Filed 6/17/04
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S029550
v.
DUANE HOLLOWAY,
Sacramento
County
Defendant and Appellant. )
Super.
Ct.
No.
65972
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
1
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.
FACTS
Guilt Phase Evidence
Prosecution
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
2
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.)
2
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
videos.
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
3
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
4
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
entry.
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
5
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 father’s
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
6
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
night.
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.
3
Miranda v. Arizona (1966) 384 U.S. 436.
7
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.
Defense
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
8
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
9
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
10
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.
11
Penalty Phase Evidence
Prosecution
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
12
out of their squad car, and kicked the testifying officer in the leg; he was then
subdued with mace and taken to county jail.
Defense
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
13
apartment. He stood guard for several nights, until Wesner felt the danger had
passed.
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
4
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
worker.
14
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.
DISCUSSION
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
promise.
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
15
yelling, and “you got her around the throat. Tried to get her to stop. She wouldn’t
stop.”
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. . . .
16
“Holloway: I didn’t say ah. . . I did, I drank more than I said I did.” (Italics
added.)
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
officers.”5
“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
5
The court granted the motion as to statements made later, after defendant
asked to see an attorney.
17
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
involuntary.
“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
6
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.
18
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
19
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
20
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,
21
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.
22
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
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)
23
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.)
24
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
defendant.
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
a.m.
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
25
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
26
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
27
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
28
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
decision.
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
29
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,
30
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.”
31
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,
950-951.)
32
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
33
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.
34
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
35
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
Statement
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.”
36
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
37
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
8
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.
38
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
39
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.”
40
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.
9
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.
41
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
42
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
43
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
44
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
45
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
10
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.
46
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.
47
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
added.)
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,
48
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.
49
“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.
11
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.”
50
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.
51
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,
Diane.
52
XIV. Incomplete Instructions on Relationship Between Murder and
Burglary.
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
53
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
54
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
55
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
kill.
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,
56
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,
57
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
also
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”).
58
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
admissible.
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
see
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).
59
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.
60
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
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)
61
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.
62
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.
63
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
64
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
65
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
66
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
distraction.
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
prisoner.”
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?
67
“A. Yes, sir.
“Q. And on death row isn’t it more likely that the celling will be individual
celling?
“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
68
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
defendant.”
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
was.
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
disagree.
15
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
line.”
69
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
70
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
given.
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
71
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.”
72
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
16
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).
73
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
17
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.
74
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.
18
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.
Williams (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.
75
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.
19
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.)
76
“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
77
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.)
78
DISPOSITION
The judgment is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.
79
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. S029550
Date Filed: June 17, 2004
__________________________________________________________________________________
Court: Superior
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.
80
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
81
Opinion Information
| Date: | Docket Number: |
| Thu, 06/17/2004 | S029550 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office Raymond Brosterhous, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Holloway, Duane (Appellant) San Quentin State Prison Represented by Mark D. Greenberg Attorney at Law 484 Lake Park Ave., PMB No. 429 Oakland, CA |
| Disposition | |
| Jun 17 2004 | Opinion: Affirmed |
| Dockets | |
| Oct 27 1992 | Judgment of death |
| Nov 2 1992 | Filed certified copy of Judgment of Death Rendered 10-27-92. |
| Apr 1 1997 | Counsel appointment order filed Mark D. Greenberg Is appointed to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings. |
| Oct 8 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Oct 10 1997 | Extension of Time application Granted To Applt To 12-5-97 To request Corr. of Record. |
| Dec 1 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Dec 2 1997 | Extension of Time application Granted To Applt To 2-3-98 To request Corr. of Record. |
| Feb 4 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Feb 9 1998 | Extension of Time application Granted To Applt To 4-6-98 To request Corr. of Record. |
| Feb 24 1998 | Compensation awarded counsel |
| Mar 19 1998 | Compensation awarded counsel |
| Apr 6 1998 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Apr 10 1998 | Extension of Time application Granted To Applt To 5-6-98 To request Corr. of Record. |
| May 4 1998 | Received: Copy of Applt's motion to correct Record; request for Additional Record; and Applic. to Settle Record. |
| Feb 11 1999 | Record 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 1999 | Appellant's opening brief letter sent, due: 3-23-99. |
| Mar 22 1999 | Application for Extension of Time filed To file Aob. |
| Mar 23 1999 | Extension of Time application Granted To 5-24-99 To file AOB |
| May 25 1999 | Application for Extension of Time filed To file Aob. |
| May 25 1999 | Extension of Time application Granted To 7-23-99 To file AOB |
| Jul 22 1999 | Application for Extension of Time filed To file Aob. |
| Jul 28 1999 | Extension of Time application Granted To 9-21-99 To Fiel AOB |
| Sep 20 1999 | Application for Extension of Time filed To file Aob. |
| Sep 22 1999 | Extension of Time application Granted To 11/22/99 To file Aob. |
| Nov 17 1999 | Application for Extension of Time filed To file Aob. |
| Nov 22 1999 | Filed: Supplemental Declaration in support of Eot request |
| Dec 2 1999 | Extension of Time application Granted To 1/21/2000 To file Aob. |
| Jan 20 2000 | Application for Extension of Time filed To file Aob. |
| Jan 25 2000 | Extension of Time application Granted To 3/21/2000 To file Aob. |
| Mar 15 2000 | Compensation awarded counsel Atty Greenberg |
| Mar 21 2000 | Application for Extension of Time filed To file Aob. |
| Mar 24 2000 | Extension of Time application Granted To 5/22/2000 To file Aob. |
| May 22 2000 | Application for Extension of Time filed To file Aob. |
| May 26 2000 | Extension of Time application Granted To 7/21/2000 To file Aob. |
| Jul 12 2000 | Application for Extension of Time filed To file AOB. |
| Jul 20 2000 | Extension of Time application Granted To 9/19/2000 to file AOB. No further ext. of time are contemplated. |
| Sep 19 2000 | Application for Extension of Time filed To file AOB. (10th request) |
| Sep 21 2000 | Extension of Time application Granted to 11-20-2000 to file AOB. No further extensions of time will be granted. |
| Nov 20 2000 | Appellant's opening brief filed (281 pages) |
| Nov 21 2000 | Filed: applt's request for transfer of original exhibits from superior court. |
| Dec 14 2000 | Application for Extension of Time filed To file resp's brief. (1st request) |
| Dec 15 2000 | Filed: Amended application for ext. of time to file resp's brief. |
| Dec 20 2000 | Extension of Time application Granted To 2/20/2001 to file resp's brief. |
| Jan 5 2001 | Compensation awarded counsel Atty Greenberg |
| Feb 9 2001 | Counsel's status report received (confidential) |
| Feb 14 2001 | Application for Extension of Time filed To file resp's brief. (2nd request) |
| Feb 21 2001 | Extension of Time application Granted To 4/23/2001 to file resp's brief. |
| Apr 12 2001 | Application for Extension of Time filed to file resp's brief. (3rd request) |
| Apr 18 2001 | Extension of Time application Granted To 6/22/2001 to file Respondent's Brief. |
| Jun 14 2001 | Application for Extension of Time filed To file resp.'s brief. (4th request) |
| Jun 25 2001 | Filed: resp's suppl applic. for extension of time to file resp's brief. |
| Jun 29 2001 | Extension of Time application Granted to 8/21/01 to file respondent's brief |
| Aug 14 2001 | Application for Extension of Time filed To file resp.'s brief. (5th request) |
| Aug 20 2001 | Extension of Time application Granted To 10/22/2001 to file resp.'s brief. |
| Oct 3 2001 | Respondent's Brief filed. (239 pp.) |
| Oct 5 2001 | Counsel's status report received (confidential) |
| Oct 25 2001 | Application for Extension of Time filed To file reply brief. (1st request) |
| Oct 26 2001 | Extension of Time application Granted To 12/24/2001 to file reply brief. |
| Dec 18 2001 | Request for extension of time filed To file reply brief. (2nd request) |
| Dec 18 2001 | Counsel's status report received (confidential) |
| Dec 21 2001 | Extension 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 2002 | Filed: Declaration of Atty. Mark D. Greenberg re habeas consultation (confidential). |
| Feb 13 2002 | Compensation awarded counsel Atty Greenberg |
| Feb 19 2002 | Counsel's status report received (confidential) |
| Feb 19 2002 | Request for extension of time filed To file reply brief. (3rd request) |
| Feb 22 2002 | Extension of time granted To 4/23/2002 to file reply brief. |
| Apr 19 2002 | Request for extension of time filed To file reply brief. (4th request) |
| Apr 23 2002 | Extension 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 2002 | Appellant's reply brief filed (109 pp.) |
| Sep 20 2002 | Counsel's status report received (confidential) |
| Oct 25 2002 | Filed: Notice of errata to appellant's reply brief. |
| Dec 4 2002 | Counsel's status report received (confidential) |
| Apr 8 2003 | Counsel's status report received (confidential) |
| Jun 9 2003 | Compensation awarded counsel Atty Greenberg |
| Jun 10 2003 | Counsel's status report received (confidential) |
| Jul 7 2003 | Related habeas corpus petition filed (concurrent) No. S117268 |
| Dec 23 2003 | Filed: Declaration of attorney Mark D. Greenberg regarding "Stage 5 Payment" (confidential). |
| Jan 5 2004 | Compensation awarded counsel Atty Greenberg |
| Jan 22 2004 | Compensation awarded counsel Atty Greenberg |
| Feb 3 2004 | Oral 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 2004 | Filed 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 2004 | Filed letter from: Counsel for respondent, dated 2/9/2004, regarding focus issues for oral argument. |
| Mar 10 2004 | Case ordered on calendar 4-6-04, 2pm, L.A. |
| Mar 19 2004 | Filed letter from: Appellant's counsel, dated 3/18/2004, re focus issues for oral argument. |
| Apr 6 2004 | Cause argued and submitted |
| Apr 21 2004 | Compensation awarded counsel Atty Greenberg |
| Jun 17 2004 | Opinion filed: Judgment affirmed in full OPINION BY: Werdegar, J. ---- joined by: George, C.J., Kennard, Baxter, Chin, Brown, Moreno, JJ. |
| Jul 2 2004 | Rehearing petition filed by petitioner. (2768 words - 11 pp.) |
| Jul 7 2004 | Time 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 2004 | Filed: appellant's Request for permission to file supplemental petition for rehearing. (2557-word supplemental petition submitted under separate cover) |
| Aug 3 2004 | Order filed Appellant's "Request for Permission to File Supplemental Petition for Rehearing" is granted. |
| Aug 3 2004 | Filed: appellant's supplemental petition for rehearing. (2,557 words; 10 pp.) |
| Aug 6 2004 | Letter 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 2004 | Request for extension of time filed by respondent to file answer to appellant's rehering petition. |
| Aug 18 2004 | Extension of time granted to 8/27/2004 to respondent to file answer to rehearing petiton. |
| Aug 25 2004 | Answer to rehearing petition filed by respondent. (4379 words - 17 pp.) |
| Sep 1 2004 | Rehearing denied Petition and supplemental petition for rehearing denied. |
| Sep 1 2004 | Remittitur issued (AA) |
| Sep 7 2004 | Received: receipt for remittitur. |
| Sep 9 2004 | Motion filed (AA) by appellant to recall remittitur. |
| Sep 13 2004 | Order filed (150 day statement) |
| Sep 22 2004 | Motion 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 2004 | Received: Copy of appellant's cert petition. (79 pp. - excluding appendix) |
| Nov 29 2004 | Received: Letter from U.S.S.C., dated 11/16/2004, advising cert petition filed on 11/22/2004 as No. 04-7419. |
| Feb 22 2005 | Certiorari denied by U.S. Supreme Court |
| Oct 30 2006 | Related habeas corpus petition filed (post-judgment) No. S147749 |
| Briefs | |
| Nov 20 2000 | Appellant's opening brief filed |
| Oct 3 2001 | Respondent's Brief filed. (239 pp.) |
| Jun 19 2002 | Appellant's reply brief filed |
