IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
JACKIE RAY HOVARTER,
Defendant and Appellant. )
A Humboldt County jury convicted Jackie Ray Hovarter in 1988 of the first
degree murder of Danna Elizabeth Walsh. (Pen. Code, § 187; all further statutory
references are to this code unless otherwise indicated.) It also convicted defendant
of kidnapping and forcibly raping Walsh (§§ 207, subd. (a), 261, former subd. (2),
now see id., subd. (a)(2)) and sustained special circumstance allegations that he
murdered Walsh while engaged in the commission of a kidnapping and rape
(§ 190.2, former subd. (a)(17)(ii) & (iii), now subd. (a)(17)(B) & (C)). The jury
was unable to reach a verdict as to penalty, and the trial court declared a mistrial.
Defendant, with the agreement of counsel, waived his right to a jury for the
penalty retrial, and in 1989, the trial court, sitting as the trier of fact, returned a
verdict of death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is
automatic. (§ 1239, subd. (b).)
As explained below, we conclude the guilt and penalty judgments should be
affirmed in their entirety.
I. GUILT PHASE
1. Discovery of Danna Walsh’s Body
A young teenager and three friends went fishing along the Eel River in
Scotia, Humboldt County, on August 24, 1984. Afterwards, they stopped near the
Scotia/Rio Dell Bridge and discovered the body of a young woman. Finding no
pulse, they summoned the police. The police examined the body, which lay along
the river about 150 yards from the water. The victim was fully clothed except for
shoes and socks. Her panties were inside out, and although they were damp at the
bottom, they were dry at the top. Some yellow nylon rope was wound several
times around her neck. Subsequent investigation determined the victim was
Danna Elizabeth Walsh, who had been reported missing in Willits.
2. Circumstances Surrounding Walsh’s Disappearance
Louisiana Pacific operated a pulp mill in Samoa, California, near Eureka.
The mill began loading trucks with wood pulp around 7:00 a.m., but truckers
arrived early to get in line, as the first truck in line was the first to be loaded and
thus the first to leave. Employees at the mill’s front gate noted in a log the name
of the driver, the trucking firm, either the vehicle registration number or license
plate number of the truck, and the time each truck entered the mill. After
receiving their load of wood pulp, the truckers departed and a gate employee noted
in the same log the departure time of each truck.
Defendant lived in San Pablo in the Bay Area and drove a truck for a living.
On a typical day he would leave his home around 10:00 p.m. and drive north on
Highway 101 to the Louisiana Pacific pulp mill, generally arriving shortly after
4:00 a.m. He would then wait until 6:30 or 7:00 a.m., have his truck loaded, and
drive it down to the container yard in Oakland. Jack Davis, the shipping foreman,
testified defendant was usually one of the first truckers in line and was generally
already in line when Davis arrived at the mill at 6:00 a.m. On the two days prior
to Walsh’s murder, the log sheets showed defendant had arrived at the mill at the
usual time, 4:07 a.m. and 4:09 a.m., respectively. On August 24, 1984, the day of
the murder, however, he did not arrive until 6:28 a.m.
Before the murder, Walsh visited her older brother, Randy Robertson, in
San Ramon. She came to the Bay Area with a friend named Melinda in order to
buy school clothes. She took a bus back to Willits around 8:30 or 9:00 a.m. on
Thursday, August 23, 1984.
Dennis Haun, 21 years old in 1984, lived in Willits in a house
approximately one-quarter mile from Highway 101. He admitted to having had a
sexual relationship with Walsh. On August 23, 1984, Haun encountered Walsh
with some of her friends around 6:00 or 7:00 p.m. in the parking lot of the
Safeway grocery store. The group decided to go to Haun’s house for a party. The
group was drinking, and when he and Walsh went into the bedroom together he
was “pretty well drunk.” He passed out and was “not positive” whether or not he
had had sex with Walsh. When he awakened later that night, naked, he found
Francis McKinnon was working the graveyard shift — midnight to 8:00
a.m. — at the Circle K convenience store in Willits in August 1984. The store is
located on Highway 101. She knew Walsh by name and by sight, but did not
know her personally. McKinnon saw Walsh enter the store in the early morning
hours — sometime after midnight but before 2:00 a.m. — on August 24, 1984.
Walsh appeared to be alone, and she asked McKinnon if she had seen a boy in a
red hat. McKinnon told her she had not. Walsh left the store, turned left, and
walked in the direction of Highway 101. She appeared upset and could have been
crying. After Walsh’s murder, police showed McKinnon some photographs; she
recognized defendant’s picture as someone who previously had been in the store,
but she could not be sure when.
3. Forensic Evidence
A medical examination determined Walsh had been killed by asphyxia due
to strangulation, resulting in the deprivation of oxygen to her brain. Under such
circumstances, the brain will die within five to eight minutes. The hyoid bone in
her throat was fractured, and her larynx was bruised. She had apparently been
thrown or dropped from the bridge, landing on her left side, and probably striking
some trees on her way down. Some “faint red marks” on her ankles suggested the
possibility she had been bound with some soft material. Her jeans and underwear
bore evidence of urine. Her bladder was about half full; sometimes a person’s
bladder will empty partially or completely at death.
Walsh’s body bore no evidence of sexual trauma to suggest that she had
been raped. Vaginal swabs of the victim, however, revealed the presence of
sperm, although testing of two separate vaginal swabs for blood type, PGM
(phosphoglucomutase) enzymes, and secretor status of possible donors was
inconclusive, partially because it could not be determined whether Walsh herself
was a secretor or a nonsecretor, and partially because of the possibility that she
had recently had sexual intercourse with Dennis Haun. Based on the fragmentary
blood evidence, however, defendant could not be eliminated as the donor of the
Comparing the body’s temperature and the ambient temperature, a
pathologist estimated Walsh had been killed around 5:00 a.m. on August 24, 1984.
4. Crimes Against A.L.
Before the trial in this case, defendant was convicted of the rape,
kidnapping, and attempted murder of A.L. The crimes against A.L. were
committed four months after the murder of Walsh. The trial court admitted the
evidence of these offenses in defendant’s trial for the kidnap, rape, and murder of
A.L. testified that on December 11, 1984, she was a 15-year-old 10th
grader living in Fields Landing near Eureka, Humboldt County. She usually took
an 8:00 a.m. bus to her school in Fortuna, but missed it that day so she started
hitchhiking. Defendant, driving his brown truck and wearing a maroon shirt,
stopped to give her a ride. He did not stop in Fortuna, however. He eventually
pulled off the highway and pulled out a short, rusty pocketknife. A.L. grabbed for
the knife, cutting her finger. When she attempted to get out of the truck, defendant
pulled her back in and said he would not hurt her if she cooperated.
Defendant pushed A.L. into the sleeper compartment of the truck and told
her to remove her clothes. She complied, and he bound her with black
electrician’s tape. He touched her vagina, but then decided to drive somewhere
safer. As he drove, A.L. tried to bite off the tape binding her, but defendant told
her to stop. She noticed a silver-colored revolver in the truck. Around this time,
defendant told her he knew what he was doing. Defendant eventually stopped the
truck and tied her hands with strips of cloth cut from a T-shirt. He then raped her
before starting up the truck again.
A.L. saw a sign for Willits and realized they were driving south. Defendant
told her he would find a safe place and then leave her blindfolded, tied to a tree.
He also told her he could not live in jail and that he would die if sent to jail. At
some point, defendant stopped the truck near the Russian River. He allowed A.L.
to dress and then the two of them got out of the truck. A.L.’s hands were still
bound, and she noticed defendant was carrying a pillow. Defendant led her down
to the river and then tied her to a tree. He took the gun from his pocket and placed
the pillow over it. A.L. asked him whether he was going to shoot her. He said he
would not and then shot her in the head. She became dizzy, fell to the ground, and
tried to remain motionless. Defendant kicked her twice and asked her whether she
was dead. He then shot her in the head again. Miraculously, neither bullet
penetrated her cranium. Defendant untied her from the tree, dragged her to the
river, and tried to roll her in. She got into the current and floated away, managing
to untie her hands. She made her way to the other side of the river and obtained
help. When police took her to the spot where defendant had shot her, part of a T-
shirt was still tied to the tree. She covered her face and began to cry.
A.L. positively identified defendant and his truck. She recalled that a
crocheted horse was hanging from the truck’s mirror and the truck’s dashboard
had red, blue, and yellow knobs on it. She also noticed defendant had a heart-
shaped tattoo on his arm that read “Jack.” Based on A.L.’s evidence, police
arrested defendant and searched his house. They found a maroon shirt similar to
the one described by A.L., as well as a nickel-plated revolver. His arm bore a
tattoo just as A.L. had described. A search of his truck revealed a crocheted horse,
colored knobs on the dashboard, a roll of black electrician’s tape, and a torn T-
shirt, all corroborating A.L.’s story. Bloodstains inside the truck were consistent
with A.L.’s blood and inconsistent with defendant’s blood. Police also found
A.L.’s fingerprints inside the truck.
5. Testimony of Gary Marolla
Gary Marolla encountered defendant when both were in jail in Mendocino
County. Defendant told him about his crimes against A.L. and the crimes against
Walsh. According to Marolla, defendant said he was driving his big rig truck on
his way to work when he picked up a blonde girl in Willits. He drove north with
her, raped her twice, and then killed her in Rio Dell. Defendant said he attempted
to strangle the girl with his arm but she voided her bladder, which angered him.
He then tied a rope around her neck and strangled her. Once she was dead, he
dumped her lifeless body off a bridge in Rio Dell around 4:00 or 4:30 a.m. He
tried to drop her into the water beneath the bridge, but she landed on the ground
next to the river. Defendant said he then continued on his way to work.
According to Marolla, defendant said he killed the girl from Willits before he
committed his crimes against A.L. Although he strangled the first girl, he told
Marolla that he decided to shoot the second one to avoid the possibility that she
too would urinate on him.
Marolla admitted he had prior felony convictions for escape and robbery in
1965 and for the same crimes in Nevada in 1974. He admitted he had gone to a
house in the Leggett area (Mendocino County) in December 1984 to buy some
marijuana and that he had been armed with a machine gun with a silencer, had
other firearms in his car, and had left the male residents of the house tied up. He
was allowed to plead guilty to possession of a machine gun and a silencer in
exchange for dismissal of the other charges. He also admitted that in exchange for
his testimony against defendant, he had been sentenced for these crimes to
probation with credit for time served (111 days) and that he had been released
immediately after testifying at defendant’s preliminary examination. He declined
to identify the person who had sold him the machine gun, but opined that he might
reveal the name if he were paid $100,000.
Marolla admitted speaking to law enforcement officers more than once
about various crimes for which he had information, and although he denied
seeking to trade that information for his freedom, he conceded he listened to other
people talk about their crimes with the goal of hearing some useful information.
He would have revealed the name of the person who employed him to buy the
marijuana but asserted that police did not “make it worth my while.” He also tried
to peddle information about a drug laboratory in Santa Cruz and a murder case in
Trinity County, but could not reach an agreement with law enforcement.
When he encountered defendant in jail, Marolla revealed to him his prior
commission of a kidnapping and a rape, as well as his previous involvement in
slave trafficking. Marolla also admitted he smoked marijuana in jail and shared
some with defendant. Defendant eventually confided in him as well, telling
Marolla about his own crimes. Marolla took this information to his attorney, who
eventually negotiated a deal with Mendocino County law enforcement authorities.
During cross-examination, the following exchange occurred:
“[DEFENSE COUNSEL]: Q. But would it be fair to say that there was only
one thing that you were interested in, and that was getting out of jail at that point?
“[WITNESS MAROLLA]: A. Of course, that’s all you’re interested in really
when you’re in jail.
“Q. Would it be fair then to say that was the only thing you were interested
in at that point was getting out of jail?
“A. I wouldn’t say the only thing. I was interested in it. Yes.
“Q. It was primarily important to you?
“A. It was important. Yes.”
Further cross-examination probed possible inconsistencies between
Marolla’s trial testimony and his prior statements to police. For example, Marolla
admitted it was “possible” that when he first spoke to law enforcement about
defendant’s admissions, he (Marolla) did not mention that defendant had said the
girl was from Willits. He was evasive or vague when asked whether the Rio Dell
victim was an older woman or a younger girl, whether a rope had been left wound
around her neck or not, and whether defendant had said he raped her. Marolla
later clarified that he had told police he did not know whether a rope had been left
on the victim and that it was possible he had initially told police the Rio Dell
victim was an older woman.
Marolla’s prior crimes did not represent the end of his criminal activities.
He admitted that while on probation for the machine gun charges he had been
arrested in Shasta County for growing marijuana, but was granted diversion. He
had also been found to be in possession of a sawed-off shotgun in violation of his
probation but was not prosecuted for the crime, and it did not affect his eligibility
to receive diversion.
Marolla denied reading newspaper accounts of the Walsh murder and
admitted he had a bad memory. He testified he took medication for epilepsy that
affected his memory. When asked whether he recalled threatening to kill defense
counsel when counsel upset him by calling him a liar, Marolla denied making the
threat. Marolla explained: “I didn’t threaten you. I said I’d have a perfect alibi
and that you would die. I didn’t threaten you in the least. There’s a difference.”
1. Admission in Evidence of Marolla’s Testimony
Defendant raises a multifarious challenge to the trial court’s decision to
admit Gary Marolla’s testimony. As described, ante, Marolla was not the most
sterling witness, demonstrating an evasive and truculent mien on the stand.
Experience shows that criminals often confide in other criminals and, accordingly,
prosecutors must often take their witnesses as they find them. Through cross-
examination and defense counsel’s closing argument, the jury was made well
aware of Marolla’s substantial criminal history, his efforts to uncover information
from other jail inmates that he could trade for his freedom, and his eventual deal
with prosecutors for a favorable outcome for his own legal troubles. As we
explain, the trial court did not err in denying defendant’s motion to exclude
Defendant first argues that in light of Marolla’s dubious background, his
obvious motive to fabricate evidence for his own benefit, and the inconsistency of
his statements,1 his testimony should have been excluded as inherently unreliable
and insufficient to support the verdict.2 But defendant’s claim does not identify a
legal ground for exclusion of otherwise relevant evidence. Marolla was naturally
subject to impeachment for motive and bias. He could also be cross-examined and
asked to explain inconsistencies between what he told police in a pretrial interview
and his trial testimony. But his testimony was not “so inherently incredible, so
contrary to the teachings of basic human experience, so completely at odds with
ordinary common sense, that no reasonable person would believe it beyond a
reasonable doubt.” (United States v. Chancey (11th Cir. 1983) 715 F.2d 543,
546.) We thus agree with respondent that no rule of evidence authorized the trial
court to exclude Marolla’s testimony merely because his character was
reprehensible and he had a motive to lie. As we have explained: “We are
skeptical of the claim that the testimony of an ordinary witness who claims to have
For example, although Marolla testified that defendant told him he left the
rope on Walsh when he dropped her off the bridge, he told Detective Ron Gourley
from the Mendocino County Sheriff’s Department that he was not sure whether or
not defendant had told him he left the rope on and, later, that defendant could not
remember whether he had done so. Also, although Marolla testified in definite
terms that defendant told him he raped Walsh twice, Gourley contradicted Marolla
on this point, testifying that Marolla had told him he was not sure about the rape.
We need not resolve the claim that Marolla’s evidence was insufficient to
sustain the convictions, for there was other evidence — A.L.’s testimony, forensic
evidence, the trucking log sheets — which together with Marolla’s evidence
proved the case against defendant. We address defendant’s claims challenging
this other evidence, post.
heard the confession or damaging admission of a criminal defendant may be
excluded from evidence on the ground that it is inherently improbable. Generally,
‘doubts about the credibility of [an] in-court witness should be left for the jury’s
resolution.’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 735.) “Except in . . .
rare instances of demonstrable falsity, doubts about the credibility of the in-court
witness should be left for the jury’s resolution.” (People v. Cudjo (1993) 6 Cal.4th
Defendant recognizes this general rule, but argues “[t]he question of
Marolla’s reliability is not simply a determination of credibility for the jury.
Although it is true that the trier of fact is the sole arbiter of the credibility of a
witness, this court must ensure the evidence is reasonable, credible, and of solid
value.” (Italics added.) Defendant confuses two standards. At trial, “it is the
exclusive province of the trial judge or jury to determine the credibility of a
witness and the truth or falsity of the facts on which that determination depends.”
(People v. Jones (1990) 51 Cal.3d 294, 314.) On appeal, an appellate court
deciding whether sufficient evidence supports a verdict must determine whether
the record contains substantial evidence — which we repeatedly have described as
evidence that is reasonable, credible, and of solid value — from which a
reasonable jury could find the accused guilty beyond a reasonable doubt. (See,
e.g., People v. Halvorsen (2007) 42 Cal.4th 379, 419.) “In evaluating the
sufficiency of evidence, ‘the relevant question on appeal is not whether we are
convinced beyond a reasonable doubt’ [citation], but ‘whether “ ‘any rational trier
of fact’ ” could have been so persuaded.’ ” (People v. Hernandez (2003) 30
Cal.4th 835, 861.) Because a rational trier of fact could have found Marolla
credible, we reject the claim that the trial court should have excluded his testimony
as inherently incredible.
Second, defendant argues testimony from jailhouse informants is of
“questionable reliability,” observing the Legislature has explicitly recognized such
unreliability by enacting section 1127a.3 Thus, consideration of the fact Marolla
was a jailhouse informant, “in combination with other factors, renders his
testimony unreliable.” But section 1127a, which requires a special jury instruction
directing juries to give “close scrutiny” to the testimony of informants, does not
require exclusion of such evidence. Moreover, as defendant concedes, section
Section 1127a, enacted in 1989, provides: “(a) As used in this section, an
‘in-custody informant’ means a person, other than a codefendant, percipient
witness, accomplice, or coconspirator whose testimony is based upon statements
made by the defendant while both the defendant and the informant are held within
a correctional institution.
“(b) In any criminal trial or proceeding in which an in-custody informant
testifies as a witness, upon the request of a party, the court shall instruct the jury as
“ ‘The testimony of an in-custody informant should be viewed with caution
and close scrutiny. In evaluating such testimony, you should consider the extent
to which it may have been influenced by the receipt of, or expectation of, any
benefits from the party calling that witness. This does not mean that you may
arbitrarily disregard such testimony, but you should give it the weight to which
you find it to be entitled in the light of all the evidence in the case.’
“(c) When the prosecution calls an in-custody informant as a witness in
any criminal trial, contemporaneous with the calling of that witness, the
prosecution shall file with the court a written statement setting out any and all
consideration promised to, or received by, the in-custody informant.
“The statement filed with the court shall not expand or limit the defendant’s
right to discover information that is otherwise provided by law. The statement
shall be provided to the defendant or the defendant’s attorney prior to trial and the
information contained in the statement shall be subject to rules of evidence.
“(d) For purposes of subdivision (c), ‘consideration’ means any plea
bargain, bail consideration, reduction or modification of sentence, or any other
leniency, benefit, immunity, financial assistance, reward, or amelioration of
current or future conditions of incarceration in return for, or in connection with,
the informant’s testimony in the criminal proceeding in which the prosecutor
intends to call him or her as a witness.”
1127a was enacted after his trial, and “we consistently have rejected the
contention, made in connection with capital appeals, that informant testimony is
inherently unreliable.” (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) Finally,
as we explain in more detail in part I.B.6., post, the jury was instructed that in
determining the credibility of witnesses, to consider their prior felony convictions,
the existence of any bias, interest, or motive to lie, and their inconsistent
statements, if any. The jury was thus well-equipped to evaluate Marolla’s
Third, defendant contends Marolla’s unreliability as a witness was
persuasively demonstrated after trial when Marolla called defense counsel and
claimed he had lied in defendant’s trial. As we explain, this new evidence
regarding Marolla’s trustworthiness was speculative, fully aired, and rejected by
the trial court. Accordingly, we conclude there was no substantial evidence that
The facts are these: Following the penalty phase verdict, counsel moved
for a new trial. Before the trial court could act on the new trial motion, counsel
filed a declaration in support of a continuance, explaining that he had received a
telephone call from Marolla in March 1990. Marolla told him “he had lied in his
testimony [in defendant’s case]. He said that [defendant] did not tell him anything
about the Mendocino case [i.e., the A.L. case], but that such information was
provided to him by law enforcement. [¶] He said that he was now dying and had
to get this off his chest. He said he felt responsible for having ‘put him there’ (i.e.,
potentially sending Defendant to Death Row) based on lies. He said that
Defendant did tell him about the Humboldt case [i.e., concerning victim Walsh],
but not about the Mendocino case.”
The court held a hearing on this new information. Detective Gourley
testified that Marolla also called him in March 1990. Marolla had run afoul of the
law in Oregon, and the authorities there sought a urine test. Marolla was afraid
such a test would reveal his marijuana use, and he asked Detective Gourley to set
up a meeting with the trial judge in Oregon. (Consistent with his past modus
operandi, Marolla sought a deal with Oregon authorities in which he would reveal
information he allegedly knew about a drug lab in the Bay Area in exchange for a
reduced charge.) When Detective Gourley was unable to obtain such special
treatment from Oregon authorities, Marolla told him “that if he didn’t get the
meeting with the judge that he wanted, he was going to send a letter that he had
had prepared by an attorney . . . stating that he had lied at [defendant’s] trial.”
According to Gourley, Marolla was very upset and Gourley hung up on him.
Marolla called back five minutes later, and “[h]e was calmed down. He
apologized. He said that he would never do anything like that.” Detective
Gourley testified he did not provide Marolla with any information about
defendant’s case. The other officers who also interviewed Marolla in defendant’s
case similarly denied providing him information.
Marolla was called to the stand but claimed his right to silence under the
Fifth Amendment to the United States Constitution. But when he was asked
(referring to defendant’s trial), “did you in fact give testimony which was untrue,”
he replied: “No. I claim the [Fifth].” (Italics added.) Marolla refused to answer
any additional questions, but the trial court denied defendant’s motion to exclude
this one negative answer. No evidence was presented suggesting Marolla was
The trial court denied the new trial motion, explaining: “There is no
contention that defendant did not recite to Marolla concerning [Walsh’s case] as
Marolla testified at trial. As to the details of [A.L.’s case, she] testified and
identified defendant and graphically detailed those events. [¶] I am unable to
determine Marolla’s motivations in the March 1990 contacts other than to assume
he was attempting to better his position. He has denied untruthfulness in this
Defendant contends that this evidence strongly suggests Marolla lied at his
trial. We disagree. Instead, it appears Marolla was merely threatening to recant
his testimony so as to obtain favorable treatment in Oregon. Shortly thereafter,
Marolla himself reassured Gourley that he would “never” recant his testimony in
defendant’s case. The trial court so held, and its credibility determinations in this
matter are entitled to deference on appeal.4
Despite serious questions surrounding Marolla’s credibility, his account of
defendant’s admissions to him included many details that interlocked with facts
about the crimes against Walsh and A.L. that were known from other sources. Not
only did Marolla know the basic facts of the crimes against Walsh, such as where
she was from, where her body was found, and that she had been strangled and
thrown from a bridge in Rio Dell, he also knew more subtle facts, such as that the
murder occurred around 4:00 a.m., that defendant continued driving northward to
work after the killing, and that the victim had voided her bladder when strangled.
While it is of course within the realm of possibility that Marolla learned these facts
from a source other than defendant, the jury no doubt considered that possibility,
as defense counsel explicitly raised the idea that Marolla had obtained his
information about the Walsh rape and murder by reading the newspaper. Under
the circumstances, we reject defendant’s contentions that Marolla’s testimony was
To the extent defendant also contends the trial court erred by denying his
new trial motion, we reject that claim as well, there being no apparent manifest
and unmistakable abuse of discretion. (People v. Musselwhite (1998) 17 Cal.4th
so inherently incredible or demonstrably false, or that informant testimony in
general is so unreliable, that the trial court abused its discretion in admitting it.
Taking a slightly different tack, defendant next argues the trial court should
have excluded Marolla’s testimony because counsel was unable to effectively
cross-examine him. The basis of this claim requires some background. When
defendant was in pretrial custody for his crimes against A.L., he met Marolla and
made his first set of damaging admissions. Marolla thereafter contacted law
enforcement through his attorney and on February 23, 1985, spoke to Detective
Gourley about defendant’s admissions. At that meeting, it was decided Marolla
should wear a secret recording device (a “wire”) in the hope that defendant would
incriminate himself on tape. Marolla was instructed not to ask any questions but
merely serve as a listening post. Later that same day, police monitored and
recorded defendant’s statements to Marolla. On March 1, 1985, defendant agreed
to give Marolla a written statement of his involvement in the crimes against Walsh
and A.L., ostensibly as collateral for his promise to pay for the contract killing of
A.L. to prevent her from testifying against him.5
Defendant moved to exclude his tape-recorded February 23d statements as
well as his March 1st written statement, citing Fifth and Sixth Amendment
grounds. The trial court initially denied the motion but later reconsidered and
excluded the statements. Still admissible, however, were Marolla’s recollection of
a prior conversation he had had with defendant about the A.L. and Walsh crimes
and his statements to Detective Gourley on February 23. Given this state of
affairs, it became defense counsel’s strategy to undermine Marolla’s credibility by
Evidence of this plan to kill A.L., and defendant’s guilty plea to soliciting
Marolla to murder her, were excluded from the trial.
highlighting the inconsistencies between his prior statements to Detective Gourley
(which were rather shorn of detail) and his trial testimony (which was more
extensive). The parties, of course, could not, before the jury, refer to the recorded
or written statements that had been excluded. Marolla was explicitly instructed
not to mention the excluded information.6
Marolla nevertheless proved a clever and dexterous witness. After defense
counsel’s initial efforts at cross-examination produced some vague and
nonresponsive answers, defense counsel approached the bench and objected: “I’ll
move for a mistrial now and I think perhaps my request would be that if the Court
denies that to take a break and have Mr. Marolla admonished as to what his
responsibilities are at this time. Because I’m cross-examining [him and] . . . he’s
answering in nonresponsive ways and is putting out information he knows is not
admissible. [¶] I would request, for the protection of the record, I make the motion
for mistrial now and that he be admonished because I have to be able to cross-
examine him about how many conversations he had with the police without
bringing up whether or not he had other conversations with . . . Mr. Hovarter.
[¶] He’s just dying to let the cat out of the bag. And it’s a problem.” The court
denied the mistrial motion.
Defendant contends he could not effectively cross-examine Marolla
because Marolla “repeatedly referred to more than one conversation and refused to
Thus, the prosecutor stated: “I have spoken with [Marolla] this morning,
and in accordance with the Court’s prior directive, have advised him that he is not
to mention anything about [the charges against defendant for soliciting A.L.’s
murder]. He is not to discuss or mention the fact that he was wired. He is not to
discuss or mention any statement or information he received from Mr. Hovarter
after he was wired, whether it be verbal or written. . . . He is to refer to the
conversation which he has or had with Mr. Hovarter about the Walsh case as ‘the
conversation.’ ” The trial court also admonished Marolla.
confine his answers to the pre-wiring statements despite counsel’s best efforts.”
While Marolla was certainly a difficult witness, we disagree defense counsel was
unable to conduct an effective cross-examination. Immediately following the
court’s denial of the mistrial motion, defense counsel asked Marolla a series of
direct questions, which elicited from him that he told Detective Gourley he did not
know whether a rope was left on Walsh’s body or whether she had been raped, and
that it was “possible” he told Gourley that defendant characterized Walsh as an
older woman. This differed from his testimony on direct examination when he
testified defendant had told him he left the rope on the body, that he twice raped
Walsh, and that defendant inconsistently referred to Walsh, once saying she was
younger than A.L., another time saying she was older. Counsel also had Marolla
frankly admit he traded the information about defendant for his own freedom.
Under the circumstances, we cannot agree that defense counsel was unable to
effectively cross-examine Marolla.
Finally, defendant argues that permitting him to be convicted of capital
murder based on the unreliable testimony of a witness like Gary Marolla violates
his Eighth Amendment right to heightened standards of reliability in capital cases.
(See In re Sakarias (2005) 35 Cal.4th 140, 160; People v. Yeoman (2003) 31
Cal.4th 93, 141.) But defendant was not convicted solely on Marolla’s testimony.
Marolla’s evidence, though perhaps flawed by his credibility problems, was
bolstered by A.L.’s evidence, the forensic evidence, and Louisiana Pacific’s log
sheets. Accordingly, the reliability of the evidence supporting defendant’s
conviction was sufficient to satisfy the Eighth Amendment to the United States
2. Defendant’s Crimes Against A.L.
Defendant moved before trial to exclude evidence of his convictions for
forcibly raping, kidnapping, and attempting to murder A.L., and his plea to
soliciting her murder. In support, he claimed this evidence was more prejudicial
than probative, citing Evidence Code section 352; was unduly prejudicial and not
otherwise admissible for impeachment, citing People v. Castro (1985) 38 Cal.3d
301; and was not admissible under Evidence Code section 1101 because the
crimes against A.L. were not sufficiently similar to those against Walsh. The trial
court granted in part and denied in part defendant’s motion, ruling (1) the
convictions for rape, kidnapping, and attempted murder were admissible on the
question of identity; and (2) the conviction for soliciting A.L.’s murder was not
admissible on any theory.
A.L. subsequently testified against defendant. Following the close of the
prosecution’s evidence, defendant moved for a new trial (§ 1181), citing the
allegedly erroneous and prejudicial admission of A.L.’s testimony, but the trial
court denied the motion. Defendant now renews his challenge to the admission of
evidence of his crimes against A.L.
As a historical matter, evidence tending to reveal a person’s propensity or
inclination to commit a crime was deemed inadmissible not because it was
irrelevant but because it was considered too prejudicial. Noting Chief Justice
Benjamin Cardozo’s comment, however, that the effect of this rule is that “[in] a
very real sense a defendant starts his life afresh when he stands before a jury, a
prisoner at the bar” (People v. Zackowitz (1930) 254 N.Y. 192, 197), our former
colleague Justice Otto Kaus once remarked that “[r]easonable persons may fret
over the wisdom of permitting an incorrigible scoundrel to ‘start his life afresh’
when charged with the umpteenth repetition of some particular offense” (People v.
Wills-Watkins (1979) 99 Cal.App.3d 451, 457 (conc. opn. of Kaus, P. J.), fn.
omitted). In any event, the rules governing this point of law are now well settled.7
“ ‘Evidence Code section 1101, subdivision (b) provides in pertinent part that
evidence of other crimes is admissible “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident . . .) other than [the defendant’s] disposition to commit such an
act.” “ ‘Evidence of the defendant’s commission of a crime other than one for
which the defendant is then being tried is not admissible to show bad character or
predisposition to criminality but it may be admitted to prove some material fact at
issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of
other crimes may be highly inflammatory, its admissibility should be scrutinized
with great care. [Citation.]’ [Citation.] In cases in which [a party] seeks to prove
the defendant’s identity as the perpetrator of the charged offense by evidence he
had committed uncharged offenses, admissibility ‘depends upon proof that the
charged and uncharged offenses share distinctive common marks sufficient to raise
an inference of identity.’ ” [Citation.] “A somewhat lesser degree of similarity is
required to show a common plan or scheme and still less similarity is required to
show intent. (People v. Ewoldt [(1994)] 7 Cal.4th [380,] 402-403.) On appeal, we
review a trial court’s ruling under Evidence Code section 1101 for abuse of
discretion.” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 500, italics added.)
Proper resolution of the issue turns on the relative distinctiveness of the
common features between the two sets of crimes. To establish the identity of the
perpetrator of the crimes against Walsh, the A.L. crimes and the Walsh crimes
“ ‘must share common features that are sufficiently distinctive so as to support the
Defendant’s trial in 1987 occurred well before the enactment of Evidence
Code section 1108, which loosened the restrictions on the admissibility of other
crimes evidence in cases involving sex crimes.
inference that the same person committed both acts. [Citation.] “The pattern and
characteristics of the crimes must be so unusual and distinctive as to be like a
signature.” ’ (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) ‘The highly unusual
and distinctive nature of both the charged and [prior] offenses virtually eliminates
the possibility that anyone other than the defendant committed the charged
offense.’ (People v. Balcom (1994) 7 Cal.4th 414, 425.)” (People v. Gray (2005)
37 Cal.4th 168, 203.)
The prosecution in this case proffered 16 different points of similarity
between the A.L. and Walsh crimes. The trial court did not accept the argument
that all 16 points were of equal import, noting that many of the points of alleged
similarity “are common to the classes of crime charged.” Nevertheless, the court
found many factors relatively unique, thereby suggesting the same person
committed both sets of crimes:
“First, the focus upon the corridor of U.S. Highway 101, the gathering of a
victim encountered by chance and alone upon U.S. Highway 101.
“Second, the transportation of the victim over long distances.
“Third, the use of defendant’s distinctive truck with sleeping
compartment[,] his work place, as the locus of rape and transport.
“Fourth, strangulation (Walsh), intended strangulation ([A.L.]) and a
concerted effort to dispose [of] the body in a stream of running water.
“The remaining suggested marks, perhaps common to similar class[es] of
crime, add to the composite ‘if considered together.’ ”
Although the trial court did not explain this final comment, we assume the
“remaining suggested marks” include that the victims were both young women in
their late teens, were both taken to another county, were both raped, neither was
severely beaten or suffered traumatic injury to her genital area, both were fully
dressed when released, and both were left for dead.
Reviewing the trial court’s decision to admit or exclude the evidence under
Evidence Code section 1101 by applying the abuse of discretion standard, as we
must (People v. Abilez, supra, 41 Cal.4th at p. 500), we conclude the trial court
acted well within its discretion. Most distinctive facts common to both sets of
crimes are that both involved abduction, rape, and murder (or attempted murder);
both involved teenage girls (Walsh was 16 years old, A.L. was 15); both occurred
along Highway 101 under circumstances suggesting the young women were taken
from along the highway; both occurred in roughly the same time frame (Walsh
was raped and killed in August 1984, the crimes against A.L. occurred in
December of the same year); and both victims were moved a substantial distance.8
The perpetrator of both crimes sought to dispose of the victim’s body in a running
body of water: Walsh was dropped off the Scotia/Rio Dell Bridge near the Eel
River; A.L. was rolled into the Russian River.
This is not to say the trial court’s ruling was unassailable. The court relied
on the fact both young women were sexually assaulted in the sleeping
compartment of defendant’s truck, but although the evidence that A.L. was
assaulted there was strong, only speculation suggests that Walsh was raped there.
Moreover, Walsh was strangled but A.L. was shot. Nonetheless, these facts do not
compel the conclusion the trial court abused its discretion, especially when we
consider the “remaining suggested marks,” set out above. Under the abuse of
discretion standard, “a trial court’s ruling will not be disturbed, and reversal of the
judgment is not required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest
Walsh’s body was found 110 miles from her last known location in Willits.
A.L. was transported more than 169 miles, from Fields Landing, near Fortuna, to
the Russian River area.
miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) As in
People v. Medina (1995) 11 Cal.4th 694, “we think that, in the aggregate, the
similarities become more meaningful, leading to the reasonable inference that
defendant was the person who committed all [the] crimes.” (Id. at p. 748, italics
added.) None of the cases on which defendant relies compel a different result, for
they are all distinguishable on their facts. (E.g., People v. Gallego (1990) 52
Cal.3d 115 [prior crimes admissible for intent and motive, not identity]; People v.
Guerrero (1976) 16 Cal.3d 719, 727 [error to admit prior rape in murder case;
evidence later murder victim was raped was inconclusive]; People v. Nottingham
(1985) 172 Cal.App.3d 484 [same]; People v. Alvarez (1975) 44 Cal.App.3d 375
[prior crime substantially different].)
Defendant also argues the trial court erred by denying his motion to exclude
A.L.’s evidence on the ground it was more prejudicial than probative. (Evid.
Code, § 352.) As with the court’s Evidence Code section 1101 ruling, we evaluate
its ruling under Evidence Code section 352 applying the abuse of discretion
standard. (People v. Cox (2003) 30 Cal.4th 916, 955.) On these facts, we cannot
conclude the court abused its discretion. It carefully excluded evidence of
defendant’s rape, kidnapping, and attempt to murder A.L. on the issues of motive
and common plan, correctly deciding that neither issue was truly disputed by the
parties. It also excluded evidence that, when he was in pretrial custody, defendant
solicited Marolla to murder A.L. to eliminate her as a witness — a crime to which
defendant pleaded guilty — finding that such evidence was “not relevant, is
prejudicial and outweighs any probative value.” It also rejected the prosecution’s
proffered theory that the evidence was admissible to elucidate the nature of the
relationship between defendant and Marolla. We cannot say the evidence that
remained — evidence of rape, kidnapping, and attempted murder used to prove
identity — was more prejudicial than probative.
Defendant further argues “there was a high degree of danger” the jury
chose to convict him in order to punish him for his crimes against A.L. This is
rank speculation and is belied by the jury instructions that both prohibited the jury
from considering the issue of penalty or punishment in its deliberations and
informed it that the evidence of defendant’s crimes against A.L., as well as his
convictions for those crimes, was admissible for only the limited purpose of
showing the identity of the person who raped and killed Danna Walsh.9 Although
defendant contends the limiting instructions were “not sufficient to properly guide
the jury’s consideration of the other crime evidence,” he does not persuasively
explain why. “We presume that jurors understand and follow the court’s
instructions” (People v. Gray, supra, 37 Cal.4th at p. 231) and thus reject the
claim the court abused its discretion under Evidence Code section 352.
3. Defendant’s Statements to A.L.
Both A.L. and Detective Pintane provided evidence of defendant’s
statements that linked his crimes against A.L. to those of Walsh. A.L. recounted
for the jury statements defendant had made to her that could have suggested he
The jury was instructed with CALJIC No. 2.50, which in pertinent part
states that “[e]vidence has been introduced for the purpose of showing that the
defendant committed crimes other than that for which he is on trial. [¶] Such
evidence, if believed, was not received and may not be considered by you to prove
that he is a person of bad character or that he has a disposition to commit crimes.
[¶] Such evidence was received and may be considered by you only for the limited
purpose of determining if it tends to show a characteristic method, plan or scheme
in the commission of criminal acts similar to the method, plan or scheme used in
the commission of the offense in this case which will further tend to show the
identity of the person who committed the crime, if any, of which the defendant is
accused.” We previously have found this instruction correctly states the law and
have rejected the argument that it is “confusing and contradictory.” (People v.
Wilson (2005) 36 Cal.4th 309, 328.)
previously kidnapped and raped another young woman. Pintane testified that
when he interviewed A.L. shortly after the crimes against her, A.L. told him that
defendant had told her this was not the first time he had committed such crimes.
Although defendant challenges the admission of this evidence on several grounds,
we find no error.
Before trial, it appears the parties assumed A.L. would testify that
defendant had said both that he knew what he was doing and that he had
committed a similar crime in the past. Defendant moved before trial to exclude all
evidence of his crimes against A.L. under Evidence Code sections 1101 (discussed
in pt. I.B.2., ante) and 352, as well as on other grounds not relevant here. In
opposing the motion, the People in their brief specifically noted that when
Detective Pintane interviewed A.L., she told him that defendant had told her it
“wasn’t the first time he had done this.” Notwithstanding that defendant did not
make a hearsay argument, the trial court in denying the pretrial motion concluded
in part that evidence of defendant’s statements was admissible “as an admission by
the defendant,” an apparent reference to an exception to the hearsay rule (see Evid.
Code, § 1220). The trial court’s ruling made no mention of any testimony
Detective Pintane might give.
At trial, A.L. described for the jury her recollections of the ordeal of being
kidnapped, bound, raped, twice shot in the head, and left for dead floating in the
Russian River. During her testimony, the prosecutor asked her about certain
statements defendant had made:
“Q. Did the defendant ever tell you that he had done this sort of thing
“A. Yes. He told me that he knew what he was doing.”
Defense counsel did not object.
On cross-examination, defense counsel followed up on the point:
“Q. Do you remember him saying anything more than he said that he knew
what he was doing.
“Q. That’s what you testified to; correct?
“Q. Did you know if that had to do with he knew what he was doing in
terms of raping you.
“A. That’s the idea that I got.” (Italics added.)
Later on redirect examination, the prosecutor asked A.L. whether defendant
had actually said that he previously committed a similar crime:
“Q. Did you tell Detective Pintane that the man who had done these things
to you told you that this was not the first time that he had done this and that he
knew what to do?
“A. He said that he knew what he was doing. I remember that. I don’t
remember if he said specifically that he had done it before.” (Italics added.)
The People then called Detective Pintane to the stand. The prosecutor
asked him whether A.L. had told him “that her assailant had told her that this
wasn’t the first time that he had done this and that he knew what to do?” The
court overruled defense counsel’s objection that the question had been asked and
answered. Pintane then affirmed that when he interviewed A.L., she told him “her
assailant said to her that this was not the first time that he had done this and that he
knew what to do.” (Italics added.)
Defendant suggests the admission of A.L.’s testimony recounting his
statements violated the hearsay rule, an objection he made neither pretrial nor at
trial. His failure to object at trial on this ground provides a substantial basis for
concluding that the issue was not preserved for appeal. However, because the trial
court’s pretrial ruling denying the motion to exclude the evidence of his crimes
against A.L. specifically referenced the hearsay rule, defendant may have
reasonably believed advancing a hearsay objection at trial would have been futile.
Under the circumstances, we will assume the issue of whether the hearsay rule
applies to A.L.’s testimony concerning defendant’s statements is properly before
Turning to the merits, we find no error because A.L.’s testimony was
admissible as describing statements by a party, as the trial court ruled. “Evidence
of a statement is not made inadmissible by the hearsay rule when offered against
the declarant in an action to which he is a party.” (Evid. Code, § 1220.) On
appeal, “an appellate court applies the abuse of discretion standard of review to
any ruling by a trial court on the admissibility of evidence, including one that turns
on the hearsay nature of the evidence in question.” (People v. Waidla (2000) 22
Cal.4th 690, 725; People v. Zambrano (2007) 41 Cal.4th 1082, 1144.) Applying
this standard here, we conclude the trial court did not abuse its discretion by
admitting the evidence of defendant’s comment.
Defendant also contends Detective Pintane’s testimony (that A.L. told him
defendant said he had done this before) should have been excluded as hearsay.
Defendant did not raise the issue of Pintane’s evidence in his pretrial motion to
exclude evidence of defendant’s crimes against A.L. At trial, defendant failed to
raise a hearsay objection as well but objected on a different ground (“asked and
answered”). Accordingly, defendant failed to preserve this issue for appeal by
making a timely and specific hearsay objection. (Evid. Code, § 353.)
Were we to assume nevertheless that defendant preserved the hearsay issue
with respect to Detective Pintane’s testimony, we would conclude the court did
not abuse its discretion by admitting the testimony because it fell within the prior
inconsistent statement exception to the hearsay rule. (Evid. Code, § 1235.)
Detective Pintane’s police report clearly indicates A.L. told him she saw defendant
obliterating his shoe prints from the trail to the Russian River, and at that time
defendant told her this “wasn’t the first time he had done this and that he knew
what to do.” When she testified at trial that she did not “remember if he said
specifically that he had done it before,” a question arose whether her proclaimed
lack of memory was a deliberate evasion, which could give rise to an implied
inconsistency (People v. Ervin (2000) 22 Cal.4th 48, 84-85), or a true case of a
failed memory. Of course, dealing with a sexual assault victim’s memory of the
traumatic event can be a delicate matter and one committed to the trial court’s
discretion. But because defendant did not make a timely hearsay objection, the
court was never obliged to consider this point. In any event, Detective Pintane’s
testimony recounting A.L.’s prior statement was sufficiently inconsistent in effect
to qualify as a prior inconsistent statement. (People v. Fierro (1991) 1 Cal.4th
173, 221-222.) “Generally it is true that the testimony of a witness indicating that
he or she does not remember an event is not inconsistent with a prior statement
describing the event. [Citation.] ‘But justice will not be promoted by a ritualistic
invocation of this rule of evidence. Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a witness’ prior statement
[citation], and the same principle governs the case of the forgetful witness.’ ” (Id.
at p. 221.) We thus conclude the evidence was not rendered inadmissible by the
The hearsay rule aside, it appears the main thrust of defendant’s objections
to this evidence, either from A.L., Detective Pintane, or both, is that defendant’s
statements that he knew what he was doing and it was not his first time were too
Because Pintane’s testimony was thus admissible under Evidence Code
section 1235, we need not decide whether it was also admissible as a prior
recollection recorded under Evidence Code section 1237.
speculative and vague to support the inference that he had previously committed a
similar set of crimes. In support, defendant cites People v. Allen (1976) 65
Cal.App.3d 426, 433, which explained that “for . . . a statement to be admissible
against a party as an admission, the statement must assert facts which would have
a tendency in reason either (1) to prove some portion of the proponent’s cause of
action, or (2) to rebut some portion of the party declarant’s defense.” (See People
v. Kraft (2000) 23 Cal.4th 978, 1035 [describing Allen as a case that “involved a
statement, clear on its face, to which the prosecution sought to ascribe a different,
inculpatory meaning not directly inferable therefrom”].) “Speculative inferences
that are derived from a declarant’s words cannot be deemed to be relevant under
the definition of relevant evidence set forth in Evidence Code section 210, which
requires that evidence offered to prove or disprove a disputed fact must have a
‘tendency in reason’ for such purpose.” (Allen, at p. 434.)
Although defendant’s comments were somewhat vague, the trial court was
within its discretion in concluding that they permitted the inference he had
committed a similar crime in the past. Certainly A.L. had a definite impression as
to the meaning of the comment, and she was a percipient witness to the
circumstances of its utterance. The jurors were thus provided with both her
account of the statement having been made and her assessment of its meaning at
the time.11 Under such circumstances, the trial court’s decision to admit the
Defendant also relies on People v. Hannon (1977) 19 Cal.3d 588, 597 for
the proposition that “the determination of whether there is sufficient evidence to
support an inference is a question of law, to be determined by the trial judge, and
not the jury.” Hannon is inapposite; we assume the trial court assessed whether
defendant’s admission could support the inference that he had committed a prior
and similar crime. There is no suggestion the court abdicated its judicial role and
left that assessment to the jury.
evidence was not “arbitrary, capricious, or patently absurd” such that it “resulted
in a manifest miscarriage of justice.” (People v. Guerra, supra, 37 Cal.4th at
Stating the same basic argument in different terms, defendant contends
A.L.’s testimony on this point should have been excluded as irrelevant. (Evid.
Code, § 210.) We disagree. Because defendant’s comment to A.L. that he knew
what he was doing suggested he had raped and killed before, it was relevant and
thus admissible to show his state of mind. (See People v. Gurule (2002) 28
Cal.4th 557, 652 [defendant’s statement that he had “killed before” admissible to
show his state of mind in forming the plan to commit the crimes].) Its weight was
for the jury to determine.
We also reject defendant’s claim that admission of A.L.’s and Detective
Pintane’s testimony violated his constitutional rights to due process, a fair trial,
and a reliable penalty determination under various federal and state constitutional
provisions. The “routine application of state evidentiary law does not implicate
[a] defendant’s constitutional rights.” (People v. Brown (2003) 31 Cal.4th 518,
545.) As defendant provides no elaboration or separate argument for these
constitutional claims, we decline to address further these boilerplate contentions.
(Id. at p. 538, fn. 6.)
4. Louisiana Pacific Log Sheets
Witnesses testified that whenever a truck entered the front entrance of the
Louisiana Pacific pulp mill, a guard at the gate entered the driver’s name and
either the vehicle registration or license plate number of his truck in a log. Over
objection, the prosecution introduced some of these logs (hereafter log sheets).
One log sheet indicated the time defendant arrived at and departed the mill on the
day A.L. was attacked. Other log sheets showed that on the day Walsh was
attacked, defendant arrived at the mill later than usual and thus, inferentially, had
time to commit the offenses against Walsh. The prosecution relied on the log
sheets as circumstantial evidence showing defendant was likely in the general
geographical area when both Walsh (near Willits) and A.L. (near Fortuna) were
abducted and thus had the opportunity to commit the crimes. Defendant raises a
multipronged attack on the admission of the log sheets based on two general
theories. First, he contends the log sheets fail to qualify for admission under the
business records exception to the hearsay rule. Second, he argues the log sheets
were inadmissible under the best evidence rule. As we explain, these arguments
a. Business records exception
Evidence Code section 1271 provides that “[e]vidence of a writing made as
a record of an act, condition, or event is not made inadmissible by the hearsay rule
when offered to prove the act, condition, or event if: [¶] (a) The writing was made
in the regular course of a business; [¶] (b) The writing was made at or near the
time of the act, condition, or event; [¶] (c) The custodian or other qualified witness
testifies to its identity and the mode of its preparation; and [¶] (d) The sources of
information and method and time of preparation were such as to indicate its
Although defendant apparently concedes the evidence satisfied the first
three requirements of the business records exception, he contends the log sheets
did not qualify for admission under the fourth requirement: trustworthiness. The
prosecution, as the party offering the evidence, bore the burden of establishing the
foundational requirement of trustworthiness. (People v. Beeler (1995) 9 Cal.4th
953, 978.) A trial court has broad discretion in determining whether a sufficient
foundation has been laid to qualify evidence as a business record. On appeal, we
will reverse a trial court’s ruling on such a foundational question only if the court
clearly abused its discretion. (Ibid.)12
Defendant argues the log sheets were untrustworthy because they omitted
the names of some truckers who had entered and departed the pulp mill. But that a
business record contains some omissions does not necessarily render unreliable the
information the record includes. (See People v. Diaz (1992) 3 Cal.4th 495, 535
The prosecution presented testimony from Louisiana Pacific employees
familiar with the pulp’s mill’s standard operating procedures for the front gate.
Their testimony established that, despite some errors, it was very unlikely a
driver’s name and truck identifying information would be logged in had the driver
not in fact appeared at the front gate. Significantly, defendant presented no
evidence showing the information recorded in the relevant log sheets was
inaccurate, only that the log sheets were incomplete.
Defendant next argues the log sheets were untrustworthy because of the
pulp mill’s policy of having trucks that entered through the back gate proceed to
the front gate to be logged in. Jack Davis, shipping foreman for the pulp mill,
testified the pulp mill had only one legitimate entry — the front gate — and it was
The trial court did not make an express ruling as to trustworthiness.
Instead, it ruled that evidence presented by Harlan Smith, an employee of
Louisiana Pacific, met the requirements of Evidence Code section 1271 and that
the log sheets “will be admissible.” This was sufficient: A ruling admitting a
writing pursuant to the business records hearsay exception is considered an
implied finding by the trial court that the conditions of the trustworthiness
requirement have been met. (Evid. Code, § 402, subd. (c) [“A ruling on the
admissibility of evidence implies whatever finding of fact is prerequisite thereto”];
Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762,
784 [court need not make express finding as to trustworthiness under business
at this gate the guard logged in the names of the drivers and the trucks’ identifying
information. But the mill’s policy of requiring trucks entering through the back
gate to go to the front gate to log in does not make the front gate log sheets
inaccurate as to the time a truck entered the front gate. Significantly, defendant
presented no evidence he tried to enter the mill through the back on the dates in
Defendant next argues the log sheets were untrustworthy because the names
of truck drivers and their times of entry into and departure from the mill were not
placed uniformly in the same columns or locations on the log sheets. But there
was no showing that the log sheet entries’ relative lack of orderliness rendered the
information contained therein unreliable. (Cf. Arques v. National Superior Co.
(1945) 67 Cal.App.2d 763, 777 [stating, under a predecessor statute to the business
records exception: “This is not the best method of bookkeeping but no item has
been called to our attention that suggests a definite inaccuracy”].)
Finally, defendant argues the log sheets were untrustworthy because the
notation of defendant’s entry on December 11, 1984 — the date of the A.L.
offenses — was made by someone other than Harlan Smith, the gatekeeper on
duty. We reject the argument. Harlan Smith testified he was on the phone at the
time defendant entered the mill on that date and, recognizing defendant (with
whom the company had a long-standing work relationship) and his truck, he
directed his supervisor, Joe Watson, to make the log entry. Many business records
are prepared through the activities of several persons, and one employee may
report facts he or she knows to a second employee, who then records those facts in
the regular course of business. (1 Jefferson, Cal. Evidence Benchbook
(Cont.Ed.Bar 3d ed. 1997) § 4.9, p. 121.) So long as “the person who originally
feeds the information into the process [has] firsthand knowledge,” the evidence
can still qualify as a business record. (2 McCormick on Evidence (6th ed. 2006)
p. 314.) In this case, Smith’s testimony explained the handwriting discrepancy
and verified that the notation was made at his direction by another employee
during the regular course of business.
In sum, the trial court did not abuse its discretion in finding the prosecution
had satisfied its burden of showing the log sheets were sufficiently trustworthy to
qualify as business records under Evidence Code section 1271, subdivision (d).
b. Best evidence rule
Defendant contends admission of the log sheets violated the best evidence
rule because the sheets were photocopies of the original documents. At the time
of defendant’s trial, the best evidence rule provided that “no evidence other than
the original of a writing is admissible to prove the content of a writing.” (Evid.
Code, former § 1500, as amended by Stats 1977, ch. 708, § 3, p. 2269 and
repealed by Stats. 1998, ch. 100.)13 The purpose of the rule was “ ‘to minimize
the possibilities of misinterpretation of writings by requiring the production of the
original writings themselves, if available.’ ” (People v. Panah (2005) 35 Cal.4th
395, 475.) “[A] photocopy of an original document is admissible under several of
the broad exceptions to the [best evidence] rule: Evidence Code [former] section
1501 provides that a copy is not inadmissible if the writing is lost or destroyed
without fraudulent intent; [former] section 1502 provides a copy is not
inadmissible if the writing could not be procured by the court’s process ‘or other
available means’; and [former] section 1511 provides that ‘[a] duplicate is
admissible to the same extent as an original unless (a) a genuine question is raised
as to the authenticity of the original or (b) in the circumstances it would be unfair
The best evidence rule has been renumbered and retitled, and is now called
the secondary evidence rule. (See now Evid. Code, § 1521.) We consider the rule
as it existed at the time of defendant’s trial.
to admit the duplicate in lieu of the original.’ ” (Osswald v. Anderson (1996) 49
Cal.App.4th 812, 819.) Of course, the proponent of the evidence bears the burden
of showing one of the exceptions to the rule applies. (People v. Woodell (1998) 17
Cal.4th 448, 465.)
Defendant maintains the prosecution failed to carry its burden of proving a
reasonable search had been conducted for the original log sheets or that they were
truly lost. “The best evidence rule mandates that in order to present secondary
evidence of the contents of the original written instrument, evidence of its loss,
destruction, or unavailability must be presented.” (Von Brimer v. Whirlpool
Corporation (N.D.Cal. 1973) 362 F.Supp. 1182, 1187, citing Evid. Code, former
§§ 1500-1501.) Defendant claims the record contains only conclusory statements
the original log sheets were unavailable, and the prosecution presented no
evidence suggesting it had conducted a diligent search for the originals.
We disagree. As we explained in Dart Industries, Inc. v. Commercial
Union Ins. Co. (2002) 28 Cal.4th 1059, addressing the current version of the
secondary evidence rule: “ ‘ “If any suspicion hangs over the instrument, or that it
is designedly withheld, a rigid inquiry should be made into the reasons for its non-
production. But where there is no such suspicion, all that ought to be required is
reasonable diligence to obtain the original—in fact, courts in such cases are
extremely liberal.” ’ [Citation.] Questions whether the search was sufficient in
scope and was conducted in good faith are addressed to the discretion of the trial
court, and will not be disturbed on appeal absent abuse of discretion.” (Id. at
p. 1069, italics added.)
Nothing in this case suggests the original log sheets were intentionally
withheld or destroyed. Frank Wigginton, the director of security for the Western
Division of Louisiana Pacific, testified that he was responsible for maintaining the
front gate records and that he maintained these and other security records for six
months, after which time they were destroyed in the normal course of business.
This case is thus unlike Osswald v. Anderson, supra, 49 Cal.App.4th at page 819,
on which defendant relies, because in that case the proponent of the evidence (a
purported duplicate of a deed) failed to present any evidence the original deed was
actually lost or that he had searched for it in any of the places one would have
thought it could be found. Here, by contrast, the trial court was entitled to rely on
Wigginton’s testimony and conclude the prosecution had satisfied its burden of
showing the log sheets had in fact been destroyed, that their destruction had been
without fraudulent intent in the regular course of business, and therefore that the
duplicates were admissible under Evidence Code former section 1501.
Defendant also argues the trial court erred in admitting the duplicate log
sheets because they contained handwritten sequential numbering and other
markings which, according to some witnesses, did not exist on the original log
sheets. Evidence Code section 1402 provides “the party producing a writing as
genuine which has been altered, or appears to have been altered, after its
execution, in a part material to the question in dispute, must account for the
alteration or appearance thereof.” (Italics added.) Defendant does not claim the
“sequential numbering and other markings” were material to the question in
dispute, i.e., the time of day he entered the pulp mill on August 24, 1984, the day
of Walsh’s murder, and the two days prior, nor does it appear these markings
would have any effect on the reliability or accuracy of that information.
Therefore, Evidence Code section 1402 did not require the prosecution to explain
this alteration. The trial court acted within its discretion in finding the log sheets
had been properly authenticated.
We conclude the trial court, by admitting duplicates of the log sheets from
the Louisiana Pacific pulp mill, did not abuse its discretion under the best evidence
To the extent defendant contends the admission of the Louisiana Pacific log
sheets violates his federal constitutional right to due process of law or to confront
the witnesses against him, we reject that claim as well. The “routine application of
state evidentiary law does not implicate [a] defendant’s constitutional rights.”
(People v. Brown, supra, 31 Cal.4th at p. 545.)
5. Challenges to the Sufficiency of the Evidence
Defendant next contends that none of his three felony convictions is
supported by substantial evidence. The law is settled. “ ‘In reviewing a criminal
conviction challenged as lacking evidentiary support, “ ‘the court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence — that is, evidence which is reasonable,
credible, and of solid value — such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse
(2002) 27 Cal.4th 469, 496.)’ (People v. Combs (2004) 34 Cal.4th 821, 849; see
Jackson v. Virginia (1979) 443 U.S. 307, 319.) ‘An appellate court must accept
logical inferences that the jury might have drawn from the evidence even if the
court would have concluded otherwise. (People v. Rodriguez (1999) 20 Cal.4th 1,
11.)’ (Combs, at p. 849.)” (People v. Halvorsen, supra, 42 Cal.4th at p. 419.)
“Forcible rape is an act of sexual intercourse accomplished with a person
not the spouse of the perpetrator against the person’s will by means of force or
violence.” (People v. Guerra, supra, 37 Cal.4th at p. 1130.) Here, there is no
question regarding force: Walsh was found dead by strangulation, her body
thrown off the Scotia/Rio Dell Bridge, and evidence suggested she had been
bound. Nor is there any question of penetration: semen was found in her vagina.
Finally, there is of course no evidence defendant was married to Walsh. The
remaining questions are whether the penetration was forcible and whether
defendant was the perpetrator.
Defendant emphasizes evidence that Dennis Haun, Walsh’s boyfriend, may
have had sex with her earlier that night, that the PGM/secretor evidence could not
definitively eliminate Haun as the donor of the semen found in her vagina, that
Walsh’s clothing was not ripped or torn, and that her genital region suffered no
traumatic injury. Defendant cites several cases in which this court found evidence
of rape or forcible sex crimes insufficient. (See, e.g., People v. Johnson (1993) 6
Cal.4th 1, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826,
879; People v. Raley (1992) 2 Cal.4th 870; People v. Craig (1957) 49 Cal.2d 313.)
We need not parse the facts of those cases nor compare and contrast their
facts to the facts of this case for, as respondent cogently observes, this is not a case
in which the jury was faced with equivocal evidence of a deceased, partially
dressed female victim bearing the traces of having suffered some physical
brutality. The evidence in this case was much more direct. Thus, during the
prosecutor’s questioning of Gary Marolla, the following occurred:
“[THE PROSECUTOR]: Q. Mr. Marolla, did the defendant tell you whether
or not he had raped the girl he killed and dumped in Rio Dell?
“[WITNESS MAROLLA]: A. Yes. He did.
“Q. What did he tell you about that?
“A. He told me he raped her twice.” (Italics added.)
The jury was not required to accept Marolla’s testimony, and as we
explained ante, reasons existed to question his veracity. But we cannot say the
jury was required to disbelieve him either. “ ‘ “Conflicts and even testimony
which is subject to justifiable suspicion do not justify the reversal of a judgment,
for it is the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends.” ’ ” (People v. Lewis (2001) 26 Cal.4th 334, 361.) Moreover, in
addition to Marolla’s testimony, the jury had before it: (1) the forensic evidence
showing that defendant could not be excluded as the donor of the semen found in
Walsh’s vagina; (2) evidence from the Louisiana Pacific log sheets showing he
had the opportunity to commit the crime; and (3) defendant’s commission of a
similar set of crimes against A.L. a few months later. Viewing the evidence in a
light most favorable to the judgment below (People v. Halvorsen, supra, 42
Cal.4th at p. 419), we find there was substantial evidence from which the jury
could have concluded beyond a reasonable doubt that defendant forcibly raped
Danna Walsh. We thus reject defendant’s claim his rape conviction was supported
by insufficient evidence and also reject his associated claim that his rape
conviction violated his state and federal constitutional rights to due process of law,
a fair trial, and a reliable penalty determination. For the same reasons as explained
above, we reject as well the claims that because they could have been based on a
rape-felony-murder theory, we must reverse (1) the first degree murder verdict,
(2) the rape-murder special-circumstance finding (§ 190.2, former subd.
(a)(17)(iii), now subd. (a)(17)(C)), and (3) the death penalty.
At the time of the crimes, section 207, subdivision (a) provided: “Every
person who forcibly steals, takes, or arrests any person in this state, and carries the
person into another country, state, or county, or into another part of the same
county, is guilty of kidnapping.” (Stats. 1982, ch. 1404, § 1, p. 5358.) Defendant
argues there was insufficient evidence he kidnapped Walsh because there was no
evidence he moved or asported her while she was still alive, and that if she was
alive, there was “absolutely no evidence” the movement was anything other than
voluntary. We disagree.
There is little dispute that Walsh was moved. She attended a party in
Willits around 8:00 p.m. the night of August 23, 1984, along with several other
people. A clerk at a convenience store in Willits believed she saw Walsh between
midnight and 2:00 a.m. the morning of August 24th. Walsh’s body was later
found near the Scotia/Rio Dell Bridge around 1:00 p.m. that afternoon, about 110
miles from Willits.
Defendant suggests he may have raped and killed Walsh in Willits and then
transported her dead body over 100 miles before he threw her off the Scotia/Rio
Dell Bridge. Although this scenario is within the realm of the possible, Detective
Gourley testified that Gary Marolla told him defendant admitted killing a girl “ ‘up
in Rio Dell,’ ” suggesting defendant did not kill Walsh until he arrived in
Scotia/Rio Dell. As before, the jury was not required to believe Marolla, but it
was within its province to do so. Viewing the evidence in a light most favorable
to the judgment, we conclude the jury most likely did believe this evidence.
Having found substantial evidence Walsh was alive when transported to her
final resting place, we also reject defendant’s argument that “absolutely no
evidence” supports the conclusion her movement was involuntary. Defendant
suggests he picked up Walsh as a hitchhiker; that she voluntarily agreed to
accompany him in his truck to Scotia/Rio Dell; and that once there, he raped and
killed her. But the evidence Walsh was raped, bound, beaten, and strangled raises
a reasonable inference that she did not voluntarily accept a ride to Scotia/Rio Dell.
Moreover, Walsh lived in Willits with her mother and sister and went to school
there. The absence of any evidence Walsh had a possible reason to travel over 100
miles away to Scotia/Rio Dell in the middle of the night undercuts defendant’s
theory that she may have gone there voluntarily.
Finally, although defendant argues Walsh may have entered defendant’s
truck willingly, this scenario does not necessarily negate the existence of a
kidnapping. “Even if the victim’s initial cooperation is obtained without force or
the threat of force, kidnap[p]ing occurs if the accused ‘ “subsequently restrains his
victim’s liberty by force and compels the victim to accompany him further.” ’
[Citations.] ‘The force used against the victim “need not be physical. The
movement is forcible where it is accomplished through the giving of orders which
the victim feels compelled to obey because he or she fears harm or injury from the
accused and such apprehension is not unreasonable under the circumstances.” ’ ”
(People v. Alcala (1984) 36 Cal.3d 604, 622, italics added.)14 Thus, even if Walsh
had some reason, unknown to anyone else, for a trip to Scotia/Rio Dell in the wee
hours of the morning and voluntarily accepted a ride from defendant, his
subsequent decision to rape her and maintain his control of her in his truck vitiated
any initial voluntariness, converting the encounter into one in which she was being
transported against her will, that is, a kidnapping.
Viewing the evidence in a light most favorable to the judgment below
(People v. Halvorsen, supra, 42 Cal.4th at p. 419), we conclude that Marolla’s
testimony suggesting Walsh was not killed until arriving at Scotia/Rio Dell,
coupled with the evidence she had been raped, bound, beaten, and strangled and
that she had no reason to travel to Scotia/Rio Dell in the middle of the night,
constitutes substantial evidence from which the jury could have concluded beyond
a reasonable doubt that defendant kidnapped Walsh. We thus reject defendant’s
claim his conviction for kidnapping was supported by insufficient evidence and
also reject the associated claim that his kidnapping conviction violated his state
and federal constitutional rights to due process of law, a fair trial, and a reliable
Alcala was abrogated by statute on another ground, as explained in People
v. Falsetta (1999) 21 Cal.4th 903, 911.
penalty determination. For the same reasons, we reject the claims that because
they could have been based on a kidnapping-felony-murder theory, we must
reverse (1) the first degree murder verdict, (2) the kidnapping-murder special-
circumstance finding (§ 190.2, former subd. (a)(17)(ii), now. subd. (a)(17)(B)),
and (3) the death penalty.
c. First degree murder
The prosecution relied on two different legal theories of first degree
murder: felony murder (rape, kidnapping), and premeditated and deliberate
murder. Thus, the prosecutor argued: “Murder is [in] the first degree if it was
committed during the commission of a crime such as rape, which is called felony
murder, in which case the intent to commit the felony provides the malice[,] or if
the murder is deliberate and premeditated. That is, the killer had the opportunity
to weigh and consider the consequences of his act and made a conscious decision
after that weighing process to kill.” Defendant contends we must reverse his
murder conviction because there was insufficient evidence of premeditation and
deliberation. We reject the contention for two reasons. First, we can discern from
the circumstances that the jury in fact relied on a felony-murder theory to reach its
verdict on the charge of first degree murder. Second, the evidence of
premeditation and deliberation was sufficient.
Completely undermining defendant’s argument is that the jury sustained
both the rape and kidnapping special-circumstance allegations. (§ 190.2, former
subd. (a)(17)(ii) & (iii), now subd. (a)(17)(B) & (C).) From these verdicts, it is
apparent the jury necessarily found — unanimously and beyond a reasonable
doubt — that “[t]he murder was committed while the defendant was engaged in
. . . the commission of . . . or the immediate flight after committing” kidnapping
and rape. (Ibid.) As we explained in parts I.B.5.a. and b., ante, substantial
evidence supports both the rape and kidnapping convictions. Accordingly, we can
deduce from the special circumstance verdicts that the jury relied unanimously on
a legally valid felony-murder theory of first degree murder, rendering any alleged
deficiency in the evidence of premeditation and deliberation superfluous. (People
v. Marshall (1997) 15 Cal.4th 1, 38.)
The evidence in any event was sufficient to support a finding of
premeditation and deliberation. Although defendant engages in a detailed
examination of the three categories of evidence set forth in People v. Anderson
(1968) 70 Cal.2d 15 — planning activity, prior relationship, manner of killing —
we have explained that an “ ‘[u]nreflective reliance on Anderson for a definition of
premeditation is inappropriate. The Anderson analysis was intended as a
framework to assist reviewing courts in assessing whether the evidence supports
an inference that the killing resulted from preexisting reflection and weighing of
considerations. It did not refashion the elements of first degree murder or alter the
substantive law of murder in any way.’ (People v. Thomas (1992) 2 Cal.4th 489,
517.) In other words, the Anderson guidelines are descriptive, not normative.
‘The Anderson factors, while helpful for purposes of review, are not a sine qua
non to finding first degree premeditated murder, nor are they exclusive.’ ”
(People v. Koontz (2002) 27 Cal.4th 1041, 1081.)
In this case, a reasonable jury could have inferred from the circumstances
of his crimes against Walsh, coupled with his later, similar crimes against A.L.,
that in the latter half of 1984 defendant engaged in a deliberate plan of sexually
preying on defenseless young women late at night on the highway. From these
facts, which indicate defendant dumped Walsh’s body off the Scotia/Rio Dell
Bridge, no doubt hoping she would fall into the river and be swept away, “a
rational trier of fact could have determined that defendant’s motive in murdering
[the victim] was to avoid detection for the sexual and other physical abuses he had
committed against her.” (People v. Proctor (1992) 4 Cal.4th 499, 529.) The
motive of eliminating possible witnesses in cases involving abduction and rape is
often inferable from the circumstances of such crimes. (See People v. Alcala,
supra, 36 Cal.3d at p. 627.) Defendant’s choice, moreover, of committing his
crimes in isolated or secluded settings further suggests a premeditated plan
designed to avoid detection. (People v. Pensinger (1991) 52 Cal.3d 1210, 1237,
and cases cited.) Finally, and most tellingly, the evidence shows that Walsh was
strangled with a rope and that her death from asphyxiation would have taken
between five and eight minutes. “Ligature strangulation is in its nature a
deliberate act.” (People v. Bonillas (1989) 48 Cal.3d 757, 792.) This prolonged
manner of taking a person’s life, which requires an offender to apply constant
force to the neck of the victim, affords ample time for the offender to consider the
nature of his deadly act. “A rational finder of fact could infer that [this manner of
killing] demonstrated a deliberate plan to kill her.” (People v. Davis (1995) 10
Cal.4th 463, 510.)
In sum, because the jury necessarily relied on a valid felony-murder theory,
we need not decide whether the evidence of premeditation and deliberation was
sufficient, but in any event the evidence was clearly sufficient.
6. Challenge to the Jury Instructions: Failure to Give Jury Instruction
to View Marolla’s Testimony with Caution
Gary Marolla’s testimony obviously was an important piece of the
prosecution’s case. Although circumstantial evidence (the Louisiana Pacific log
sheets, the forensic blood evidence, and, especially, A.L.’s description of
defendant’s crimes against her) supported the prosecution’s theory that defendant
raped and killed Danna Walsh, Marolla’s evidence directly linked defendant to
Walsh and to the Scotia/Rio Dell Bridge where her body was found. Accordingly,
defendant proposed the trial court give the jury this special instruction: “The
testimony of an informer who provides evidence against the defendant for
immunity from punishment, or for personal advantage or vindication, must be
examined and weighed by the jury with greater care than the testimony of an
ordinary witness. The jury must determine whether the informer’s testimony has
been affected by interest or by prejudice against defendant.”
In support of the instruction, defense counsel argued: “I would like to draw
attention to the specific matters which distinguish [Marolla’s] testimony from the
testimony of other people.” Counsel admitted, however, that “this [issue] is
covered to some degree [in CALJIC No.] 2.20, but not quite with the same
pinpoint emphasis.”15 The trial court denied defense counsel’s request for the
special instruction without explanation.
At the time of trial, CALJIC No. 2.20 (1980 rev.) (4th ed. 1979) provided:
“Every person who testifies under oath . . . is a witness. You are the sole judges of
the believability of a witness and the weight to be given the testimony of each
“In determining the believability of a witness you may consider anything
that has a tendency in reason to prove or disprove the truthfulness of the testimony
of the witness, including but not limited to any of the following:
“The extent of the opportunity or ability of the witness to see or hear or
otherwise become aware of any matter about which the witness has testified;
“The ability of the witness to remember or to communicate any matter
about which the witness has testified;
“The character and quality of that testimony;
“The demeanor and manner of the witness while testifying;
“The existence or nonexistence of a bias, interest, or other motive;
“Evidence of the existence or nonexistence of any fact testified to by the
“The attitude of the witness toward the action in which testimony has been
given by the witness or toward the giving of testimony;
“[A statement previously made by the witness that is [consistent] [or]
[inconsistent] with the testimony of the witness;] [¶] . . . [¶]
“[An admission by the witness of untruthfulness;]
“[The witness’ prior convictions of a felony.]”
A trial court must instruct the jury, even without a request, on all general
principles of law that are “ ‘closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case.’ [Citation.] In addition, ‘a
defendant has a right to an instruction that pinpoints the theory of the defense.’ ”
(People v. Roldan (2005) 35 Cal.4th 646, 715.) The court may, however,
“properly refuse an instruction offered by the defendant if it incorrectly states the
law, is argumentative, duplicative, or potentially confusing [citation], or if it is not
supported by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30.)
In this case, although the court did not state a reason, we conclude the court
did not err because the requested instruction was duplicative. The court did
instruct the jury with CALJIC No. 2.20 (set out in fn. 15, ante). The court also
gave CALJIC Nos. 2.14 (prior inconsistent statement), 2.21 (witness willfully
false), and 2.23 (prior felony conviction). Under these circumstances, it was not
necessary to further instruct on Marolla’s relative credibility. People v. Harrison
(2005) 35 Cal.4th 208 illustrates the point. There, as here, the defendant requested
a pinpoint instruction informing the jury that it should view certain witnesses’
testimony with “ ‘greater care’ ” due to the leniency they may have expected to
receive for their testimony. (Id. at p. 253.) We affirmed the trial court’s refusal to
give the special instruction, explaining that “the jury received instructions on the
credibility of witnesses in general (CALJIC No. 2.20) and on the credibility of a
witness who has been convicted of a felony (CALJIC No. 2.23). Together, these
instructions adequately informed the jury that the ‘existence or nonexistence of a
bias, interest, or other motive’ and a witness’s prior conviction of a felony were
factors it could consider in determining the believability of a witness. Defendant
cites no authority to support his argument that these instructions were inadequate,
and we find none. Accordingly, the court did not err in refusing to give
defendant’s special instruction [and his] right to a fair trial was not violated.” (Id.
at pp. 253-254.)
Defendant contends the refusal to give his instruction violated his federal
constitutional rights to due process of law, a fair trial, and equal protection of the
laws (U.S. Const., 5th, 6th & 14th Amends.) because the state has no interest,
compelling or otherwise, to have a jury consider the prosecution’s theories of the
case “while denying that right . . . to people defending themselves against
accusation of crime.” But because the pattern instructions given to the jury
adequately covered the same ground as defendant’s special instruction, we cannot
conclude defendant was denied the right to have the jury consider his defense
theory. Although he argues his instruction more pointedly directed the jury’s
attention to the “personal advantage or vindication” Marolla may have expected to
achieve by his testimony, this issue was adequately conveyed to the jury by
CALJIC No. 2.20’s admonishment that the jury should consider “the existence or
nonexistence of a bias, interest, or other motive” of a witness.
Certainly the parties did not ignore Marolla’s credibility, either in
questioning him or in closing argument. The prosecutor elicited from Marolla his
extensive criminal history, and defense counsel questioned him closely about his
attempts to forge a deal with prosecutors to reduce his sentence on various
criminal charges. In closing argument, defense counsel called Marolla “a rapist, a
kidnap[p]er, a slave trader, a robber, [and a] drug trafficker.” He emphasized
Marolla’s prior felony convictions and the deal Marolla had with Mendocino
County law enforcement authorities for a lesser sentence. Counsel stressed the
fact Marolla expected to receive, in exchange for his testimony against defendant,
some benefit from the prosecutor on his own case involving possession of a
machine gun, and observed that Marolla’s chosen mode of operation was to “find
out about some case and figure out what it is that he can tell somebody so that he
can get out [of jail] and who is it he can place the blame on and there’s not much a
person could do about it.” Under the circumstances, the jury could not have failed
to appreciate that Marolla’s credibility was a central issue in the case and that it
should take great care when evaluating it. The court thus did not err in refusing
defendant’s special instruction; even had the court erred, any error would have
been harmless under any standard.
Finally, although defendant notes section 1127a (see fn. 3, ante) requires an
instruction similar to the one he requested, he acknowledges section 1127a was
enacted after he was tried and thus could not have applied to his trial. (People v.
Williams (1997) 16 Cal.4th 153, 228.)
II. PENALTY PHASE
The prosecution presented no aggravating evidence at the penalty phase,
instead relying on the guilt phase evidence of defendant’s crimes.
Defendant presented evidence from his neighbor, Evelyn Rasmussen, and
her sons, Darrell Porter and Timothy Porter, who testified to his good character
and amiable personality. Joseph Estrada, owner of a wrecking yard in Richmond,
testified that defendant was hard working and reliable, and a good mechanic.
Estrada’s daughter testified defendant taught her to drive and was like a big
brother to her. Kenneth Reeves knew defendant through the trucking business and
testified he was a good worker with a good attitude.
Defendant’s sister, Maudie Bays, testified that when she was a child, she
and defendant were very close. He was always protective of her and was taught
never to strike a woman. A corrections officer testified that defendant was a
cooperative, trouble-free inmate.
Paul Berg, who testified at the initial penalty phase trial and the penalty
retrial, was a psychologist who had examined defendant at his request. Dr. Berg
found defendant was sane, did not suffer from psychosis, and was of average
intelligence with no evidence of brain damage. But defendant suffered from
emotional difficulties; he exhibited symptoms of a near schizoid personality,
suffered from an avoidant personality disorder, and was socially maladapted.
According to Dr. Berg, defendant’s emotional development was arrested as a child
due to his abandonment by his biological mother and abuse and neglect from his
father and three stepmothers. As a result, he never felt that he fit in anywhere, and
although he tried to make “all the right moves,” such as getting married, he did it
only half-heartedly. He self-identified as a hard worker and drew much of his
identity from being a truck driver. Although he appeared to have a stable
relationship with his wife, he bottled up a lot of rage and was unable to express it.
1. Jury Waiver for the Penalty Phase Retrial
The jury was unable to reach a unanimous decision on the question of the
appropriate penalty. Accordingly, the trial court declared a mistrial and dismissed
the jury.16 Thereafter, defendant raised the possibility that he would waive his
right to a jury for the penalty phase retrial. The parties and the court discussed the
matter, for a question was raised whether section 190.4 permits a capital defendant
to waive his right to a jury for a penalty phase retrial. Defense counsel took the
position that defendant could validly do so, arguing that “I find it hard to believe
that it was the intention of either the voters or the authors of [the death penalty]
initiative to prohibit a defendant from waiving his right to a jury in the
Defendant does not challenge the court’s decision to declare a mistrial.
circumstances that Mr. Hovarter is now in. [¶] And I would find it difficult to
believe that a reviewing Court wouldn’t find it erroneous to deny him that right,
bearing in mind that both the People and, of course, the defendant for perhaps
different reasons have agreed that it is in the best interests of the People’s client
and our client to do so.” Counsel further asserted that the failure of section 190.4,
subdivision (b) to make any explicit allowance for waiving a jury for a retrial of
penalty was due merely to inadvertence by the drafters of the initiative.17 The
prosecutor apparently agreed.
After taking the matter under submission, the trial court decided to permit
defendant to waive his right to a jury. The court then subjected defendant to an
extensive voir dire during which defendant affirmed that he understood his rights,
had discussed the issue with his attorneys, and wished to waive his right to a jury.
In particular, defendant stated he understood that the trial court was aware of
certain facts, such as the existence of his taped and written confessions (excluded
from evidence in the guilt phase) and his conviction for soliciting A.L.’s murder
(also excluded), that would not be presented to a new penalty jury. Defense
counsel concurred in the waiver, as did the prosecutor. The trial court thereafter
found “the aggravating circumstances are so substantial in comparison with the
mitigating circumstances that the sentence of death is warranted rather than life
Defendant contends that permitting him to waive a jury for the penalty
phase retrial violated section 190.4 as well as his constitutional rights under the
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Defense counsel assured the court that the decision to waive a jury was not
made lightly and that they had tactical reasons for doing so.
Although the matter is apparently one of first impression, as we explain, we
disagree defendant was precluded from waiving his right to a jury.
Section 190.4, subdivision (b) provides: “If defendant was convicted by
the court sitting without a jury[,] the trier of fact at the penalty hearing shall be a
jury unless a jury is waived by the defendant and the people, in which case the
trier of fact shall be the court. If the defendant was convicted by a plea of guilty,
the trier of fact shall be a jury unless a jury is waived by the defendant and the
“If the trier of fact is a jury and has been unable to reach a unanimous
verdict as to what the penalty shall be, the court shall dismiss the jury and shall
order a new jury impaneled to try the issue as to what the penalty shall be. If such
new jury is unable to reach a unanimous verdict as to what the penalty shall be, the
court in its discretion shall either order a new jury or impose a punishment of
confinement in state prison for a term of life without the possibility of parole.”
Defendant argues section 190.4 is mandatory — the trial court “shall order
a new jury impaneled” (italics added) — and that the plain language of the statute
precludes a jury waiver for a penalty phase retrial where, as here, the guilt phase
was tried to a jury. (See People v. Johnson (2002) 28 Cal.4th 240, 244 [“If the
plain language of the statute is clear and unambiguous, our inquiry ends, and we
need not embark on judicial construction”].) Although the first paragraph of
section 190.4, subdivision (b) states explicitly that a jury may be waived in cases
where trial was to the court, defendant emphasizes the second paragraph of the
same subdivision does not mention a waiver when the first trial was by jury. (See
People v. Giordano (2007) 42 Cal.4th 644, 670 [where statute in reference to one
subject includes a given provision, omission of the same from a similar or related
statute on the same subject suggests a different intention]; In re Jose A. (1992) 5
Cal.App.4th 697, 701-702 [same].) Finally, defendant contends that to permit a
waiver under these circumstances would render the waiver language in the first
paragraph surplusage. (See Johnson, at p. 247 [“We will avoid an interpretation
that makes surplusage of a portion of a statute”].)
Although defendant’s arguments bear the patina of logic, he engages in
such a minute examination of the trees that he misses a very large forest. We need
not here set forth an exhaustive exegesis of the history and importance of the right
to trial by jury in American jurisprudence.18 Suffice it to say that the Sixth
Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been
committed,” and this amendment applies to the states. (Collins v. Youngblood
(1990) 497 U.S. 37, 51; Duncan v. Louisiana, supra, 391 U.S. 145.) Our own
state Constitution provides that “[t]rial by jury is an inviolate right and shall be
secured to all.” (Cal. Const., art. I, § 16.) But the state Constitution contains a
“The right to have a jury make the ultimate determination of guilt has an
impressive pedigree. Blackstone described ‘trial by jury’ as requiring that ‘the
truth of every accusation, whether preferred in the shape of indictment,
information, or appeal, should afterwards be confirmed by the unanimous suffrage
of twelve of [the defendant’s] equals and neighbors. . . .’ 4 W. Blackstone,
Commentaries on the Laws of England 343 (1769) (emphasis added). Justice
Story wrote that the ‘trial by jury’ guaranteed by the Constitution was ‘generally
understood to mean . . . a trial by a jury of twelve men, impartially selected, who
must unanimously concur in the guilt of the accused before a legal conviction can
be had.’ 2 J. Story, Commentaries on the Constitution of the United States 541,
n. 2 (4th ed. 1873) (emphasis added and deleted). This right was designed ‘to
guard against a spirit of oppression and tyranny on the part of rulers,’ and ‘was
from very early times insisted on by our ancestors in the parent country, as the
great bulwark of their civil and political liberties.’ Id., at 540-541. See also
Duncan v. Louisiana, 391 U.S. 145, 151-154 (1968) (tracing the history of trial by
jury).” (United States v. Gaudin (1995) 515 U.S. 506, 510-511, fn. omitted.)
caveat that is pertinent here: “A jury may be waived in a criminal cause by the
consent of both parties expressed in open court by the defendant and the
defendant’s counsel.” (Ibid., italics added.)
The United States Supreme Court takes the same view. “The short of the
matter is that an accused, in the exercise of a free and intelligent choice, and with
the considered approval of the court, may waive trial by jury. . . . There is nothing
in the Constitution to prevent an accused from choosing to have his fate tried
before a judge without a jury.” (Adams v. U.S. ex rel. McCann (1942) 317 U.S.
269, 275, italics added.) Moreover, that the jury trial right may inure to society’s
benefit does not preclude a waiver: “It is not true that any private right that also
benefits society cannot be waived. In general, ‘[i]n an adversary system of
criminal justice, the public interest in the administration of justice is protected by
the participants in the litigation.’ [Citation.] We allow waiver of numerous
constitutional protections for criminal defendants that also serve broader social
interests.” (New York v. Hill (2000) 528 U.S. 110, 117 [specifically citing waiver
of the jury trial right].) Thus, so long as a criminal defendant is competent (see
Cooper v. Oklahoma (1996) 517 U.S. 348, 364), he or she may waive the right to
be tried by a jury.
Against this background, defendant’s argument is revealed as meritless.
Because the default position in criminal cases is a trial by jury, with a jury trial
waiver the exception, the first paragraph of section 190.4, subdivision (b) must be
read to mean that, despite the fact an accused waived his right to a jury for the
guilt phase, the trial court must presume the defendant wants a jury to try the
penalty phase unless a jury is again waived. In other words, as an added
protection for criminal defendants, a single jury trial waiver given early in the trial
process is insufficient; a defendant must reaffirm his waiver for the penalty phase.
This view of section 190.4, subdivision (b) explains why the first paragraph
includes an explicit mention of waiver.
The meaning of the second paragraph dovetails with the first: If a jury was
not waived for the penalty phase of trial, it shall be presumed the defendant also
desires a jury for any retrial of that phase. This presumption, however, can — as
in all situations in which the jury trial right attaches — be overcome with a
knowing and intelligent waiver, personally given in open court. Contrary to
defendant’s suggestion, this interpretation of the two paragraphs in section 190.4,
subdivision (b) recognizes no surplusage, no redundancy, and no anomalous
preclusion of waiver.
Defendant presents no possible legislative intention why the framers of the
1978 death penalty law would desire to prohibit a capital defendant from waiving
his right to a jury trial under these circumstances. Moreover, that the law makes
no specific provision for waiving a jury after one jury has convicted a defendant in
the guilt phase and sustained one or more special circumstance allegations, but
then has hung on the penalty question, is understandable. No doubt defendant and
his attorneys had tactical reasons for waiving a jury for the penalty phase retrial, as
one counsel stated for the record, but the situation is nevertheless unusual.
Although this case apparently is the first to come before this court in such a
posture, we conclude that, for the reasons stated, the trial court did not err by
accepting defendant’s jury trial waiver for the penalty phase retrial.19
Defendant makes no argument that his waiver was unknowing, involuntary,
or otherwise legally defective.
2. CALJIC No. 8.85
For the penalty phase retrial, the trial court considered and applied CALJIC
No. 8.85, which set forth the various factors in aggravation and mitigation. In
fact, defense counsel asserted that, at the suggestion of “both parties,” the trial
court should be guided by CALJIC No. 8.85. He now claims, however, that this
instruction “violates the federal [C]onstitution because it invites the trier of fact to
consider inapplicable factors, which introduces confusion, capriciousness, and
unreliability into the capital decision-making process.” Even assuming for
purposes of argument that the error was not invited (People v. Carpenter (1997)
15 Cal.4th 312, 420), we have rejected this precise argument (see, e.g., People v.
Moon, supra, 37 Cal.4th at p. 42), and defendant presents no reason why our
previous pronouncements on the subject were in error. Moreover, because
defendant waived a jury and had the penalty decision made by the trial court, it
was unlikely in the extreme that he suffered any prejudice in any event. We thus
reject the argument.
3. CALJIC. No. 8.88
In capital cases tried during the 1980’s, the jury was usually given CALJIC
No. 8.88, which instructed juries how to consider and weigh the mitigating and
aggravating evidence. As defendant waived a jury for the penalty phase retrial,
the trial court agreed to be guided by the same instruction. Defendant now
contends the instruction was “constitutionally flawed” because it “did not
adequately convey several critical deliberative principles, and was misleading and
vague in crucial respects.” He claims these defects violated his rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. Examination of the reasons underlying these claims reveals we have
rejected them in many previous decisions.
Thus, we conclude the instruction:
(a) Is not overly vague for using the words “so substantial” as a modifying
phrase (People v. Abilez, supra, 41 Cal.4th at p. 530);
(b) Is not flawed for providing that the jury should choose the penalty that
is “warrant[ed]” rather than “appropriate” (People v. Moon, supra, 37 Cal.4th at
(c) Is not flawed for failing to affirmatively require a life sentence if the
mitigating factors outweigh the aggravating ones (People v. Moon, supra, 37
Cal.4th at p. 42);
(d) Is not flawed for failing to affirmatively allow the jury to impose a life
sentence even if the aggravating factors outweigh the mitigating ones (People v.
Coffman and Marlow (2004) 34 Cal.4th 1, 124); and
(e) Is not flawed for failing to assign the burden of proof to one of the
parties (People v. Moon, supra, 37 Cal.4th at p. 44).
We thus reject defendant’s constitutional claims. In any event, because
penalty was tried to the court and not a jury, it is extremely unlikely that defendant
was prejudiced by these alleged instructional flaws.
4. Challenges to the Death Penalty Based on International Law
Defendant contends imposition of the death penalty violates “international
norms of humanity and decency.” In particular, he cites article 6 of the
International Covenant on Civil and Political Rights and the laws of the nations of
Western Europe. We previously have rejected identical claims. (People v. Abilez,
supra, 41 Cal.4th at p. 535; see also People v. Moon, supra, 37 Cal.4th at p. 48
[specifically addressing the comparison to the laws of Western Europe].)
Although defendant argues we should reconsider our previous views on the
subject, he offers no reasons why we should do so. He further argues we should
apply “a series of safeguards to protect the rights of those facing the death
penalty” as adopted by the United Nations Economic and Social Council in
1984,20 but does not explain why those safeguards should apply here, or how or
whether they would change the analysis or result in this case. “ ‘[E]very brief
should contain a legal argument with citation of authorities on the points made. If
none is furnished on a particular point, the court may treat it as waived, and pass it
without consideration. [Citations.]’ (9 Witkin, Cal. Procedure, (3d ed. 1985)
Appeal, § 479, p. 469 . . . .)” (People v. Stanley (1995) 10 Cal.4th 764, 793.) We
thus reject the contention.
5. Constitutional Challenges to the Death Penalty
Defendant contends that “[m]any features of this state’s capital sentencing
scheme violate the United States Constitution, either alone or in combination with
each other.” We disagree:
(a) “As in People v. Alfaro (2007) 41 Cal.4th 1277, defendant contends
section 190.3, factor (a) is unconstitutional as applied because it is susceptible of
arbitrary, ‘wanton and freakish’ application. ‘We repeatedly have held that
consideration of the circumstances of the crime under section 190.3, factor (a)
does not result in arbitrary or capricious imposition of the death penalty.’ ”
(People v. Brasure (2008) 42 Cal.4th 1037, 1066.)
(b) The death penalty law is not unconstitutional for failing to require a
burden of proof or persuasion with regard to aggravating circumstances, their
See, e.g., United Nations Economic and Social Council, resolution No.
1984/50 (May 25, 1984) Safeguards guaranteeing protection of the rights of those
facing the death penalty, found in Resolutions and Decisions of the Economic and
Social Council: organizational session for 1984 (Off. Records Supp. 1) page 33,
endorsed by the United Nations General Assembly, and adopted by the Seventh
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders (1986), as discussed in Justice Brennan’s dissenting opinion in Stanford
v. Kentucky (1989) 492 U.S. 361, 390 and footnote 10.
relative weight compared to the mitigating circumstances, or for the determination
that death is the appropriate sentence. (People v. Moon, supra, 37 Cal.4th at
pp. 43-44.) That “[t]wenty-five states require that any factors relied on to impose
death in a penalty phase must be proven beyond a reasonable doubt,” as defendant
contends, does not erode our confidence in the constitutionality of this state’s
death penalty law. “A capital sentencer need not be instructed how to weigh any
particular fact in the capital sentencing decision.” (Tuilaepa v. California (1994)
512 U.S. 967, 979 [referring to California law].)
(c) Recent United States Supreme Court decisions applicable to criminal
sentencing do not undermine the validity of the state’s death penalty law. “We
repeatedly have held that neither Apprendi v. New Jersey (2000) 530 U.S. 466 nor
Ring v. Arizona (2002) 536 U.S. 584 affects California’s death penalty law or
otherwise justifies reconsideration of [our precedents in this area].” (People v.
Morrison (2004) 34 Cal.4th 698, 731.) Blakely v. Washington (2004) 542 U.S.
296, decided more recently than Ring and Apprendi, does not alter the analysis.
(People v. Brasure, supra, 42 Cal.4th at pp. 1067-1068.) In any event, defendant’s
proposed requirement of findings “additional” to those reached after the guilt
phase is no doubt satisfied by the trial court’s extensive written ruling on the issue
(d) The death penalty law is not unconstitutional for failing to require
intercase proportionality review. (People v. Abilez, supra, 41 Cal.4th at p. 534.)
(e) The death penalty law is not unconstitutional for failing to afford equal
protection of the laws to capital defendants as compared to noncapital defendants.
(People v. Abilez, supra, 41 Cal.4th at p. 534.)
6. Alleged Effect of Cumulative Error
Defendant lastly contends that the cumulative effect of the errors in his trial
undermines confidence in the result and violated his Eighth Amendment right to a
reliable penalty determination. Having found no errors and certainly no
prejudicial ones, we reject this claim as well.
The guilt and penalty judgments are affirmed in their entirety.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Hovarter
Original Appeal XXX
Opinion No. S018637
Date Filed: August 11, 2008
Judge: William F. Ferroggiaro, Jr.
Attorneys for Appellant:
Lynne S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the Supreme Court,
and Denise Kendall, Assistant State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Ronald S. Matthias and David H. Rose, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
David H. Rose
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Mon, 08/11/2008||44 Cal. 4th 983, 189 P.3d 300, 81 Cal. Rptr. 3d 299||S018637||Automatic Appeal||closed; remittitur issued|| |
HOVARTER (JACKIE) ON H.C. (S133770)
|1||The People (Respondent)|
Represented by Attorney General - San Francisco Office
David H. Rose, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Hovarter, Jackie Ray (Appellant)|
Represented by Office Of The State Public Defender-Sf
Denise Kendall, Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Aug 11 2008||Opinion: Affirmed|
|Nov 30 1990||Judgment of death|
|Dec 7 1990||Filed certified copy of Judgment of Death Rendered|
|Dec 7 1990||Application for Extension of Time filed|
By Court Reporters to Complete R.T.
|Dec 10 1990||Extension of Time application Granted|
To Court Reporters To 2-19-91 To Complete R.T.
|Feb 8 1991||Application for Extension of Time filed|
By Court Reporters to Complete R.T.
|Feb 26 1991||Extension of Time application Granted|
To Court Reporters To 3-20-91 To Complete R.T.
|Apr 19 1991||Extension of Time application Granted|
To Applt To 6-17-91 To request Corr. of Record.
|Mar 2 1994||Counsel appointment order filed|
Willard F. Jones Is Hereby appointed to represent Applt on His Automatic Appeal now Pending in this Court, Including Any Related Habeas Proceedings.
|Mar 30 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Mar 30 1994||Extension of Time application Granted|
To Applt To 5-31-94 To request Corr. of Record.
|May 26 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|May 31 1994||Extension of Time application Granted|
To Applt To 8-1-94 To request Corr. of Record.
|Jul 29 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Jul 29 1994||Received:|
Copy of Applt's request for Additional Record and to Examine Sealed And/or Confidential Transcripts or Records (filed in Humboldt Co. Superior Court)
|Aug 1 1994||Extension of Time application Granted|
To Applt To 9-30-94 To request Corr. of Record.
|Sep 7 1994||Compensation awarded counsel|
|Sep 30 1994||Application for Extension of Time filed|
By Applt to request correction of Record.
|Oct 3 1994||Extension of Time application Granted|
To Applt To 11-29-94 To request Corr. of Record.
|Oct 20 1994||Received:|
Copy of Applt's request for Additional corrections to Record (filed in Superior Court).
|Jan 3 1996||Compensation awarded counsel|
|Feb 26 1996||Record on appeal filed|
C-25 (6,428 Pp.) and R-43 (11,216 Pp.); Clerk's Transcript includes 2,362 pages of Juror Questionnaires.
|Feb 26 1996||Appellant's opening brief letter sent, due:|
|Mar 7 1996||Compensation awarded counsel|
|Apr 5 1996||Application for Extension of Time filed|
To file Aob.
|Apr 8 1996||Extension of Time application Granted|
To 6-7-96 To file Aob.
|May 9 1996||Compensation awarded counsel|
|Jun 4 1996||Application for Extension of Time filed|
To file Aob.
|Jun 12 1996||Extension of Time application Granted|
To 8-6-96 To file Aob.
|Aug 5 1996||Application for Extension of Time filed|
To file Aob.
|Aug 12 1996||Extension of Time application Granted|
To 9-5-96 To file Aob.
|Sep 5 1996||Application for Extension of Time filed|
To file Aob.
|Sep 9 1996||Extension of Time application Granted|
To 11-4-96 To file Aob.
|Nov 1 1996||Application for Extension of Time filed|
To file Aob.
|Nov 13 1996||Extension of Time application Granted|
To 12-4-96 To file Aob.
|Dec 2 1996||Application for Extension of Time filed|
To file Aob.
|Dec 3 1996||Extension of Time application Granted|
To 1-3-97 To file Aob.
|Jan 2 1997||Application for Extension of Time filed|
To file Aob.
|Jan 6 1997||Filed:|
Suppl request for Eot to file Aob.
|Jan 8 1997||Extension of Time application Granted|
To 3-4-97 To file Aob.
|Jan 30 1997||Compensation awarded counsel|
|Mar 3 1997||Filed:|
Request of Willard F. Jones for Leave to withdraw as Counsel for Applt.
|Mar 3 1997||Application for Extension of Time filed|
To file Aob.
|Mar 21 1997||Extension of Time application Granted|
To 5-5-97 To file Aob.
|May 6 1997||Application for Extension of Time filed|
To file Aob.
|May 15 1997||Extension of Time application Granted|
To 7-7-97 To file Aob.
|Jul 8 1997||Application for Extension of Time filed|
To file Aob.
|Jul 10 1997||Extension of Time application Granted|
To 9-5-97 To file Aob.
|Aug 27 1997||Order filed|
Good cause appearing, the request of appointed counsel for permission to withdraw as attorney of record for appellant, filed March 3, 1997, is granted. The order appointing Willard F. Jones as counsel of record for appellant Jackie Ray Hovarter, filed on March 2, 1994, is hereby vacated. On the court's own motion, the State Public Defender is hereby appointed to represent appellant Jackie Ray Hovarter is his automatic appeal now pending in this court, including any related habeas corpus proceedings. Mr. Jones is ordered to transmit forthwith all case files, transcripts and any other case-related materials to Art Ruthenbeck, Acting Chief Assistant, Office of the State Public Defender, 221 Main Street, 10th Floor, San Francisco, California, 94105.
|Dec 22 1998||Letter sent to:|
Counsel Advising that AOB will be Due on or before 7-1-99.
|Jun 30 1999||Application for Extension of Time filed|
To file Aob.
|Jul 6 1999||Extension of Time application Granted|
To 8-30-99 To file AOB
|Aug 30 1999||Application for Extension of Time filed|
To file Aob.
|Sep 17 1999||Extension of Time application Granted|
To 9/29/99 To file Aob.
|Sep 28 1999||Application for Extension of Time filed|
To file Aob.
|Oct 7 1999||Extension of Time application Granted|
To 10/29/99 To file Aob.
|Oct 28 1999||Application for Extension of Time filed|
To file Aob.
|Nov 2 1999||Extension of Time application Granted|
To 12/28/99 To file Aob.
|Dec 29 1999||Application for Extension of Time filed|
To file Aob.
|Jan 5 2000||Extension of Time application Granted|
To 2/28/2000 To file Aob.
|Feb 28 2000||Application for Extension of Time filed|
To file Aob.
|Mar 2 2000||Extension of Time application Granted|
To 3/29/2000 To file Aob.
|Mar 30 2000||Application for Extension of Time filed|
To file Aob.
|Apr 13 2000||Extension of Time application Granted|
To 4/28/2000 To file Aob.
|May 1 2000||Application for Extension of Time filed|
To file Aob.
|May 2 2000||Application for Extension of Time filed|
Amended Applic for Eot to file Aob.
|May 16 2000||Extension of Time application Granted|
To 6/27/2000 To file Aob.
|Jun 27 2000||Application for Extension of Time filed|
To file Aob.
|Jul 3 2000||Extension of Time application Granted|
To 7/27/2000 to file AOB.
|Jul 26 2000||Application for Extension of Time filed|
To file AOB. (10th request)
|Aug 2 2000||Extension of Time application Granted|
to 8-28-2000 to file AOB.
|Aug 24 2000||Application for Extension of Time filed|
to file AOB (11th request)
|Aug 24 2000||Counsel's status report received (confidential)|
|Aug 31 2000||Extension of Time application Granted|
To 9/27/2000 to file AOB.
|Sep 26 2000||Application for Extension of Time filed|
To file AOB. (12 request)
|Oct 11 2000||Extension of Time application Granted|
To 10/27/2000 to file AOB.
|Oct 24 2000||Application for Extension of Time filed|
To file AOB. (13th request)
|Oct 25 2000||Counsel's status report received (confidential)|
from State P.D.
|Nov 3 2000||Extension of Time application Granted|
To 11/27/2000 to file AOB.
|Nov 27 2000||Application for Extension of Time filed|
To file AOB. (14th request)
|Dec 21 2000||Extension of Time application Granted|
To 1/26/2001 to file AOB.
|Dec 28 2000||Counsel's status report received (confidential)|
|Jan 25 2001||Application for Extension of Time filed|
To file AOB. (15th request)
|Feb 21 2001||Extension of Time application Granted|
To 2/26/2001 to file AOB.
|Feb 26 2001||Application for Extension of Time filed|
To file AOB. (16th request)
|Mar 7 2001||Extension of Time application Granted|
To 3/28/2001 to file AOB.
|Mar 26 2001||Application for Extension of Time filed|
To file AOB. (17th request)
|Apr 13 2001||Extension of Time application Granted|
To 4/27/2001 to file AOB.
|Apr 26 2001||Application for Extension of Time filed|
to file AOB. (18th request)
|Apr 27 2001||Counsel's status report received (confidential)|
from State P.D.
|Apr 30 2001||Extension of Time application Granted|
To 6/26/2001 to file AOB.
|Jun 28 2001||Application for Extension of Time filed|
to file AOB. (19th request)
|Jun 29 2001||Counsel's status report received (confidential)|
from the SPD
|Jul 5 2001||Extension of Time application Granted|
to 8-27-2001 to file AOB.
|Aug 24 2001||Counsel's status report received (confidential)|
from State P.D.
|Aug 24 2001||Application for Extension of Time filed|
To file AOB. (20th request)
|Sep 10 2001||Extension of Time application Granted|
To 10/26/2001 to file AOB.
|Oct 24 2001||Counsel's status report received (confidential)|
from State P.D.
|Oct 25 2001||Application for Extension of Time filed|
To file AOB. (21st request)
|Nov 1 2001||Extension of Time application Granted|
To 12/26/2001 to file AOB.
|Dec 21 2001||Request for extension of time filed|
To file AOB. (22nd request)
|Dec 21 2001||Counsel's status report received (confidential)|
from State P.D.
|Jan 8 2002||Extension of time granted|
To 2/25/2002 to file AOB. Dep. State PD Kendall anticipates filing the brief by 12/26/2002. Only five further extensions totaling 305 additional days are contemplated.
|Feb 20 2002||Request for extension of time filed|
To file AOB. (23rd request)
|Feb 20 2002||Counsel's status report received (confidential)|
from State P.D.
|Feb 28 2002||Extension of time granted|
To 4/26/2002 to file AOB. Senior Dep. State PD Kendall anticipates filing the brief by 12/26/2002. Only four further extensions totaling 245 additional days are contemplated.
|Apr 25 2002||Counsel's status report received (confidential)|
from State P.D.
|Apr 25 2002||Request for extension of time filed|
To file AOB. (24th request)
|Apr 30 2002||Extension of time granted|
To 6/25/2002 to file AOB. Asst. State Public Defender Kendall anticipates filing the brief by 12/26/2002. Three further extensions totaling 185 additional days are contemplated.
|Jun 14 2002||Request for extension of time filed|
To file AOB. (25th request)
|Jun 14 2002||Counsel's status report received (confidential)|
|Jun 21 2002||Extension of time granted|
to 8-26-2002 to file AOB. After that date, only two further extensions totaling 122 additional days are contemplated. Extension granted based upon Asst. State Public Defender Denise Kendall's representation that she anticipates filing the AOB by 12-26-2002.
|Aug 23 2002||Request for extension of time filed|
to file AOB. (26th request)
|Aug 23 2002||Counsel's status report received (confidential)|
|Aug 28 2002||Extension of time granted|
to 10-25-2002 to file AOB. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting atty or entity, if any, and any assisting atty or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
|Oct 22 2002||Counsel's status report received (confidential)|
|Oct 22 2002||Request for extension of time filed|
To file appellant's opening brief. (27th request)
|Oct 29 2002||Extension of time granted|
To 12/24/2002 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing that brief by 3/26/2003.
|Dec 23 2002||Request for extension of time filed|
To file appellant's opening brief. (28th request)
|Dec 23 2002||Counsel's status report received (confidential)|
|Dec 30 2002||Extension of time granted|
To 2/24/2003 to file appellant's opening brief. After that date, only one further extension totaling 30 additional days will be granted. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticiaptes filing that brief by 3/26/2003.
|Feb 24 2003||Request for extension of time filed|
to file appellant's opening brief. (29th request)
|Feb 24 2003||Counsel's status report received (confidential)|
|Feb 27 2003||Extension of time granted|
to 4/28/2003 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing that brief by 4/26/2003.
|Apr 14 2003||Request for extension of time filed|
to file appellant's opening brief. (30th request)
|Apr 18 2003||Extension of time granted|
to 5/14/2003 to file appellant's opening brief. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing that brief by 5/14/2003. After that date, no further extension will be granted.
|Apr 28 2003||Counsel's status report received (confidential)|
|May 14 2003||Application to file over-length brief filed|
to file appellant's opening brief. (314 pp. AOB submitted under separate cover)
|May 19 2003||Order filed|
Appellant's application to file over-length opening brief is granted.
|May 19 2003||Appellant's opening brief filed|
|Jun 13 2003||Request for extension of time filed|
to file respondent's brief. (1st request)
|Jun 17 2003||Extension of time granted|
to 8/12/2003 to file respondent's brief.
|Jun 25 2003||Counsel's status report received (confidential)|
|Aug 8 2003||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Aug 12 2003||Extension of time granted|
to 10/14/2003 to file respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General David H. Rhodes's representation that he anticipates filing that brief by 12/15/2003.
|Aug 22 2003||Counsel's status report received (confidential)|
|Oct 16 2003||Request for extension of time filed|
to file respondent's brief. (3rd request)
|Oct 21 2003||Extension of time granted|
to 12/15/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General David H. Rose's representation that he anticiptes filing that brief by 12/15/2003. After that date, no further extension will be granted.
|Oct 21 2003||Counsel's status report received (confidential)|
|Dec 10 2003||Request for extension of time filed|
to file respondent's brief. (4th request)
|Dec 17 2003||Extension of time granted|
to 12/26/2003 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General David H. Rose's representation that he anticipates filing that brief by 12/25/2004.
|Dec 19 2003||Counsel's status report received (confidential)|
from State P.D.
|Dec 19 2003||Respondent's brief filed|
|Jan 6 2004||Request for extension of time filed|
to file appellant's reply brief. (1st request)
|Jan 8 2004||Extension of time granted|
to 3/8/2004 to file appellant's reply brief.
|Feb 17 2004||Counsel's status report received (confidential)|
|Mar 4 2004||Request for extension of time filed|
to file appellant's reply brief. (2nd request)
|Mar 12 2004||Extension of time granted|
to 5/7/2004 to file appellant's reply brief. After that date, only two further extensions totaling about 115 additional days will be granted. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing that brief by 8/31/2004.
|Apr 19 2004||Counsel's status report received (confidential)|
from State P.D.
|May 11 2004||Request for extension of time filed|
to file appellant's reply brief. (3rd request)
|May 18 2004||Extension of time granted|
to 7-6-2004 to file reply brief. After that date, only one further extension totaling about 55 additional days will be granted. Extension granted based upon Asst. State P.D. Denise Kendall's representation that she anticipates filing the brief by 8-31-2004.
|Jun 11 2004||Request for extension of time filed|
to file reply brief. (4th request)
|Jun 11 2004||Counsel's status report received (confidential)|
from State P.D.
|Jun 14 2004||Extension of time granted|
to 8/31/2004 to file appellant's opening brief. based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing that brief by 8/31/2004. After that date, no further extension will be granted.
|Jul 13 2004||Order filed|
Due to clerical error, the order filed in the above case on June 14, 2004, is amended to read as follows: Good cause appearing, and based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing the appellant's reply brief by August 31, 2004, counsel's request for an extension of time in which to file that brief is granted to August 31, 2004. After that date, no further extension will be granted.
|Aug 10 2004||Request for extension of time filed|
to file appellant's reply brief. (5th request)
|Aug 10 2004||Counsel's status report received (confidential)|
from State P.D.
|Aug 13 2004||Extension of time granted|
to 9-30-2004 to file reply brief. After that date, no further extension will be granted. Extension granted based upon Asst. State Public Defender Denise Kendall's representation that she anticipates filing the brief by 9-30-2004.
|Sep 17 2004||Request for extension of time filed|
to file appellant's reply brief. (6th request)
|Sep 21 2004||Extension of time granted|
to 11/1/2004 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticiaptes filing that brief by 10/30/2004.
|Oct 18 2004||Counsel's status report received (confidential)|
by State P.D.
|Oct 22 2004||Request for extension of time filed|
to file appellant's opening brief. (7th request)
|Oct 29 2004||Extension of time granted|
to 11/10/2004 to file appellant's reply brief. Extension is granted based upon Assistant State Public Defender Denise Kendall's representation that she anticipates filing that brief by 11/10/2004. After that date, no further extension will be granted.
|Nov 10 2004||Appellant's reply brief filed|
((16,763 words; 64 pp.)
|May 9 2005||Related habeas corpus petition filed (concurrent)|
|Mar 13 2008||Received:|
letter from Assistant SPD Denise Kendall, dated March 13, 2008 requesting that the court place the case on its calendar for the week of May 26, 2008 due to pre-planned pre-paid vacation out of country.
|Mar 13 2008||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Mar 20 2008||Filed:|
(supplemental) declaration of service of Asst. SPD Denise Kendall's letter, received on March 13, 2008.
|Apr 30 2008||Case ordered on calendar|
to be argued on Wednesday, May 28, 2008, at 1:30 p.m., in San Francisco
|May 7 2008||Received:|
appearance sheet from Assistant State Public Defender Denise Kendall, indicating 30 minutes for oral argument for appellant.
|May 12 2008||Filed:|
respondent's focus issue letter, dated May 9, 2008.
|May 12 2008||Received:|
appearance sheet from Deputy Attorney General David Rose, indicating 30 minutes for oral argument for respondent.
|May 13 2008||Filed:|
appellant's focus issue letter, dated May 12, 2008.
|May 28 2008||Cause argued and submitted|
|Aug 8 2008||Notice of forthcoming opinion posted|
|Aug 11 2008||Opinion filed: Judgment affirmed in full|
opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno, and Corrigan, JJ.
|Aug 25 2008||Rehearing petition filed|
by State Public Defender. (1530 words; 7 pp.)
|Aug 28 2008||Time extended to consider modification or rehearing|
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 7, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
|Sep 17 2008||Rehearing denied|
The petition for rehearing is denied.
|Sep 17 2008||Remittitur issued (AA)|
|Sep 22 2008||Received:|
acknowledgment of receipt of remittitur.
|May 19 2003||Appellant's opening brief filed|
|Dec 19 2003||Respondent's brief filed|
|Nov 10 2004||Appellant's reply brief filed|
Appendix 1.doc (1578496 bytes) - Appellants Opening Brief
Appendix 3.doc (148480 bytes) - Petition for Rehearing
Appendix 4.doc (162304 bytes) - Appellants Notes in Prep. for Oral Argument
|Jan 12, 2009|
Annotated by admin.ah
Written by: Amanda Bonn
Summary of Facts:
Dana Walsh's Disappearance and Death:
Appellant's Prior Conviction:
Jailhouse Informant Marolla:
Issues Presented on Appeal:
1. Whether the jailhouse informant's testimony should have been excluded by the trial court as inherently unreliable. (People v. Mayfield (1977) 14 Cal.4th 668, 735.)
2. Whether evidence of Appellant's prior convictions for the forcible rape, kidnapping, and attempted murder of another victim should have been excluded as not substantially similar (Evid. Code § 1101) and more prejudicial than probative (§ 352).
3. Whether Appellant's prior statements to A.L. that he “knew what he was doing” should have been excluded as irrelevant (Evid. Code § 210).
4. Whether duplicates of log sheets from the Appellant's place of employment should have been excluded as hearsay (Evid. Code § 1271 (d)), or as violating the best evidence rule (former § 1500, as amended by Stats. 1977, ch. 708 § 3, p. 2269 and repealed by Stats. 1998, ch. 100).
5. Whether each of Appellant's convictions is supported by substantial evidence. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
6. Whether the trial court's refusal to give a pinpoint jury instruction to view the jailhouse informant's testimony with caution was reversible error.
7. Whether Appellant validly waived his right to a jury trial in the retrial of the penalty phase under Pen. Code § 190.4 subd. (b) despite its mandatory language that a jury “shall” be empaneled.
8. Whether the jury instructions considered by the trial court at the penalty phase were unconstitutional. (CALJIC Nos. 8.85 & 8.88).
9. Whether California's capital sentencing scheme violates the United States Constitution and international law.
10. Whether the cumulative effect of errors in Appellant's trial undermines confidence in the outcome and violates the Eighth Amendment.
2. The trial court did not abuse its discretion by holding evidence of Appellant's prior conviction for the rape, kidnapping, and attempted murder of A.L was substantially similar to the instant case and more probative than prejudicial. (Opinion at 23.)
3. The trial court did not abuse its discretion in by holding that Appellant's statements to A.L., while somewhat vague, permitted an inference that he had committed a similar crime previously. (Opinion at 29.)
4. The trial court did not abuse its discretion in admitting the log sheets, as they satisfied the business records exception to the hearsay rule and the best evidence rule. (Opinion at 31.)
5. Substantial evidence supported the verdicts of forcible rape, kidnapping, and first degree murder, although the only evidence of rape and substantially all of the evidence of kidnapping and murder consisted of a jailhouse informant's testimony. (Opinion at 37-44).
6. The trial court did not err in refusing to give a pinpoint jury instruction on the credibility of informant testimony because such an instruction would have been duplicative of CALJIC Nos. 2.20 (credibility of witnesses generally) and 2.23 (credibility of witness convicted of a felony). (Opinion at 46.)
7. Neither Penal Code § 190.4 nor the United States Constitution preclude waiver of the right to trial by jury in the retrial of the penalty phase in a capital case. (Opinion at 54.)
8. CALJIC Nos. 8.85 and 8.88 are not constitutionally deficient, nor is there any risk of prejudice given that the trial court, and not a jury, was the fact-finder in the retrial of the penalty phase.
9. Appellant's challenges to California's capital sentencing scheme under international law and the United States Constitution are meritless. (Opinion at 57-58.)
10. There were no errors at Appellant's trial; therefore Appellant's contention that the cumulative effect of errors undermines confidence in the verdict is meritless. (Opinion at 59.)