instruction, including only that part favorable to the

defense and omitting that part favorable to the People.11 Such a limitation was

well within the court’s discretionary control over argument (§ 1044; Herring v.

New York (1975) 422 U.S. 853, 862) and did not preclude counsel from fairly

arguing the case against conviction.

XIII. Sufficiency of Evidence of Burglary

Defendant contends his burglary conviction and the special circumstance

finding that he murdered Diane Pencin in the commission of a burglary must be

reversed because the evidence is insufficient to show he entered the Pencin-

Cimmino townhouse with the intent to commit rape.


The court’s instruction defining reasonable doubt (CALJIC No. 2.90) (1989

rev.) was as follows: “It is not a mere possible doubt; because everything relating
to human affairs, and depending on moral evidence, is open to some possible or
imaginary doubt. It is that state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction, to a moral certainty, of the
truth of the charge.”


Diane’s body was found lying on her back on her bed, nude, but her mother

testified that Diane did not sleep in the nude, and defendant told the police both

victims, presumably clothed, answered the door when he went to the townhouse.

The bedroom was in disarray and a pair of panties was found tucked between the

mattress and the bed frame. Diane’s wrists and ankles bore ligature marks, and

her stab wounds were to the front of her body. Taking this evidence together with

the physical evidence indicating an incomplete sexual attack on Debbie Cimmino

in the backseat of her car (her partially unclothed body, a vaginal tear, foreign

pubic hairs found on her body and on the robe covering it, the location of

defendant’s palm print above the backseat, and a lack of semen on the body or

surrounding items), the Attorney General argues the jury could have rationally

inferred defendant tried to rape Debbie in the car but failed and, frustrated, turned

his sexually assaultive intent on Diane, entering or reentering the townhouse,

removing Diane’s nightclothes, tying her up by the wrists and ankles on the bed,

and eventually stabbing and strangling her in that position. Defendant, the

Attorney General concedes, also entered with the intent of killing Diane to

eliminate a witness who could tie him to Debbie’s death, but had that been his

only intent he would have had no reason to remove Diane’s clothing or bind her

hands and feet.

We agree with the Attorney General that from this evidence a rational trier

of fact could have found beyond a reasonable doubt that defendant entered the

townhouse with the intent to sexually assault Diane. (People v. Rowland, supra, 4

Cal.4th at p. 271.) As in People v. Marshall (1997) 15 Cal.4th 1, 36, evidence of

another sexual assault linked to the charged attack, together with the physical

evidence surrounding the attack itself, sufficiently supported the finding of

sexually assaultive intent.


Defendant relies on three older decisions (People v. Granados (1957) 49

Cal.2d 490; People v. Craig (1957) 49 Cal.2d 313; People v. Anderson (1968) 70

Cal.2d 15) in which this court found evidence regarding the condition of female

victims’ bodies insufficient to support convictions of murder in the commission of

rape or child molestation. All these decisions are, by their nature, dependent on

the particular facts of the case, and none speaks precisely to the facts here. In

People v. Craig, we regarded the condition of the defendant’s clothing as

inconsistent with the prosecution’s rape-murder theory (49 Cal.2d at p. 318); no

such inconsistency appears here. In all three decisions, we noted the lack of

semen, wounds to the victims’ genital area, or both (id. at pp. 317, 319; People v.

Granados, supra, at p. 497; People v. Anderson, supra, at p. 22), factors which,

whatever they may show when the charge is murder in commission of rape or

child molestation, have little tendency to rebut an inference this defendant entered

the townhouse with a sexually assaultive intent. Most important, in none of the

cited cases had the assailant, in close connection with the charged offense, also

sexually assaulted another woman or child, as the jury could certainly conclude

defendant did here.

The cited decisions, as a group, may be read to establish “that the victim’s

lack of clothing . . . is insufficient to establish specific sexual intent.” (People v.

Johnson (1993) 6 Cal.4th 1, 41.) But the finding in the present case rests on

substantially more than the victims’ nudity. The closely associated sexual assault

on Debbie and the evidence Diane was bound at her wrists and ankles during the

attack, in particular, distinguish the cited cases and support the rational inference

that defendant entered the townhouse with the intent of raping, as well as killing,



XIV. Incomplete Instructions on Relationship Between Murder and


The trial court instructed the jury (through CALJIC No. 8.21) that the

killing of Diane Pencin was first degree murder if committed “during the

commission of burglary” and (through CALJIC No. 8.81.17) that the

burglary-murder special circumstance required proof that the murder was

committed “while the defendant was engaged in the commission of a burglary.”

The court did not, however, instruct with the last portion of CALJIC No. 8.81.17,

to the effect that the murder must have been carried out to advance the burglary,

and not vice versa (see People v. Green (1980) 27 Cal.3d 1, 60-62, disapproved on

other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3); nor was the jury

instructed, pursuant to the “merger” principle, that a burglary committed solely

with the intent to kill or assault the victim inside the premises may not serve as the

predicate for a felony murder conviction (see People v. Hansen (1995) 9 Cal.4th

300, 311-312; People v. Wilson (1969) 1 Cal.3d 431, 440-441).

Defendant contends the instructions were prejudicially incomplete and

deprived him of due process under the Fourteenth Amendment to the federal

Constitution because, under them, the jury might have improperly rested both the

first degree murder conviction for Diane’s killing and the associated special-

circumstance finding on a theory that defendant had burglarized the townhouse

only with the intent to kill Diane, not to rape her. But we need not decide whether

the trial court should, sua sponte, have given specific instructions precluding that

theory, for the record establishes that the jury did not rely on such a theory of

burglary. On the charge of burglary itself, the jury was instructed that burglary

was entry into an inhabited dwelling house “with the specific intent to commit

rape,” and there must be proof that at the time of entry defendant “had the specific

intent to commit the crime of rape.” This instruction left no room for a theory of


burglary with the sole intent to kill, yet the jury convicted defendant of burglary,

necessarily finding he entered with the intent to rape, not only to kill, Diane. It

follows that the murder and burglary did not merge, for purposes of first degree

felony murder, and that the burglary was not merely incidental to the murder for

purposes of the special circumstance. Any error in failing to instruct more fully

was therefore harmless, even under a federal constitutional standard, because the

jurors necessarily resolved the assertedly omitted factual question through other

properly given instructions. (People v. Flood (1998) 18 Cal.4th 470, 483, 506.)

XV. Failure to Instruct on Heat-of-Passion Manslaughter

Turning to his conviction for the murder of Debbie Cimmino, defendant

complains that the court, while it gave a general instruction on voluntary

manslaughter as a lesser included offense of murder, did not specifically instruct

that malice aforethought is negated, and the crime reduced to voluntary

manslaughter, when the killer acts in a heat of passion arising from sufficient

provocation. (People v. Breverman (1998) 19 Cal.4th 142, 163.) He argues the

evidence supported a scenario in which defendant and Debbie began a consensual

sexual encounter in Debbie’s car, defendant “failed sexually, was ridiculed by

Debbie Cimmino,” and reacted to that provocation with homicidal rage.

We reject the contention because there was simply no evidence, much less

substantial evidence, presented to support the provocation theory. Defendant, who

testified regarding his actions on the morning of the killings, stated that when he

first saw Debbie that morning she was already dead. Nor did the fragmentary

narrative defendant gave police in his March 22 statement include any account of

a consensual sexual encounter. The condition of Debbie’s body and car indicated

a violent struggle and forcible penetration, not a consensual encounter. As no

reasonable jury could infer from the evidence as a whole that Debbie Cimmino


provoked defendant into killing her, the court did not err, under California law, in

failing to instruct on that theory of voluntary manslaughter. (People v.

Breverman, supra, 19 Cal.4th at p. 162; People v. Barton (1995) 12 Cal.4th 186,

194-195, 200-201.)

Nor, contrary to defendant’s claim, did the trial court deprive defendant of

any right under the Eighth or Fourteenth Amendments to the federal Constitution

in failing to give instructions consistent with the theory, for no fundamental

unfairness or loss of verdict reliability results from the lack of instructions on a

lesser included offense that is unsupported by any evidence upon which a

reasonable jury could rely. While this court in People v. Breverman, supra, 19

Cal.4th at page 170, footnote 19, recently declined to decide whether failure to

instruct on a lesser offense of voluntary manslaughter “supported by the evidence”

is federal constitutional error (see also id. at pp. 189-190 (dis. opn. of Kennard, J.)

[arguing failure to instruct violates Constitution “[w]here . . . there is sufficient

evidence of heat of passion to support a voluntary manslaughter verdict”]),

nothing in either the majority or dissenting Breverman opinion suggests that the

federal Constitution, any more than the California Constitution, is infringed when

a theory of voluntary manslaughter unsupported by any substantial evidence is

omitted from the law presented to the jury.

XVI. Instruction that Voluntary Manslaughter Requires Intent to Kill

Defining the offense of voluntary manslaughter, the court told the jury that

one of its elements is the intent to kill. Defendant contends this was error in light

of our recent holding in People v. Lasko (2000) 23 Cal.4th 101, 104, 108-111 that

the mens rea of the offense is also met by proof of a highly dangerous act

committed in conscious disregard of human life. A correctly instructed jury,

defendant suggests, might have convicted of heat-of-passion voluntary


manslaughter on the theory that defendant, intoxicated and in a “sexual rage such

as might reduce murder to manslaughter,” strangled Debbie with the intent to hurt

her seriously and not caring whether he killed her, but without any actual intent to


As just explained, however (see pt. XV, ante), even assuming defendant

killed Debbie in a sexual rage rather than to prevent her from reporting his sexual

assault on her, the record contains absolutely no evidence of provocation sufficient

to cause an ordinarily reasonable person to act in such a rage. Nor was there any

evidence defendant intended to hurt, but not to kill, Debbie when he strangled her

with his hands. This variation on defendant’s appellate theory of voluntary

manslaughter therefore also lacks substantial evidentiary support and, for the

reasons given above, was error neither under state law nor under the Eighth and

Fourteenth Amendments to the federal Constitution.

XVII. Instructions on Consciousness of Guilt

Using three standard instructions (CALJIC Nos. 2.03, 2.04, 2.06), the trial

court told the jurors that if they found defendant had made willfully false or

deliberately misleading statements about the crimes, or had attempted to fabricate

or suppress evidence, they could consider such statements or efforts as tending to

show consciousness of guilt. All three instructions also included the cautionary

advisement that “such conduct is not sufficient by itself to prove guilt, and its

weight and significance, if any, are matters for your determination.”

Defendant concedes these instructions were supported by the evidence, but

nonetheless contends they are argumentative and fundamentally unfair; they

unconstitutionally lighten the prosecution’s burden of proof, defendant argues, by

“singl[ing] out isolated bits of evidence against [defendant] and magnify[ing]

them.” As defendant also concedes, we have previously rejected this contention,


observing that “[t]he cautionary nature of the instructions benefits the defense,

admonishing the jury to circumspection regarding evidence that might otherwise

be considered decisively inculpatory.” (People v. Jackson (1996) 13 Cal.4th 1164,

1224; see also People v. Kelly (1992) 1 Cal.4th 495, 531.) Defendant’s answer,

that the cautionary parts would not be needed if the inculpatory inferences were

not highlighted by the instructions themselves, does not persuade us the

instructions are unfair. 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. In this

case, such circumstantial evidence of consciousness of guilt was among the

strongest evidence against defendant and would certainly have been argued—

properly—by the prosecutor even without the challenged instructions. To

highlight this circumstantial evidence in the course of cautioning the jury against

overreliance on it was not unfair to defendant.

XVIII. Cumulative Prejudice of Guilt Phase Errors

We reject defendant’s contention that the errors made in conducting the

trial on guilt and special circumstances were prejudicial in combination. We have

not found any errors in the conduct of the trial, and in the few instances where we

have assumed error for purposes of discussion (see pts. VI, X & XIV, ante) we

have not found prejudice or, indeed, any significant adverse impact. Even taken

together, therefore, such assumed errors were not prejudicial. (People v. Price

(1991) 1 Cal.4th 324, 491.)

Penalty Phase Issues

XIX. Evidence of Prior Violent Act’s Impact on Victim

As described earlier, the prosecution presented evidence, pursuant to

section 190.3, factor (b) (hereafter factor (b)), that in 1976 defendant, uninvited,


entered the home of a neighbor, Linda Carter, in the early morning and, when

discovered by Carter, struck her repeatedly in the face and head with his fist and a

wooden club, causing physical injuries for which she received medical treatment.

Carter further testified that as a result of the incident she received psychological

treatment for fear and bought a handgun, which she still possessed at the time of

trial. Over defense objections on the ground of irrelevance, Carter was allowed to

further testify that she kept the gun under her pillow and carried it to investigate

any noises she heard in the night; without such investigation, she observed, “there

is no way I could rest.”

Defendant concedes that under factor (b) prior violent acts may be shown

“in context,” so as to fully illuminate their seriousness (People v. Melton (1988)

44 Cal.3d 713, 757), but contends the relevant context includes only direct and

foreseeable results of the violence, not “remote or idiosyncratic reactions of the

victim,” a category into which he argues Carter’s testimony about her continuing

fear falls. For this proposition he relies on People v. Boyde (1988) 46 Cal.3d 212,

249, in which we held irrelevant to the aggravating factors in section 190.3

unspecified “testimony by victims of other offenses about the impact that the event

had on their lives.” Acknowledging that in People v. Mickle (1991) 54 Cal.3d 140

we held admissible, apparently under factor (b), the testimony of sexual assault

victims that “they continued to experience pain, depression, and fear” (Mickle,

supra, at p. 187),12 defendant argues the two decisions may be reconciled through

the foreseeability rule he proposes. He also contends the same proposed rule must

limit admissibility under the Eighth and Fourteenth Amendments to the federal

12 See


People v. Price, supra, 1 Cal.4th at page 479 (“At the penalty

phase, the prosecution may introduce evidence of the emotional effect of
defendant’s prior violent criminal acts on the victims of those acts”).


Constitution, for permitting unlimited victim-impact evidence under factor (b)

would render that factor unconstitutionally vague and open the way to imposition

of the death penalty in an arbitrary and capricious manner.13

We need not decide here whether evidence of indirect or idiosyncratic

effects of prior criminal violence is irrelevant under factor (b), or its use

unconstitutional, for the evidence defendant complains of was neither remote nor

unforeseeable. As the Attorney General observes: “[V]ictim Carter’s emotional

trauma years later, resulting from [defendant’s] assault with a deadly weapon that

caused severe head injuries, after he surprised this single mother and her child in

their apartment, was highly foreseeable. A victim’s understandable reaction of

arming herself at night and investigating strange noises at night while armed

hardly seems unusual or disconnected from her experience as one of [defendant’s]

victims.” Though a number of years had passed between defendant’s attack on

Carter and her testimony, the link between the attack and the emotions and actions

to which Carter testified was direct and foreseeable, not causally remote or

unforeseeable. Even under the limitation defendant urges, the evidence was


XX. Prosecutor’s Implication that Perjury Is Aggravating Factor

On cross-examination, a defense psychologist, Shawn Johnston, insisted

that despite his violent criminal past defendant was “not incapable of rehabilitating

himself within the prison context.” The prosecutor then asked Johnston a series of

questions about defendant’s failure to rehabilitate himself while in prison and on

parole for the 1979 Bianchi assault; his failure to take Antabuse, as ordered,

13 But


People v. Garceau (1993) 6 Cal.4th 140, 201-202 (federal

Constitution does not bar introduction of evidence showing effect of prior violent
criminal activity on victims).


despite recognition that alcohol abuse was part of his problem; and his having

“lied through his teeth” in the March 21 and March 22 interviews with the

sheriff’s detectives. The prosecutor then posed the following question: “In this

case Duane Holloway in the guilt phase took the stand and under oath swearing to

tell the truth, the whole truth and nothing but the truth, lied through his teeth in

1992. [¶] Wouldn’t it be a reasonable interpretation of that that Duane Holloway

in this passage of over nine years has not rehabilitated at all with regard to his

murders of Diane Pencin and Debra Cimmino?”

Defendant’s objection that the question assumed a fact not in evidence (that

he had “lied through his teeth” in his testimony) was sustained, the court noting

that “an ‘if’ in there is appropriate. . . . it’s up to the jury to decide in this case.”

But during further cross-examination of Johnston the next day, following a series

of questions about defendant’s expression of remorse, or lack thereof, for his

violent crimes, the prosecutor returned to the subject of his lying in police

interviews and his testimony, asking the following: “And in this trial in the guilt

phase of this trial, the defendant testified under oath, swearing to tell the truth, the

whole truth, and nothing but the truth, and he testified for, oh, probably

approximately a day and a half, and you know, do you not, that throughout that

testimony concerning the murders of Diane Pencin and Debbie Cimmino, that the

defendant repeatedly lied, don’t you?”

Defense counsel again objected on the ground the question assumed facts

not in evidence. After discussion at the bench regarding the form of a proper

hypothetical question in this area (asking whether defendant’s having lied in his

testimony, if he did, would indicate a lack of ability to rehabilitate), the court ruled

it would not allow such a question because of the “difficulty . . . [of] separating a

defendant’s lying in his own defense . . . from his failure to confess,” a subject on

which the court deemed questioning improper.


Defendant contends the prosecutor misconducted himself by asking these

two questions. The questions were argumentative, he contends, and prejudicial in

that they “invited the jurors to consider [defendant’s] assertedly false testimony at

the guilt phase as evidence in aggravation [in violation of] both state law and

federal constitutional restrictions.” He argues commission of perjury, a nonviolent

crime, does not fit within any of the sentencing factors listed in section 190.3; its

use against defendant thus violated state law and deprived him of his due process

and Eighth Amendment rights to have his sentence decided on grounds relevant to

his character and prospect for rehabilitation.

We disagree with defendant’s claim that the prosecutor, in posing the

challenged questions, invited the jury to consider defendant’s commission of

perjury as a factor in aggravation. The questions were put to the psychologist,

Johnston, in the course of cross-examination on the subject of defendant’s remorse

for his actions and the ongoing rehabilitation to which Johnston had previously

testified. The prosecutor’s aim was clearly to probe Johnston’s optimistic

assessment of defendant’s personal growth by confronting the witness with

defendant’s assertedly continuing pattern of falsehoods regarding the killing of

Pencin and Cimmino. No reasonable juror would have taken the prosecutor’s

questions as suggesting defendant should be sentenced to death because he

committed perjury. As defendant concedes, the prosecutor “could permissibly

adduce [defendant’s] allegedly false testimony in rebuttal of the claim that

[defendant] had been rehabilitated since 1983 . . . .” The prosecutor did not

misconduct himself in attempting to do precisely that.14


Defendant points to the prosecutor’s use in penalty argument of defendant’s

assertedly false guilt phase testimony as reinforcing the prejudicial impression that
perjury could be a factor in aggravation. To the contrary, this argument (to which

(footnote continued on next page)


We also note the absence of any reasonably possible prejudice. The

prosecutor’s questions may have been defective in form, but defendant’s

objections to them were sustained. The jury was instructed that counsel’s

questions were not evidence, that they should not assume to be true any fact

insinuated by a question, and that they should completely disregard any question

to which an objection was sustained. We have no reason to believe they

disobeyed these instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.)

XXI. Exclusion of Jail Deputy’s Opinion

Keith Biggers was one of two deputy sheriffs who testified to defendant’s

good behavior in Sacramento County jail while awaiting and during trial. Defense

counsel also asked Biggers whether he had an opinion “as to Mr. Holloway’s

adjustment in prison if he was to be sentenced to life imprisonment without

possibility of parole.” The prosecutor objected to the question as calling for

evidence “beyond the scope of this witness’s experience.” At the bench, the

prosecutor argued there was no foundation to show the deputy had any experience

with life prisoners or inmates in state prison generally. The court agreed the

witness did not have “the basis, expertise to give an expert opinion on this

subject.” The court denied defense counsel’s request that he at least be permitted

to ask about adjustment to “a structured setting,” observing, “I don’t know that he

knows that either.”

Defendant contends the deputy, who had four years’ experience as a jail

guard, was “clearly qualified to speak about adjustment of inmates to a structured

(footnote continued from previous page)

defendant raised no objection), like the cross-examination of Johnston, was clearly
aimed at rebutting the defense claim that defendant had changed for the positive in
the almost 10 years since the murders.


setting,” so that the court, in excluding his testimony, abused its discretion and

deprived defendant of his Eighth Amendment right to present all relevant evidence

in mitigation of punishment. (Skipper v. South Carolina (1986) 476 U.S. 1, 4.)

We disagree. Defendant failed to show the deputy had any experience or

other source of expertise as to inmates’ adjustment to and life in prison under life

sentences; the court correctly refused to allow him to opine on the subject.

Phrasing the question in terms of a “structured setting” would not have improved

it, as the only “structured setting” with which the jury was concerned was state

prison, to which they were being asked to sentence defendant for life. Without

experience or study of prison adjustment, the deputy’s opinion on this subject

would have been highly unreliable. In excluding this unreliable opinion, the court

neither abused its discretion under state law nor deprived defendant of any right

under the federal Constitution. (People v. Phillips (2000) 22 Cal.4th 226, 238;

People v. Ramos (1997) 15 Cal.4th 1133, 1175-1176; People v. Edwards (1991)

54 Cal.3d 787, 837-839.)

XXII. Improper Impeachment of Defense Character Witness

Sylvia Wesner, a neighbor of defendant’s family when defendant was a

teenager, testified that when there was a rash of burglaries in the building,

defendant volunteered to, and did, stay up watching her apartment for several

nights. Over defense objection, the prosecutor was permitted to ask Wesner

whether she knew at the time that defendant had, in 1976, burglarized an

apartment and beaten the woman occupant with a wooden stick (referring to the

Carter assault) and whether, had Wesner known of this incident, she would still

have trusted defendant to watch over her apartment. Wesner answered that she

had heard rumors about the incident, but she trusted defendant anyway.


Defendant contends questioning Wesner about the Carter assault was

improper impeachment because Wesner had not testified to an opinion regarding

defendant’s good character but merely to a good deed defendant had performed.

“Whether she was aware of [defendant’s] other crimes or bad acts did not impeach

her testimony of having witnessed a good deed.” Again, defendant claims this

ruling deprived him of his right to present relevant mitigating evidence under the

Eighth Amendment to the federal Constitution.

Again, we disagree. Whatever the intent of defendant’s trial counsel in

asking Wesner about the apartment-guarding incident, Wesner’s testimony

regarding it unmistakably conveyed her opinion that defendant was trustworthy,

especially in the context of her other testimony giving her opinion that defendant

was a reserved, quiet and inquisitive adolescent. The prosecution was entitled to

test that opinion by confronting the witness with evidence that defendant himself

had burglarized an apartment and assaulted the occupant. (People v. Siripongs

(1988) 45 Cal.3d 548, 578 [“A defendant has no right to mislead the jury through

one-sided character testimony during either the guilt or penalty trial”]; People v.

Mickle, supra, 54 Cal.3d at p. 192.)

In any event, no possibility of prejudice appears. The Carter assault was

already in evidence. To the extent the defense intended Wesner’s testimony

simply as an instance of defendant’s good conduct, that aspect of the testimony

was not impeached—the challenged cross-examination did not tend to show

defendant had not guarded Wesner’s apartment effectively and in good faith.

XXIII. Exclusion of Defense Guilt Phase Investigator

During a recess following the testimony of one of defendant’s sisters, the

court remarked that Marilyn Mobert, who acted as defense investigator for guilt

issues but not for the penalty phase, had been “dabbing her eyes, look[ing] like she


was crying during this testimony.” Mobert stated she had not been crying but

rather had gotten some mascara in her eye. The prosecutor represented that “this

is the second occurrence today in which . . . Ms. Mobert has been identified as . . .

reacting to witness’s testimony.” The court agreed and, saying it was “[n]ot going

to take a chance any longer,” ordered Mobert, over defense objection, to leave the

courtroom for the rest of the day.

Defendant contends the exclusion of Mobert deprived him of a public trial

in violation of the Sixth Amendment to the federal Constitution and of what he

characterizes as a right of capital defendants under the Eighth Amendment to the

presence of “friendly and sympathetic spectators” in the audience to support them

so the jury will not be influenced by what might be perceived as the defendant’s

negative “nontestimonial demeanor.” He concedes disruptive spectators may be

excluded from the courtroom, but argues a constitutionally insufficient effort to

ascertain the facts preceded the trial court’s “summary eviction” of Mobert.

We disagree that defendant was denied his constitutional rights. The

temporary exclusion of a single spectator, intended to prevent potentially

disruptive displays, did not constitute a cognizable deprivation of the public trial

right. (See People v. Woodard (1992) 4 Cal.4th 376, 385; People v. Hartman

(1894) 103 Cal. 242, 244-245.) Nor, even assuming the Eighth Amendment has

any application to this situation, was there anything to suggest defendant’s

demeanor could be significantly impacted by the exclusion of one sympathetic

spectator. No constitutional error is apparent.

XXIV. Exclusion of Certain Family History Evidence

Dorothea Holloway, defendant’s mother, testified she left her parents’

family when she was 17 years old to go with Walter Holloway to Oakland, where

defendant was born. Defense counsel then sought to ask Dorothea about her


parents’ reaction to her “going with Walter Holloway,” but the prosecution

objected on hearsay grounds. At the bench, counsel represented that Dorothea

would testify her parents had disowned her, leaving her to raise her children

without any help from an extended family while Walter was “out floundering.”

Counsel argued the evidence, offered for the nonhearsay purpose of showing

Dorothea’s knowledge of her own situation, would illuminate defendant’s family

life as well as his mother’s character. The court observed that the evidence would

be taken as an implied opinion of Dorothea’s parents on Walter’s character and

excluded the offered testimony on the grounds that the “probative value of

[defense counsel’s articulated] non-hearsay purpose, if there is such a value, . . . is

outweighed by the substantial danger of prejudice that is going to be misused by

the jury.”

The court’s ruling excluding the proposed testimony as more prejudicial,

confusing or distracting than probative, under Evidence Code section 352, is

reviewed for abuse of discretion. (People v. Rowland, supra, 4 Cal.4th at p. 264.)

We find no such abuse of discretion. Though Walter Holloway’s deficiencies as a

father and role model for defendant were relevant subjects for proof in mitigation,

Walter Holloway’s character itself was not at issue. The defense penalty case,

which rested heavily on proof of the deleterious effects of Walter’s behavior on

defendant, created a substantial danger the jury’s attention and deliberations would

incorrectly focus on Walter’s character, a danger the court sought to reduce by

excluding what could be taken as opinion on that subject. On the probative value

side of the scale, the reaction of defendant’s maternal grandparents to their

daughter’s relationship with Walter was of only indirect and remote relevance to

defendant’s character and experience.

Nor was the proposed testimony needed in order to illuminate the family

environment of defendant’s childhood, for Dorothea or other members of


defendant’s nuclear family could have testified that she received no emotional or

financial support from her parents in raising her family, without elaborating on the

cause of this circumstance. The court did not abuse its discretion, much less

deprive defendant of his Eighth Amendment right to present evidence in

mitigation (see People v. Fauber (1992) 2 Cal.4th 792, 856), by excluding this

marginally relevant testimony because of its potential for prejudice and


XXV. Denial of Mistrial Motion

On direct examination, defense correctional expert James Park opined that

defendant would be eligible for a work assignment if confined for a life term

without parole in “Level 4” confinement in a state prison and could contribute to

the community in that capacity, but that he “has to be motivated.” On cross-

examination, the prosecutor asked Park, “Are you aware of the fact that Duane

Holloway does not want to be sent to a Level 4, but wants to be sent back to death

row where—” Defense counsel immediately objected that no such evidence had

been introduced; the objection was sustained.

The prosecutor then asked Park if he had reviewed notes of a psychologist,

Dr. Roger Mayer. Park testified he had not seen Mayer’s notes or report, that he

discussed the report with counsel but only with regard to assessments of

defendant’s intelligence, and that counsel had not given him any information on

defendant’s “motivation to be a Level 4 prisoner as opposed to a death row


The prosecutor returned to the subject of death row versus Level 4

confinement later in the cross-examination:

“Q. And as you indicated, in Level 4 the most common housing is double

celling, two individuals per cell?


“A. Yes, sir.

“Q. And on death row isn’t it more likely that the celling will be individual


“A. Yes, sir.

“Q. And wouldn’t you agree that to the extent that the defendant, Duane

Holloway, values his privacy and doesn’t like double celling, he is going to be less

motivated to behave himself in a Level 4 facility?”

Defense counsel again objected that the question assumed a fact not in

evidence. At the bench, the prosecutor asserted his questions were based on notes,

provided him by the defense, generated by Dr. Mayer, which described “the

defendant’s wanting single celling, valuing his privacy, wanting to be in death

row.” Defense counsel pointed out that because he might not call Dr. Mayer, the

factual basis for the prosecutor’s questions might never be established. The court

sustained the defense objection, noting that Park might have to be re-called if

Mayer did testify.

After Park completed his testimony, defense counsel moved for a mistrial

based on the prosecutor’s question about defendant preferring death row. The

court stated it would hear the motion the next court day, a Monday. On Monday,

the court confirmed that defendant personally wished to make a mistrial motion

and learned from defense counsel that they did not intend to call Dr. Mayer as a

witness. The court then invited argument on the motion.

Defense counsel argued the prosecutor had misconducted himself by posing

questions that assumed, as fact, defendant’s desire to return to death row, when no

such fact was in evidence. By his questioning, the prosecutor “has given

permission to the jury to impose the death penalty . . . [by] basically stating that

Mr. Holloway wants the death penalty . . . .” This impermissibly relieved the jury

of the true weight of their sentencing decision, in violation of the Eighth


Amendment to the federal Constitution. “The decision of death,” counsel argued,

“is to be made based upon the facts in the case, not upon the desire of the


In response, the prosecutor stated his questions were asked in good faith

reliance on Dr. Mayer’s notes (copies of which were provided to the court)15 and

that from the discovery provided he assumed Dr. Mayer would be called. In any

event, the objections were sustained and defendant’s apparent preference to be

housed on death row was therefore never put before the jury.

The court denied the mistrial motion the next day. The court found the

prosecutor had asked the questions in a good faith attempt to rebut Park’s direct

testimony about defendant’s likely adjustment to a life sentence. “It does not

appear to me that the questions which were not answered . . . and the jury will be

instructed are not evidence in this case, were prejudicial, since it is clear, as I

understand it now, that at this point the defendant prefers life.” The court offered

to give a special admonition if one could be formulated, but apparently none ever


On appeal, defendant contends the form and content of the prosecutor’s

questions, by essentially representing to the jury as fact that defendant preferred

death row to confinement on a life sentence, incurably prejudiced his case by

partly relieving the jury of the burden it should bear, under the Eighth Amendment

to the federal Constitution, to determine the proper penalty. For two reasons, we



The notes included indications defendant had told Mayer he “was

comfortable with my shell at the row. . . . I liked privacy” and that “[l]ife without
is the kiss of death. I don’t want it. I would . . . hate 20, 30, 40 years of main


First, the impression a jury might have drawn from the prosecutor’s

questions was that defendant had told Dr. Mayer he preferred conditions on death

row to those he would face if confined on a life sentence, not that he preferred

dying to serving a life sentence. As the jury’s sentencing choice is between death

and life imprisonment, not between life imprisonment in Level 4 and life

imprisonment on death row, such an impression, if acquired, would not tend truly

to relieve the jurors of the proper weight of their sentencing decision. Nor is there

any reason to believe the penalty jury would be inclined to a death sentence

merely because of an impression defendant would be more comfortable on death

row than in the state prison general population.

Second, the jury had already been instructed at the guilt phase, and was

reinstructed before penalty deliberations, that the questions of counsel are not

evidence, that they should not assume to be true any fact insinuated by a question,

and that questions, if not answered because of a sustained objection, should be

“completely disregarded.” As already noted (see pt. XX, ante), we have no reason

to believe the jury disobeyed those instructions. (People v. Osband, supra, 13

Cal.4th at p. 714.)

For these reasons, the trial court did not abuse its discretion in denying a

mistrial; the prosecutor’s questions were not incurably prejudicial in impact.

(People v. Williams (1997) 16 Cal.4th 153, 211; People v. Cooper (1991) 53

Cal.3d 771, 838-839.)

XXVI. Instructions on Witness Credibility

Defendant finds error, depriving him of the Eighth Amendment right to a

reliable sentencing procedure, in the trial court’s repetition at the penalty phase of

some, but not all, of the standard instructions previously given at the guilt phase

regarding the evaluation of evidence. In particular, he complains that nothing in


the penalty phase evidence justified instruction with CALJIC No. 2.20 on factors

to consider in assessing a witness’s credibility, or with CALJIC No. 2.21.2, stating

that a witness willfully false in one aspect of his or her testimony may be

distrusted as to others as well.

Defendant waived his objection by failing to raise it at trial when invited to

do so by the court. In discussion with the court and prosecutor, defense counsel

stated she had “mixed feelings” about giving evidentiary instructions at the

penalty phase. She agreed with the court’s assessment that she was “ambivalent”

on the subject and was not requesting such instructions. The prosecutor also stated

he was not requesting evidentiary instructions, but would not object if the defense

wanted them. The court then stated it would go through the instructions and

eliminate those neither side had asked for and that did not apply to the factual

decisions to be made in the penalty phase. As the court orally went through the

standard evidentiary instructions, defense counsel responded that she did think

CALJIC No. 2.01, on evaluation of circumstantial evidence, was appropriate

because it went to the question of lingering doubt as to defendant’s guilt. She

thought CALJIC No. 2.02, on proof of specific intent, was unnecessary, and

objected, as at the guilt phase, to CALJIC Nos. 2.03, 2.04 and 2.06, on inferring

consciousness of guilt. Counsel, however, made no response when the court came

to CALJIC Nos. 2.20 and 2.21.2, the instructions defendant now contends were

erroneously given. With full opportunity to object to the instructions, defendant

nonetheless failed in any way to alert the court to his claim they should not be


Nor did the giving of these instructions adversely affect defendant’s

substantial rights, so as to make the claim reviewable without an objection.

(§§ 1259, 1469.) Defendant does not claim the instructions are incorrect in any

respect. He argues only that some of the factors listed in CALJIC No. 2.20, and


CALJIC No. 2.21.2 as a whole, were logically inapplicable to any of the penalty

phase evidence, and that a juror might, in trying nonetheless to apply them, have

“draw[n] gossamer conclusions about character based on the uncontrolled

evaluation of mere appearances.” But we cannot assume any juror deliberated in

such an irrational way or that the jurors failed to follow the court’s standard

admonition (CALJIC No. 17.31), repeated in the penalty phase instructions, that

they were to disregard any instruction inapplicable to the facts as they found them.

There was thus no reasonable likelihood the jury was misled in the manner

defendant hypothesizes. (People v. Samayoa (1997) 15 Cal.4th 795, 833.) For the

same reason, waiver aside, giving these instructions did not deprive defendant of a

reliable penalty determination. (Ibid.)

XXVII. Instructions on Voluntary Intoxication in Relation to Prior

Violent Criminal Activity

The prosecution presented, under factor (b), evidence of defendant’s

commission of two prior assaults with deadly weapons (the Carter and Bianchi

incidents) and one prior battery on a police officer (the 1979 arrest incident). The

trial court instructed the jury that these criminal incidents could be considered in

aggravation only if the jury found beyond a reasonable doubt that defendant had

committed the criminal acts. The jury was further instructed on the elements of

assault with a deadly weapon and battery on a peace officer and told that both

crimes required only general criminal intent. Finally, the court gave CALJIC No.

4.20, as follows: “The law provides that no act committed by a person while in a

state of voluntary intoxication is less criminal by reason of his having been in such

condition. [¶] In the crime of Battery on a Peace Officer the fact the defendant

may have been voluntarily intoxicated is not a defense and does not relieve him of

responsibility for the crime.”


Without contesting the legal correctness of this instruction, defendant

argues it was prejudicially misleading in this case because, especially taken

together with the court’s instruction on section 190.3, factor (h) (hereafter factor

(h)),16 it suggested that “intoxication had no mitigating force for the factor (b)

crimes,” thereby unconstitutionally precluding consideration of facts in mitigation.

We conclude the jurors were not reasonably likely (People v. Samayoa,

supra, 15 Cal.4th at p. 833) to be misled in this manner. Neither the challenged

CALJIC No. 4.20 nor the instruction on factor (h) stated or implied that evidence

of intoxication during the factor (b) offenses could not be considered in mitigation,

and such an inference would have been contrary to the court’s other instructions

on determination of penalty. Thus, the jurors were told that they should make

their penalty decision based on all the evidence, that they could consider factor (b)

evidence aggravating or mitigating, and that they were free, in general, “to assign

whatever moral or sympathetic value you deem appropriate to each and all of the

various factors you are permitted to consider” and to include in their weighing

“any sympathetic or other aspect of the defendant’s character or record that the

defendant offers as a basis for a sentence less than death.” (Italics added.) The

distinction between a legal excuse or justification for criminal behavior and a

circumstance mitigating its moral culpability was also explained, albeit in the

context of section 190.3, factor (a), circumstances of the capital offense. A juror


The court told the jury it could consider in mitigation whether “at the time

of the offense the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was impaired as a
result of mental disease or defect or the effects of intoxication.” (See factor (h).)
Defendant argues that because “the offense” in this instruction clearly refers to the
capital crimes, it reinforced the impression that intoxication did not mitigate prior
violent crimes introduced under factor (b).


attentive to the instructions as a whole was not reasonably likely to conclude that

because voluntary intoxication was not a legal defense to assault with a deadly

weapon or battery on a peace officer it could not be considered as a mitigating

circumstance bearing on defendant’s history.

We observe as well that defendant did not request any clarification or

modification of the now challenged instruction, which he concedes correctly states

the law. The court had no duty to modify the instruction in the absence of such a

request. (People v. Davis (1995) 10 Cal.4th 463, 543.) Nor was there any

potential for prejudice. Only as to the 1979 arrest incident was there any evidence

of defendant’s intoxication.17 That battery was the least serious of the factor (b)

violent crimes presented—the violence consisted of defendant kicking the officer

in the leg—and any restriction the jury might have understood to apply to

consideration of the circumstances of that offense could not, on any standard, be

considered prejudicial given the two prior assaults and the circumstances of the

capital crimes.

XXVIII. Penalty Phase Prejudice from Guilt Phase Errors

Defendant, referencing nine claims of error he has made regarding the

conduct of the trial on guilt and special circumstances, contends that even if those

asserted errors do not justify complete reversal of the judgment, they were

prejudicial at the penalty phase, especially on the question of lingering doubt, and

unconstitutionally affected the reliability of the penalty verdict, assertedly in

violation of the Eighth and Fourteenth Amendments to the federal Constitution.

We have not, however, upheld any of the specified claims of error, and as to the


Indeed, in argument to the jury, defense counsel, delineating the lack of

similarity between the capital crimes and the Carter and Bianchi assaults, stressed
the lack of evidence of intoxication in those prior assaults.


two specified claims where we have assumed error for purposes of discussion (see

pts. X & XIV, ante), we have not found prejudice as to guilt or special

circumstances. For the same reason, any error in these two respects did not

deprive defendant of a reliable penalty decision or prevent him from seeking a life

sentence on grounds of lingering doubt as to his guilt.

XXIX. Combined Prejudice of Penalty Phase Errors

Not having found any error in the conduct of the penalty trial, nor even

assumed any for purposes of discussion, we reject defendant’s contention that the

errors were prejudicial in combination.

XXX. Double Jeopardy Bar After Automatic Appeal

Defendant contends that because his prior appeal, upon which this court

reversed the judgment because of juror misconduct (People v. Holloway, supra, 50

Cal.3d at p. 1103), was taken automatically under section 1239, subdivision (b),

the constitutional guarantees against double jeopardy precluded his retrial.18 He

reasons that while a criminal appellant ordinarily is deemed to have waived double

jeopardy protection by taking the appeal, no such waiver can be imputed when the

appeal is taken automatically, by operation of law.

We disagree. We previously rejected such a claim in People v. Quicke

(1969) 71 Cal.2d 502, 524, albeit with minimal discussion of the issue. The claim

has also been persuasively rejected by the California Court of Appeal (People v.


Defendant acknowledges he did not plead prior jeopardy as a bar to retrial

(§§ 1016, 1017) and so may be deemed to have forfeited the defense. (People v.
(1999) 21 Cal.4th 335, 343-344.) He also claims, however, that trial
counsel rendered ineffective assistance in failing to interpose that plea. We
consider the merits of the double jeopardy issue in response to the ineffective
assistance claim.


Powell (1974) 40 Cal.App.3d 107, 142-144) and by the federal court of appeals

(Massie v. Hennessy (9th Cir. 1989) 875 F.2d 1386, 1388-1389).

In People v. Quicke, supra, 71 Cal.2d 502, a capital defendant was given a

new penalty trial after reversal of his death penalty on automatic appeal (see

People v. Quicke (1964) 61 Cal.2d 155) and was again sentenced to death. On his

second automatic appeal, he maintained double jeopardy protections had barred

his penalty retrial. We held that the “contention cannot stand; we set aside the

judgment in the first penalty trial at the request of defendant.” (People v. Quicke,

supra, 71 Cal.2d at p. 524.)

The same is true in defendant’s case. Though defendant and his attorneys

were, like Quicke and his attorneys, relieved by section 1239 of the burden of

filing a notice of appeal or otherwise initiating the first automatic appeal,

defendant, through appellate counsel, pursued that appeal, seeking and obtaining

reversal of the judgment from this court. In his first appeal, “[d]efendant

contend[ed] that jury misconduct during the guilt phase of the trial requires

reversal of the judgment.” (People v. Holloway, supra, 50 Cal.3d at p. 1106.)19

This court agreed and reversed for that reason. Thus, as in People v. Quicke, we

“set aside the judgment in the first . . . trial at the request of defendant.” (People v.

Quicke, supra, 71 Cal.2d at p. 524.) Though the first appeal was automatic,

reversal was not. As “the original conviction has, at the defendant’s behest, been

wholly nullified and the slate wiped clean” (North Carolina v. Pearce (1969) 395

U.S. 711, 721, italics added), the state was free to retry defendant on the charges.


Nothing in our prior opinion indicates, and defendant does not now suggest,

that counsel in his first appeal pursued the appeal, briefed the claim of jury
misconduct, or sought reversal of the judgment against defendant’s wishes. (Cf.
People v. Massie, supra, 19 Cal.4th at p. 562.)


“The appeal is fairly characterized as [the appellant’s] even though it is

mandatory, and his waiver of any defense of double jeopardy must be implied by

operation of law.” (Massie v. Hennessy, supra, 875 F.2d at p. 1389.)

The rationale for permitting retrial after a successful automatic appeal, as

after an appeal initiated by the defendant, was further explained in People v.

Powell, supra, 40 Cal.App.3d 107. The defendants there claimed that because

their prior reversals came in automatic appeals under section 1239, the appeals

could not be considered waivers of double jeopardy rights. The appellate court

agreed the automatic appeal is mandatory, but observed “the appeal is certainly

not detrimental to the defendant. On the contrary, a substantial benefit is afforded

by this procedure, both to the accused and to society, when the most severe of all

penalties has been imposed. It is not logical that its provisions should operate to

the benefit of the accused and to the detriment of society.” (People v. Powell,

supra, at p. 143.)

Similarly, in Massie v. Hennessy, the Ninth Circuit emphasized that

California’s automatic appeal procedure serves the vital goal, one mandated by the

federal Constitution, of “ensuring against arbitrariness and caprice in a murder

conviction and imposition of the death sentence. This most important concern

must override any double jeopardy objection Massie may have.” (Massie v.

Hennessy, supra, 875 F.2d at p. 1388.) As the United States Supreme Court has

explained in upholding retrial after a defendant’s successful appeal, “ ‘It would be

a high price indeed for society to pay were every accused granted immunity from

punishment because of any defect sufficient to constitute reversible error in the

proceedings leading to conviction.’ ” (North Carolina v. Pearce, supra, 395 U.S.

at p. 721, fn. 18, quoting United States v. Tateo (1964) 377 U.S. 463, 466.) That

price would be truly exorbitant were California forced to choose between

abandoning the automatic appeal procedure, thereby increasing the likelihood that


errors in capital proceedings would go uncorrected and unremedied, and

immunizing from retrial, because of errors not going to the sufficiency of the

evidence of guilt, defendants charged with the most heinous crimes. The existing

general rule of automatic appeal with the possibility of retrial after reversal serves

both the accused’s right to be given a fair trial and “ ‘the societal interest in

punishing one whose guilt is clear after he has obtained such a trial.’ ” (Ibid.)

Defendant does not persuade us the rule violates double jeopardy principles.

XXXI. Constitutionality of Death Penalty Statute

Defendant contends various aspects of California’s capital sentencing

procedures violate the Sixth, Eighth and Fourteenth Amendments to the federal

Constitution. We have repeatedly rejected defendant’s claims in prior decisions,

and defendant’s argument offers no grounds for reconsidering these holdings. The

federal Constitution does not require written findings or unanimous agreement of

the jurors on aggravating and mitigating circumstances, nor that each juror find

death the appropriate sentence beyond a reasonable doubt, nor that an intercase

proportionality review be conducted of the death sentence returned by the jury.

(People v. Snow (2003) 30 Cal.4th 43, 126; People v. Kipp (2001) 26 Cal.4th

1100, 1137, 1139; People v. Lucero (2000) 23 Cal.4th 692, 741; People v. Majors,

supra, 18 Cal.4th at p. 432; People v. Samayoa, supra, 15 Cal.4th at p. 862.)



The judgment is affirmed.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Holloway

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: June 17, 2004

County: Sacramento
Judge: A. Richard Backus


Attorneys for Appellant:

Mark D. Greenberg, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, J. Robert Jibson, Ward A. Campbell and Raymond L. Brosterhous, Deputy
Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark D. Greenberg
484 Lake Park Avenue
Oakland, CA 94610
(510) 452-3126

Raymond L. Brosterhous
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-7851


Opinion Information
Date:Docket Number:
Thu, 06/17/2004S029550

1The People (Respondent)
Represented by Attorney General - Sacramento Office
Raymond Brosterhous, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Holloway, Duane (Appellant)
San Quentin State Prison
Represented by Mark D. Greenberg
Attorney at Law
484 Lake Park Ave., PMB No. 429
Oakland, CA

Jun 17 2004Opinion: Affirmed

Oct 27 1992Judgment of death
Nov 2 1992Filed certified copy of Judgment of Death Rendered
Apr 1 1997Counsel appointment order filed
  Mark D. Greenberg Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings.
Oct 8 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Oct 10 1997Extension of Time application Granted
  To Applt To 12-5-97 To request Corr. of Record.
Dec 1 1997Application for Extension of Time filed
  By Applt to request correction of the Record.
Dec 2 1997Extension of Time application Granted
  To Applt To 2-3-98 To request Corr. of Record.
Feb 4 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Feb 9 1998Extension of Time application Granted
  To Applt To 4-6-98 To request Corr. of Record.
Feb 24 1998Compensation awarded counsel
Mar 19 1998Compensation awarded counsel
Apr 6 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 10 1998Extension of Time application Granted
  To Applt To 5-6-98 To request Corr. of Record.
May 4 1998Received:
  Copy of Applt's motion to correct Record; request for Additional Record; and Applic. to Settle Record.
Feb 11 1999Record on appeal filed
  C-25 (7,044 Pp.) and R-27 (8,250 Pp.); Clerk's Transcript includes 4,644 pages of Juror Questionnaires.
Feb 11 1999Appellant's opening brief letter sent, due:
Mar 22 1999Application for Extension of Time filed
  To file Aob.
Mar 23 1999Extension of Time application Granted
  To 5-24-99 To file AOB
May 25 1999Application for Extension of Time filed
  To file Aob.
May 25 1999Extension of Time application Granted
  To 7-23-99 To file AOB
Jul 22 1999Application for Extension of Time filed
  To file Aob.
Jul 28 1999Extension of Time application Granted
  To 9-21-99 To Fiel AOB
Sep 20 1999Application for Extension of Time filed
  To file Aob.
Sep 22 1999Extension of Time application Granted
  To 11/22/99 To file Aob.
Nov 17 1999Application for Extension of Time filed
  To file Aob.
Nov 22 1999Filed:
  Supplemental Declaration in support of Eot request
Dec 2 1999Extension of Time application Granted
  To 1/21/2000 To file Aob.
Jan 20 2000Application for Extension of Time filed
  To file Aob.
Jan 25 2000Extension of Time application Granted
  To 3/21/2000 To file Aob.
Mar 15 2000Compensation awarded counsel
  Atty Greenberg
Mar 21 2000Application for Extension of Time filed
  To file Aob.
Mar 24 2000Extension of Time application Granted
  To 5/22/2000 To file Aob.
May 22 2000Application for Extension of Time filed
  To file Aob.
May 26 2000Extension of Time application Granted
  To 7/21/2000 To file Aob.
Jul 12 2000Application for Extension of Time filed
  To file AOB.
Jul 20 2000Extension of Time application Granted
  To 9/19/2000 to file AOB. No further ext. of time are contemplated.
Sep 19 2000Application for Extension of Time filed
  To file AOB. (10th request)
Sep 21 2000Extension of Time application Granted
  to 11-20-2000 to file AOB. No further extensions of time will be granted.
Nov 20 2000Appellant's opening brief filed
  (281 pages)
Nov 21 2000Filed:
  applt's request for transfer of original exhibits from superior court.
Dec 14 2000Application for Extension of Time filed
  To file resp's brief. (1st request)
Dec 15 2000Filed:
  Amended application for ext. of time to file resp's brief.
Dec 20 2000Extension of Time application Granted
  To 2/20/2001 to file resp's brief.
Jan 5 2001Compensation awarded counsel
  Atty Greenberg
Feb 9 2001Counsel's status report received (confidential)
Feb 14 2001Application for Extension of Time filed
  To file resp's brief. (2nd request)
Feb 21 2001Extension of Time application Granted
  To 4/23/2001 to file resp's brief.
Apr 12 2001Application for Extension of Time filed
  to file resp's brief. (3rd request)
Apr 18 2001Extension of Time application Granted
  To 6/22/2001 to file Respondent's Brief.
Jun 14 2001Application for Extension of Time filed
  To file resp.'s brief. (4th request)
Jun 25 2001Filed:
  resp's suppl applic. for extension of time to file resp's brief.
Jun 29 2001Extension of Time application Granted
  to 8/21/01 to file respondent's brief
Aug 14 2001Application for Extension of Time filed
  To file resp.'s brief. (5th request)
Aug 20 2001Extension of Time application Granted
  To 10/22/2001 to file resp.'s brief.
Oct 3 2001Respondent's Brief filed. (239 pp.)
Oct 5 2001Counsel's status report received (confidential)
Oct 25 2001Application for Extension of Time filed
  To file reply brief. (1st request)
Oct 26 2001Extension of Time application Granted
  To 12/24/2001 to file reply brief.
Dec 18 2001Request for extension of time filed
  To file reply brief. (2nd request)
Dec 18 2001Counsel's status report received (confidential)
Dec 21 2001Extension of time granted
  To 2/22/2002 to file reply brief. The court anticiaptes only one further extension totaling 30 additional days is contemplated.
Feb 7 2002Filed:
  Declaration of Atty. Mark D. Greenberg re habeas consultation (confidential).
Feb 13 2002Compensation awarded counsel
  Atty Greenberg
Feb 19 2002Counsel's status report received (confidential)
Feb 19 2002Request for extension of time filed
  To file reply brief. (3rd request)
Feb 22 2002Extension of time granted
  To 4/23/2002 to file reply brief.
Apr 19 2002Request for extension of time filed
  To file reply brief. (4th request)
Apr 23 2002Extension of time granted
  To 6/24/2002 to file reply brief. Counsel anticipates filing the brief by 6/22/2002. No further extension is contemplated.
Jun 19 2002Appellant's reply brief filed
  (109 pp.)
Sep 20 2002Counsel's status report received (confidential)
Oct 25 2002Filed:
  Notice of errata to appellant's reply brief.
Dec 4 2002Counsel's status report received (confidential)
Apr 8 2003Counsel's status report received (confidential)
Jun 9 2003Compensation awarded counsel
  Atty Greenberg
Jun 10 2003Counsel's status report received (confidential)
Jul 7 2003Related habeas corpus petition filed (concurrent)
  No. S117268
Dec 23 2003Filed:
  Declaration of attorney Mark D. Greenberg regarding "Stage 5 Payment" (confidential).
Jan 5 2004Compensation awarded counsel
  Atty Greenberg
Jan 22 2004Compensation awarded counsel
  Atty Greenberg
Feb 3 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as April calendar, to be held the week of April 5, 2004 in Los Angeles. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
Feb 10 2004Filed letter from:
  Counsel for respondent, dated 2/9/2004, requesting that oral argument be scheduled for either April 7, or April 8, 2004.
Feb 10 2004Filed letter from:
  Counsel for respondent, dated 2/9/2004, regarding focus issues for oral argument.
Mar 10 2004Case ordered on calendar
  4-6-04, 2pm, L.A.
Mar 19 2004Filed letter from:
  Appellant's counsel, dated 3/18/2004, re focus issues for oral argument.
Apr 6 2004Cause argued and submitted
Apr 21 2004Compensation awarded counsel
  Atty Greenberg
Jun 17 2004Opinion filed: Judgment affirmed in full
  OPINION BY: Werdegar, J. ---- joined by: George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ.
Jul 2 2004Rehearing petition filed
  by petitioner. (2768 words - 11 pp.)
Jul 7 2004Time extended to consider modification or rehearing
  to 9/15/2004 or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 28 2004Filed:
  appellant's Request for permission to file supplemental petition for rehearing. (2557-word supplemental petition submitted under separate cover)
Aug 3 2004Order filed
  Appellant's "Request for Permission to File Supplemental Petition for Rehearing" is granted.
Aug 3 2004Filed:
  appellant's supplemental petition for rehearing. (2,557 words; 10 pp.)
Aug 6 2004Letter sent to:
  Respondent requesting answer to petition for rehearing. Answer to be served and filed upon appellant and this court on or before 8/20/2004.
Aug 9 2004Request for extension of time filed
  by respondent to file answer to appellant's rehering petition.
Aug 18 2004Extension of time granted
  to 8/27/2004 to respondent to file answer to rehearing petiton.
Aug 25 2004Answer to rehearing petition filed
  by respondent. (4379 words - 17 pp.)
Sep 1 2004Rehearing denied
  Petition and supplemental petition for rehearing denied.
Sep 1 2004Remittitur issued (AA)
Sep 7 2004Received:
  receipt for remittitur.
Sep 9 2004Motion filed (AA)
  by appellant to recall remittitur.
Sep 13 2004Order filed (150 day statement)
Sep 22 2004Motion denied
  Defendant Duane Holloway's September 9, 2004 "Motion to Recall Remittitur" is denied. George, C.J., was absent and did not participate.
Nov 23 2004Received:
  Copy of appellant's cert petition. (79 pp. - excluding appendix)
Nov 29 2004Received:
  Letter from U.S.S.C., dated 11/16/2004, advising cert petition filed on 11/22/2004 as No. 04-7419.
Feb 22 2005Certiorari denied by U.S. Supreme Court
Oct 30 2006Related habeas corpus petition filed (post-judgment)
  No. S147749

Nov 20 2000Appellant's opening brief filed
Oct 3 2001Respondent's Brief filed. (239 pp.)
Jun 19 2002Appellant's reply brief filed
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