Supreme Court of California Justia
Docket No. S041630
People v. Jablonski

Filed 1/23/06



Plaintiff and Respondent,







Defendant and Appellant.

Super. Ct. No. SC26601

A jury convicted defendant Phillip Carl Jablonski of the first degree

murders of Carol Spadoni and Eva Petersen. (Pen. Code, § 187.)1 The jury also

found true the special circumstance allegations that defendant murdered Petersen

while engaged in the commission or attempted commission of rape (§ 190.2, subd.

(a)(17)(iii)) and sodomy (§ 190.2, subd. (a)(17)(iv)). Additionally, the jury found

true prior-murder and multiple-murder special circumstance allegations (§ 190.2,

subd. (a)(2), (3)). After a sanity trial at which the jury found that defendant was

sane at the time of the commission of the offenses, the jury proceeded to the

penalty phase and ultimately returned a death verdict as to each count. The trial

court declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant

1 All further unspecified statutory references are to the Penal Code.

to death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,

subd. (b).)

We affirm.


A. Procedural History

On June 14, 1991, defendant was charged by indictment with the murders

of Carol Spadoni and Eva Petersen (§ 187) with the special circumstances that the

murder of Petersen occurred while defendant was engaged in the commission or

attempted commission of rape and sodomy (§ 190.2, subd. (a)(17) (iii), (iv)), in

addition to prior-murder and multiple-murder special circumstances (§ 190.2,

subd. (a)(2), (3)). It was further alleged that defendant had personally used a

firearm in the commission of the offenses (§ 12022.5). Defendant was also

alleged to have suffered prior serious felony convictions and to have served prior

prison terms (§§ 667, subd. (a)(1), 667.5, subd. (b)).2

On September 25, 1991, the trial court entered a plea of not guilty and a

denial of all special allegations on defendant’s behalf pursuant to section 1024.

Subsequently, defendant also pled not guilty by reason of insanity.

On June 3, 1993, criminal proceedings were suspended to determine

whether defendant was competent to stand trial (§ 1368). On November 10, 1993,

a jury found defendant competent and criminal proceedings were reinstated.

On January 25, 1994, jury selection began for defendant’s criminal trial

and, on April 25, the jury convicted defendant of both counts of first degree

2 The prior conviction and prior prison term allegations were ultimately stricken
at the People’s request.


murder and found true all special allegations except the prior-murder special

circumstance, which, in a bifurcated proceeding, was found true on April 26. On

May 2, the sanity phase commenced and, on May 10, the jury found that defendant

was sane at the time of the commission of the murders. On May 17, the penalty

phase commenced and, on June 17, the jury returned death verdicts.

On August 12, 1994, the trial court denied defendant’s automatic motion

for reduction of the death verdict and modification of the verdict. (§ 190.4, subd.

(e).) Defendant was sentenced to death on each count of murder. He was also

sentenced to five years on each firearm use enhancement, but those sentences were

stayed pending execution of the death sentences.

B. Guilt Phase Evidence

1. Events Leading up to the Spadoni-Petersen Murders

In April 1991, Carol Spadoni lived with her mother Eva Petersen on

Sanchez Street in Burlingame, in San Mateo County. Spadoni was defendant’s

wife. Their relationship had begun when Spadoni answered a personal ad

defendant had placed in a newspaper. They were married in 1982 at San Quentin

where defendant was an inmate. Eventually, Spadoni wanted to end her

relationship with defendant whom she described to a friend as “weird.” She told

the same friend she was afraid of defendant.

In the summer of 1990, Petersen telephoned Richard Muniz in Sacramento.

Muniz was a prison friend of defendant and through defendant had met Petersen

and Spadoni. After his release from prison, Muniz maintained a friendship with

the two women. Petersen asked Muniz to come to her house in Burlingame and

pick up some belongings that defendant had sent to the women in anticipation of

his release on parole. Petersen told Muniz she did not want defendant on her


property because she was afraid of him and afraid that he might harm her. Muniz

took the items and stored them in his own garage.

Around the same time, Spadoni talked to Robert Paredes, who became

defendant’s parole officer. Paredes was assigned to the Indio office in Riverside

County. Defendant had asked to be allowed to live with Spadoni in Burlingame,

but when Paredes informed Spadoni of this, she told Paredes she did not want

defendant living with her because she was afraid of him.

When defendant was released from the state prison at Vacaville in

September 1990, Muniz picked him up. Muniz told him that Petersen had given

Muniz the items defendant had sent to her and related Petersen’s statements.

Defendant spent the weekend with Muniz in Sacramento and then Muniz put him

on a bus to Southern California to meet Paredes in Indio. When Paredes met with

defendant, he informed defendant of various parole conditions, among them that

defendant was forbidden to travel more than 50 miles from his residence without

Paredes’s permission and was forbidden to go to Burlingame. Defendant was

displeased about this latter condition.

Paredes also required defendant to participate in a counseling program

because of his history of psychiatric problems. Defendant was eventually able to

get into a program at the Loma Linda Veterans Administration (hereafter VA)


At Christmas, defendant asked Paredes for permission to go to Sacramento

to visit Muniz and obtain a driver’s license. Paredes gave him permission but only

after he called Spadoni and informed her of defendant’s request. She had no

objection. Paredes told defendant not to go near San Mateo County. Defendant

spent a week in Sacramento with Muniz. He complained to Muniz that Spadoni

was listening to her mother and that Petersen was interfering with his plans to


move to Sacramento where he felt there were more employment opportunities.

Defendant seemed very upset about this situation. Muniz advised him to appeal

his parole situation through the Department of Corrections.

Defendant returned from Sacramento with a driver’s license and a 1965

Ford Fairlane. In January 1991, defendant enrolled in automotive classes at a

local community college. While taking these classes, defendant befriended

another student, Jim Lawrentz. Lawrentz testified that defendant tape-recorded

class sessions. He described defendant as “very intelligent.” Sometime around

April 18, defendant ascertained from Lawrentz that he owned a small gun and

offered to buy it from him. Initially, Lawrentz declined, but two days later he

changed his mind and sold defendant his R.G. 14 revolver and bullets. Defendant

was aware that he was not permitted to possess a gun because he was a convicted


On April 22, defendant told his instructor, John Tamulonis, that he would

not be in class the next day because he had a doctor’s appointment, but would be

in class the following evening. Tamulonis saw defendant again on the evening of

April 22 with another student, Fathyma Vann. Defendant did not return for his

evening class on April 23, nor did Tamulonis ever see him again.

2. The Spadoni-Petersen Murders

Robert Galindau was a friend of Carol Spadoni and Eva Petersen. He and

the two women met for coffee and doughnuts three times a week at a doughnut

shop. On April 24, 1991, after not having heard from the women for several days,

Galindau telephoned them. Two days later, on April 26, he drove to their house

on Sanchez Street. He noticed there were three or four days’ of newspapers in the

yard and a couple of packages on the hood of one of the two cars parked in the


driveway. He went around back and saw a cage containing cats. The cats had no

food or water and did not look well. Believing something was wrong, Galindau

notified police.

Burlingame Police Officer Frank Pickens arrived at the house around 7:20

a.m. There were newspapers and packages piled outside the house and he heard

dogs barking inside. He received no response when he knocked at the front door.

He searched the house for signs of forced entry, but found none. He did, however,

discover that a side door to the garage was unlocked. He entered the garage and

saw that the door from the garage into the kitchen was open. The body of an

elderly woman was lying on her back on the floor of the garage with her feet

facing toward the kitchen. There was a gag in her mouth with what appeared to be

a gunshot through it. Pickens and another officer entered the house together and

found the body of a second woman who, like the first woman, had been gagged.

The first body found was that of Eva Petersen. A towel had been folded

over and pushed into her mouth and a bullet had been shot through the towel.

Petersen was naked from her waist down; her sweat shirt and brassiere had been

pulled up above her breasts and around her neck. There was another bullet hole

above her right breast and a stab wound in her neck. There were also cuts around

one of her nipples and around her right eye; the cut to her nipple could have been

made with a knife, and the cut to her eye may also have been made by a knife.

Blood smears on the kitchen floor indicated that she had been dragged across the

kitchen. The stab wound to her throat had been made while she was still alive.

The cause of death was the gunshot wounds to her head and chest.

The second victim was Carol Spadoni. Her body was found in the living

room, dressed in a nightgown. Her nose and mouth were covered with duct tape

wrapped so tightly it would have cut off her breathing except that she had been


stabbed in the throat creating a functional tracheotomy. She had a bullet wound

behind her right ear and three stab marks in her abdomen. Additionally, half of

her right breast was sliced off, exposing a silicone implant. There were also stab

wounds to her vagina, and her intestines were protruding from her anus as the

result of a laceration. The cause of her death was the gunshot wound with the stab

wounds and duct tape suffocation as contributing factors. Because decomposition

had begun to set in, the pathologist who examined the bodies could not determine

if any sexual assault had occurred.

A journal found on the kitchen table showed a final entry dated April 23,

1991. Envelopes addressed to the victims from defendant were found on the

kitchen table and a letter addressed to “Mrs. Carol Jablonski” from defendant was

found in a bedroom. A computer check revealed that defendant had received a

traffic citation in Burlingame on the afternoon of April 23 for failing to yield the

right-of-way. The officer who initiated the stop observed no signs of intoxication

or nervousness during his brief encounter with defendant.

Police obtained a search warrant for Eva Petersen’s bank records and

discovered a check for $200 written to defendant and signed by Petersen. The

signature on the check did not match Petersen’s signature on her bank signature

card. A teller at the bank in Millbrae where the check was cashed later identified

defendant as the person who had cashed it on the afternoon of April 23. In

addition to cashing the check, defendant also withdrew $500 from his own savings


Defendant was arrested in Kansas on April 28, 1991. In his wallet, police

found $710, a $90 check drawn on Eva Petersen’s bank account and credit cards in

her name. A small address book was also found in defendant’s wallet. It

contained the names, address, and dates of birth of Eva Petersen and Carol


Spadoni. Beneath each name were the words “Death, April 23rd, 1991.” The

dates of the murders had not yet been made public.

A search of defendant’s car revealed a loaded .22-caliber revolver beneath

the driver’s side seat, and a box of .22-caliber cartridges in the ashtray. Bullets

removed from Eva Petersen’s body matched the bullets in the revolver. The bullet

recovered from Carol Spadoni’s brain matched the rifling characteristics of the

revolver, but the bullet was too damaged for a conclusive finding. Duct tape

found in the vehicle was consistent with the duct tape used on Spadoni. Also

recovered from defendant’s car were homemade wire handcuffs and an electric

taser. Police also found a knife sheath from which the knife was missing; the

sheath tested presumptively positive for blood. A black leather belt was also

recovered. On the back of the belt the names “Carol Jablonski 4-23-1991,

Burlingame, California” and “Eva Petersen 4-23-1991, Burlingame, California”

were written in ink. A handwriting expert determined that the writing on the belt

was defendant’s, as was the writing in the address book found in his wallet. Blue

pants found in a travel bag were stained with semen and human blood.

Also found in defendant’s vehicle was a tape recording in his voice in

which he described arriving at the victims’ residence, killing them, and sexually

assaulting Eva Petersen. In the tape, defendant described shooting Spadoni

through the brain, tying duct tape around her mouth and nose, stabbing her in the

throat, slicing open her breast and stabbing “her ass and pussy.” He also described

shooting Petersen, fondling her breasts, sodomizing her, having sexual intercourse

with her, and attempting to “take her eyes out.” He also described stabbing her in

her throat, and “in her stomach, ass and pussy.” After he killed the women,

defendant described moving their bodies, eating, showering, and shooting Petersen

through a towel he had placed in her mouth.


C. Sanity Phase Evidence

1. Defense Evidence

Dr. H.R. Kormos, a psychiatrist, conducted eight interviews with

defendant, beginning in March 1993 and continuing up to about a month before

trial. During his examination of defendant, he observed that defendant talked to

himself, drooled, exhibited facial muscle twitching, claimed that he heard voices

and displayed a lack of affect and flat facial expressions. Defendant also

complained he was experiencing flashbacks of traumatic experiences he had had

as a solider in Vietnam. Kormos diagnosed defendant as schizophrenic.

According to Kormos, defendant manifested all the symptoms of schizophrenia,

which he testified are known as the “four A’s”: association, affect, autism, and

ambivalence. “Association” means “that the person is having trouble keeping

their thoughts together in a logical fashion, and they continue to go off in different

directions with the reason for their going off into these different directions not

being very obvious to whatever witness is there.” “Affect” means “mood.”

Kormos explained that, “in schizophrenia, with people having a flattened mood,

there seems to be no change in their mood.” “Autism” denotes “a person who is

very much by themselves, and is not really linked with anyone else and,

importantly, doesn’t seem to be capable of linking up with anyone else.”

“Ambivalence” “indicates that the person . . . never seems to be clear about what

they want or how they want to go about it, and that kind of ambivalence can be


Kormos testified that certain factors in defendant’s childhood were relevant

to his diagnosis that defendant suffered from schizophrenia. Statements made by

defendant’s sister indicated that defendant’s father was violent toward both


defendant’s mother and defendant and that defendant had been sexually abused as

a child.

Kormos also considered whether defendant suffered from posttraumatic

stress disorder as a result of his experiences in Vietnam, but, because defendant’s

discharge papers did not indicate he had suffered any traumatic experiences while

in Vietnam, he could not make this diagnosis.

He testified, however, that his diagnosis of schizophrenia was well

supported by his conversations with other psychiatrists who had treated or

observed defendant, and by Kormos’s analysis of defendant’s prior criminal acts

and the circumstances of the charged offenses. Dr. Fleurant, the jail psychiatrist at

the San Mateo jail where defendant was housed, told Kormos that when defendant

first arrived at the jail he seemed psychotic, unable to care for himself, and

spouted gibberish. Fleurant ascribed these behaviors to schizophrenia and

prescribed high doses of antipsychotic medication, which seemed to help. Kormos

believed some of defendant’s physical symptoms were consistent with the

reactions of a schizophrenic to the medication. Kormos also spoke with Dr. Solon,

a prison psychiatrist who had treated defendant while defendant was in prison for

an earlier offense. Dr. Solon told Kormos he had no doubt defendant was

suffering from schizophrenia and described an incident in which defendant came

to him in a panicked and agitated state during which he was actively hallucinating.

A third psychiatrist, Dr. Roudebush, who was a staff psychiatrist at San

Quentin, wrote in a 1982 report that defendant was a schizophrenic and attributed

his sexual impulses to schizophrenia. At the time, defendant was in prison for

murdering Linda Kimball, a woman with whom he had lived, and was about to

marry Carol Spadoni. Roudebush told Kormos that defendant had come to him

and told him that, while massaging Spadoni’s neck during a visit, he had been


disturbed by “weird feelings” and an impulse to wrap Spadoni’s hair around her

neck. Kormos also reviewed a 1978 trial transcript from a civil trial in connection

with Kimball’s murder in which a Dr. Thompson testified that defendant was a

schizophrenic who was psychotic at the time of the homicide and should have

been hospitalized. He also reviewed reports from a psychiatric group that treated

defendant between 1968 and 1972 and diagnosed him as schizophrenic. Finally,

he cited a 1968 diagnosis of schizophrenia made at a VA hospital in Texas.

Kormos also testified about defendant’s history of violence towards

women. In 1968, defendant was hospitalized and given psychiatric treatment after

an incident during which he became so enraged with his first wife that he nearly

drowned her in the bathtub. He also exhibited other violent behavior towards her,

including smothering her with a pillow during sexual intercourse. When Kormos

discussed defendant’s first wife with him, defendant complained that she was

more involved in her profession as a dog trainer than in their marriage. Kormos

believed this statement indicated an extreme sensitivity on defendant’s part to

female rejection that played a part in “disorganizing” defendant and causing him

to function in an irrational manner. Kormos opined that the decision of the

military to hospitalize defendant for the attempted drowning incident, rather than

discipline him, indicated that defendant was “genuinely disturbed.”

Defendant also engaged in violence against Jane Sanders, the woman with

whom he lived after his first marriage ended. Defendant raped her on their first

date, but she nonetheless remained with him for four years. He also battered her

and continued his predilection for smothering his partner during sexual

intercourse. After Sanders left defendant, he committed another rape. Kormos


attributed the rape of Sanders and the later rape to defendant’s response to female


In 1978, defendant murdered Linda Kimball after she told him she was

leaving him with their child. He told a Dr. Flanagan that he strangled and sexually

assaulted Kimball because he did not “want to lose her.” Kormos opined that by

killing Kimball, defendant “took possession of her, and prevented her from being

possessed by any other man.” He described this as psychotic. Kormos

commented that the fact there was no evidence of sexual assault, notwithstanding

defendant’s description of the murder, was a further indication of defendant’s

“tenuous hold on reality” on “matters of violence, homicide, sex and so on.”

With respect to the current offenses, Kormos testified that defendant’s

primary purpose in killing and mutilating the victims was to express disdain and

contempt and to “seek[] revenge” on them and to “solve . . . his relationships with

his mother and women in general.” According to Kormos, defendant’s intent was

not so much to kill but “to destroy and to be totally in possession of” his victims.

Kormos ultimately opined that defendant “was not able to distinguish right from

wrong in relation to the acts that we’re talking about.” He stated: “The behavior

that I understand that took place was behavior that was completely and totally

dominated by this psychotic desire to destroy and possess and get back for [the]

unbearable rejections that he feels he has had. [¶] And . . . this sexual organ

mutilation that’s going on, this general destruction and humiliation that he’s

involved in, this is beyond right or wrong, this is in furtherance only of some set of

psychotic thoughts.”


2. Prosecution Evidence

Vitali Rozynko, a clinical psychologist, was appointed by the court to

examine defendant on the issue of legal sanity. He interviewed defendant on five

occasions and conducted a review of extensive background material, including

witness statements, statements by defendant’s sister and Jane Sanders, school and

military records and various psychiatric examinations and treatments dating back

to 1968. Rozynko agreed with Dr. Kormos that defendant suffered from chronic

schizophrenia and, in addition, sexual sadism and mixed personality disorder. He

also agreed that defendant was psychotic when he murdered Petersen and Spadoni.

Rozynko concluded, however, that defendant was legally sane at the time he

committed the instant offenses.

Rozynko’s conclusion was based, in part, on his observations of defendant

during his interviews with him. Defendant was oriented as to time and place and,

while he looked terrible, as if he were “tremendously overmedicated,” his answers

to Rozynko’s questions were “logical and relevant. His long term memory was

pretty good, he remembered things very well. Although, at times he tended to

contradict himself.” Rozynko concluded that defendant had “very little insight”

into why he had committed the crimes but also “that he really was only telling me

what he felt he had to say, that he wasn’t really telling me everything.” Rozynko

administered a Rorschach inkblot test to defendant and reviewed the results of a

previous inkblot test supplied by defense counsel. While on the earlier test,

defendant supplied unusual responses, the results of the test Rozynko administered

to defendant revealed that, while he had poor impulse control and problems

relating to people and dealing with anger, “he knew what other people knew was

right and was wrong, he knew what was appropriate, and was able to conform to

that.” Rozynko concluded that defendant’s control of his thoughts depended on


stress. If the level of stress was high, he would have less control over his

thoughts, but if things calmed down, he would be in control of his thoughts and

able to respond like other people.

Rozynko explained that schizophrenia alone would not necessarily prevent

someone from understanding the nature and quality of his acts, or knowing the

difference between right and wrong, unless he was so delusional and disorganized

in his thinking that “he cannot form an intention and literally cannot go across the

room without being distracted, [then] we might talk about not knowing right from

wrong.” Rozynko testified that defendant was not suffering from such “severe

delusions and severe disorganization” when he examined him nor, based on his

review of materials relating to the murders, did he believe defendant was suffering

from them at the time of the crimes. He described defendant’s behavior at the

time of the murders as “goal directed,” indicating he was in touch with reality

when he committed the crimes. Examples of this goal-directed behavior included

defendant’s acquisition of a gun before committing the murders, driving from

Indio to Burlingame, equipping himself with homemade wire handcuffs, a taser,

and extra clothing, and entering the victims’ home surreptitiously. Additionally,

after committing the crimes, defendant “took a shower, shaved, . . . went to a bank

and cashed a check, then he drove to Utah.” Rozynko commented, “if he was

trying to getaway [sic], he certainly knew what he did was wrong.” Rozynko

concluded that there was no question in his mind that defendant knew that society

disapproved of what he had done “and it was wrong.”

Dr. George Wilkinson, a court-appointed psychiatrist, also interviewed

defendant on five occasions and reviewed extensive background material.

Wilkinson did not believe defendant was schizophrenic. Instead, Wilkinson

diagnosed defendant as suffering from posttraumatic stress disorder, “transient”


psychotic episodes triggered by “overpowering aggressive or sexual feelings” that

“cannot be expressed,” and had a passive/aggressive personality with “intense

feelings of inadequacy” and was a sexual sadist. Wilkinson also concluded that

defendant engaged in malingering behavior.

As evidence that defendant was not schizophrenic, Wilkinson observed that

defendant’s history did not show social isolation, a characteristic of schizophrenia.

Defendant was able to befriend people, meet and establish relationships with

women and had formed a close relationship with another inmate while he was in

prison. Moreover, despite mental illness and periodic psychosis, defendant

functioned well enough most of the time, also indicating that the diagnosis of

schizophrenia was incorrect.

Wilkinson attributed defendant’s posttraumatic stress disorder to his

childhood and military experiences. He testified that this disorder could cause

someone to have temporary episodes of psychosis. He explained that a

“passive/aggressive” personality is a person who is not assertive and whose built-

up aggressive energies are expressed passively. A sexual sadist is an individual

who derives sexual pleasure from inflicting pain on an unwilling victim.

Wilkinson concluded that defendant also engaged in malingering, by which

he meant that defendant exaggerated his symptoms in order to “fool” Wilkinson

with the possible motive of saving his own life by presenting himself as insane. A

series of psychiatric tests indicated to Wilkinson that it was “very, very likely” that

defendant was malingering.” His conclusion was further supported by a statement

made by defendant to another psychiatrist in connection with a 1972 rape charge.

Defendant told the psychiatrist he had decided to plead not guilty by reason of

insanity to the charge because he hoped to “beat the case” with a psychiatric



Wilkinson testified that, based on his evaluation of over 300 murderers,

defendant qualified as a serial killer. A serial killer is someone who has the need

to kill repeatedly to release internal tensions. Defendant’s behavior in making the

tape recording of his crimes, inscribing the murders on his belt and writing the

death dates of the victims beneath their names in his address book fit the pattern of

a serial killer. Serial killers keep mementos or reminders of their crimes to help

them relive the experience and “retouch some of the gratification that they gained

by doing the acts.” They also frequently use these mementos to enhance

masturbation fantasies. Wilkinson testified that serial killer behavior might or

might not be an indication of legal insanity.

Ultimately, Wilkinson opined that defendant understood the nature and

quality of his conduct. He also concluded that defendant was aware of the

difference between right and wrong at the time of the crimes. As evidence of this,

Wilkinson pointed to defendant’s awareness that he had to be alone when he

confronted the victims and his flight after the crime. Moreover, there was nothing

to indicate that, even though he knew his conduct was legally wrong, defendant

believed he was morally justified in murdering the victims.

D. Penalty Phase Evidence

1. Prosecution Evidence

The prosecution presented extensive evidence of prior violent criminal

conduct by defendant as well as evidence of two other murders defendant

committed in the same time frame as the charged offenses.

a. Patsy Jablonski. Patsy Jablonski, defendant’s younger sister, testified

that when she was 14 years old and he was 16 years old, defendant came up

behind her, put a rope around her neck, threw her on the bed, and said, “I’m going


to get some of that off of you.” Defendant had an erection and she thought he was

going to rape her. He suddenly stopped, apologized and began to cry. When she

told their parents about the incident, their father beat defendant.

b. Alice McGowan. Alice McGowan was defendant’s first wife; they had

met in high school. After high school, defendant joined the military and was sent

overseas. They married upon his return in 1968. McGowan lived for two months

with defendant’s parents in California until she joined him in Texas, where he was

posted. In Texas, defendant became violent during sex. On one occasion, he put a

pillow over her face while they were having intercourse and tried to suffocate her.

On other occasions, he grabbed her throat and strangled her until she became

unconscious. Once, he came into the bathroom while she was bathing and tried to

drown her. On another occasion, while she was pregnant, he began to strangle her,

until his mother convinced him to stop.

c. Jane Sanders. After McGowan left defendant, he became involved with

Jane Sanders, whom he met in November 1968. On their first date, defendant

raped her. Sanders did not report the rape because she was afraid and ashamed. In

July 1969, with Sanders pregnant, defendant left the military and the couple

relocated to California where, after living with his parents, they moved into their

own house. Their sex life was marked by defendant’s violent behavior. On one

occasion, when they were having intercourse and Sanders wanted to stop,

defendant pulled out a pistol and threatened to shoot her if she did not continue.

He struck her with the butt of the gun, rendering her unconscious and, when she

came to, he was having sex with her. On another occasion, over Sanders’s

objection, he tied her to the bed while they were having sex and left her there. As

with McGowan, he smothered her with a pillow rendering her unconscious during

intercourse. She became afraid that, if he actually smothered her, their children


would be left alone with him. She left defendant in 1972. Shortly before she left,

defendant became angry at her and threw a frying pan filled with hot grease at her.

The pan missed. She hit him with the pan, knocked him out, and fled with their


d. Marsha Strain. Marsha Strain and her husband became acquainted with

defendant when they obtained dogs from a company for which defendant worked

that trained security guard dogs. Defendant had delivered the dogs to the Strains

and taught them how to handle them. On the evening of December 17, 1972,

defendant came to the Strains’ residence, even though Mr. Strain had asked him

not to, because he would be at work. Defendant and Mrs. Strain discussed

problems with one of the dogs. Defendant told her to watch from the bedroom

window while he worked with the dog outside. When she got to the bedroom

defendant was not outside. Instead, he came up behind her, put a knife to her

throat and ordered her to undress, threatening to kill her children unless she


Defendant raped Strain at knifepoint. During the rape he struck her face

with the blunt end of the knife, fracturing her orbital bone. Later, with her eight-

month-old baby in the room, he tied her arms and sodomized her. Defendant told

her his wife had just left him and he did not know why he was “doing” this but he

had “already started” and she could “identify” him. The dog outside started

barking, and defendant told her to bring the dog inside the house, threatening to

kill her children if she did not return. Strain went outside and ran to a neighbor’s

house. The neighbor grabbed his gun and encountered defendant as he was

coming out of the Strains’ house. The neighbor held defendant at gunpoint until

the sheriff arrived. Upon being arrested, defendant told police, “I don’t know why

I did it,” and “My wife just left me.” Later, defendant told a detective that “I


didn’t know what I was doing at the time. Everything was blanked out for me and

I just wasn’t myself. I figure to myself[,] under a doctor’s care and supervision

that it would never happen again.” The detective to whom he made these

statements did not observe anything abnormal about defendant’s mental


e. Mary McGovern. Mary McGovern became acquainted with defendant

through her participation in a letter-writing program to prisoners organized by her

prayer group in Zionville, Indiana. She corresponded with defendant who was in

prison for the rape of Marsha Strain. After defendant was released, he invited

McGovern to come to visit him and she eventually agreed. She made it clear to

defendant she was not coming to have sex. On the third day of her visit, defendant

told her that because she was sincere about helping him, he was going to be honest

with her. He then told her that a week before she arrived he had dug a grave for

her, and offered to show her. She declined. He told her that he had planned to kill

her but, because she was so sincere, had decided against going through with his

plan. On the fourth day of her visit, defendant came into her room, woke her up

and asked her to have sex with him. She refused. Eventually, to placate him, she

let him tie her hands and feet with knitting yarn, thinking she could break the

string if necessary. After he tied her up, he left the room and returned with a

straight razor. She thought he was going to kill her. Instead, he shaved her pubic

area. Afterwards, he took a photograph of the area. Then, he put a pillow over her

face. She “played dead” and he stopped and left the room. The next day, on a

pretext that there was an emergency at her daughter’s home, she left.

f. Isobel Pahls/Linda Kimball. In February 1977, defendant met Linda

Kimball and by August they were living together. Kimball gave birth to their

daughter in December 1977. Kimball’s mother, Isobel Pahls, lived nearby. On


the evening of July 6, 1978, Pahls was awakened by defendant who was on top of

her, clad only in undershorts, holding a knife to her throat. He told her he had

come to rape her but did not go through with it because when he looked at her face

“all he could see was Linda’s face.” Pahls managed to escape to a neighbor’s

house. Pahls did not report the incident to the police out of concern for her

daughter. Kimball promised that defendant would obtain treatment at the VA

hospital at Loma Linda.

A few days after the incident, Kimball left defendant and she and their child

moved in with Pahls. On July 16, at about 11:00 a.m., Kimball returned to the

apartment she had shared with defendant to pick up some things for the baby.

Early that afternoon, Kimball’s body was found at the apartment. Her wrists were

bound. She had been beaten, stabbed and strangled with a man’s belt. Her blouse

had been pulled up and her pants and underwear pulled down. Her bra had been

ripped apart. The cause of death was asphyxiation. Defendant was arrested in

Arizona 11 days later. Police found a note in his handwriting that read, “Killed to

date, Linda Kimball, commonlaw wife. I told her she would never raise Meghan

alone or leave me alive. She begged me not to kill her. You screamed but it was

cut short.”

g. Eileen Millsap. After he killed Linda Kimball, but before he was

arrested, defendant assaulted Eileen Millsap at her home in Highland, California.

On the pretext of responding to an advertisement Millsap had put into a local

paper offering a stove for sale, defendant came to her house while she was alone

with her small children. He put a knife to the throat of her three-year-old son and

forced her into the bedroom where he ordered her to undress. With her two

children in the room, he got on top of her and began to choke her. She lost


consciousness. When she woke up, defendant was gone. Her wallet and purse

were missing. Defendant later used one of her credit cards to buy gasoline.

h. Nettie Jablonski. In July 1985, while defendant was incarcerated at the

California Men’s Colony, he attacked his mother while she and his father were on

a 72-hour family visit. Defendant was angry because Carol Spadoni, whom he

had married in 1982, had not come with his parents. He grabbed his mother,

choked her, covered her mouth, and dragged her into the bedroom of the family

visiting trailer. She yelled for help and his father came to his mother’s aid.

i. Fathyma Vann. In April 1991, Fathyma Vann, also known as Fanny

Hansen, was a fellow student with defendant in the automotive course at the

College of the Desert. On Monday, April 22, defendant gave her a ride home from

class. The next day, her body was found off the road in the desert outside of Indio.

The cause of death was a gunshot wound but her body was mutilated. Stab

wounds perforated her neck, abdomen, vagina and rectal area; her ears and nipples

were amputated and there were wounds to her eyes. Abrasions on her back

appeared to state “I love Jesus,” with a heart-shaped incision in place of the word

“love.” The belt found in defendant’s car after he was arrested for the Petersen-

Spadoni murders, on which he had written their names and death dates, also

contained the name “Fathyma N. Hansen, 4-22-91,” and “Palm Desert.” Her

military identification was also found in defendant’s car. On the same tape on

which defendant described the Petersen-Spadoni murders, he also described in

graphic detail his sexual assault upon, and murder and mutilation of, Fathyma


j. Yvette Shelby. On April 25, 1991, while defendant was in flight after the

Vann, Petersen and Spadoni murders, he stopped at a rest stop in Wyoming and

brandished a gun at Yvette Shelby (also known as Yvette Russell) who had pulled


into the rest stop to do some paperwork and let her dog out. Shelby was able to

escape when defendant lost his grip on the gun and dropped it. She drove to the

next truck stop where she called police. Police questioned defendant about the

incident but he claimed the gun, which he carried for his protection, had fallen out

of his car as he was getting out. The officer who questioned defendant accepted

his explanation and let him go. At defendant’s trial, however, the prosecution

played the tape that was found in defendant’s car in which he described seeing a

woman and a child at a rest stop — the woman was apparently not Shelby, who

did not have a child with her — and expressed his desire to rape and kill the

woman. The purpose of playing the tape was to show defendant’s criminal intent

when he pointed the gun at Shelby.

k. Margie Rogers. Defendant’s tape also narrated how he had shot an

elderly woman working at a truck stop and then opened her blouse, pulled off her

bra and fondled her breasts. The body of the victim, Margie Rogers, was found on

April 27, at the convenience store/gas station where she worked. Her shirt had

been opened and her brassiere was lifted over her breasts. She had been shot twice

in the head.

2. Defense Evidence

Defendant’s sister, Patsy, testified that their father was an abusive alcoholic

who beat his wife and children. He called his wife and daughter “whores,” and

grabbed his daughters’ breasts and those of their girlfriends. When he and his

wife had sex, he would beat her or try to strangle or suffocate her. Defendant was

the most frequently beaten child because he would try to come between his father

and his mother to prevent him from hitting her. Defendant and his siblings often

ran away and hid from their father; their mother would signal them when it was


safe to return. The violence within the family was an almost daily occurrence and

the police frequently were called to the house, but refused to intercede.

Defendant’s father was also cruel to animals. He always carried a gun with him

that he would brandish at his children as he scolded them for their worthlessness,

telling them they had not deserved to be born and did not deserve to live.

According to Patsy, defendant was sexually molested by a neighbor when

he was four or five years old. The same neighbor molested her. She said two

neighborhood children, Dale and Janice Rearick, were present when the

molestation occurred. Patsy described defendant as quiet. She and another

brother, Albert, called defendant “Goody-Two-Shoes.” However, defendant

would take out his aggression on Patsy and Albert, and hit them when their parents

were gone. Defendant would get upset when his parents were gone for a long

time. He told Patsy, “They never loved me. They always hate me.” He “cried

about everything.”

Defendant presented other witnesses who had known him and his family

when he was a child. The Jablonskis were among the poorest of the poor in a

lower middle class and poor neighborhood. The witnesses generally corroborated

the portrait of defendant’s father as a brutal, gun-carrying alcoholic who regularly

abused his wife and his children and was cruel to animals. One witness testified

that defendant’s father was the meanest man he ever knew. Another witness

testified that, when he was a child, defendant’s father had run over his puppy and

did not even bother to stop. He slaughtered chickens in a “sadistic” manner and

once killed the family pet, a pig, for dinner. He also shot neighbors’ cats if they

strayed onto his property. A former daughter-in-law testified that defendant’s

father grabbed her month-old infant from her and fed the baby hot sauce.

Witnesses remembered the Jablonksi children and sometimes their mother hiding


from their father. Defendant would try to protect his mother and he would be

beaten for it.

The defense witnesses also testified that as a child and teenager, defendant

was a nice person who was quiet and kept to himself. The witnesses testified that

defendant was a very anxious child. One witness testified he was “scared all the

time.” Other witnesses testified that he was a thin, pale, ill-looking and lonely

child who cried all the time. However, one witness testified that he saw defendant

and his sister Patsy have consensual sex on two occasions when they were

teenagers. The two bragged about it and thought it was “funny.”

In high school, defendant belonged to the cadet corps and in 1966 he

enlisted in the army. His military records are unclear as to whether he served in

Vietnam, but he claimed he had, and his discharge papers listed the Vietnam

Service Medal. According to his first wife, Alice McGowan, when defendant

returned from overseas to Fort Bliss, Texas, he was a changed man. Before, he

had been a quiet person, but now he was “really mean” to McGowan and she

“wasn’t sure all the time whether he was really with it or not.” During his

relationship with Jane Sanders, defendant was seeing VA psychiatrists and taking

daily medication. However, he exhibited odd behavior, including forgetting his

children at a shopping mall. Isobel Pahls testified that, after defendant attacked

her, she called the Loma Linda VA and spoke to Dr. Kopiloff and reported the

attack. Kopiloff told her not to call the police and assured her that the VA would

take care of defendant. She testified that her daughter, Linda Kimball, was upset

because, on the Monday after the attack on Pahls, she had driven defendant to the

Loma Linda VA hospital and hospital personnel had declined to hospitalize him.

Two days before he killed her, Kimball took defendant to a second appointment at

the VA hospital and hospital personnel again declined to hospitalize him. After


Kimball’s death, Pahls obtained custody of the child Kimball and defendant had

had together. Defendant’s parents also sought custody but, according to Pahls, the

judge hearing the case said he would not send a child to the environment from

which defendant had come.

In connection with his release on parole in September 1990, the Department

of Corrections prepared a release program study report in which it was noted that

defendant was a “Category J” psychiatric inmate who received treatment,

including medication. The report noted that a staff psychologist was concerned

about defendant’s parole and warned that, although in remission, he could become

actively psychotic at any time. His original parole plan required him to seek

mental health counseling. Ultimately, defendant sought such counseling from the

Loma Linda VA hospital.

On November 30, 1990, Dr. Sylvia Winters, a psychiatrist at the VA

hospital conducted an intake examination of defendant. He told her that in the

previous month and a half he had been hearing voices and seeing faces just as he

had before he killed Linda Kimball. He reported that he had stopped taking the

medication prescribed for him in prison. He complained that helicopters flying

above the motel where he lived were making him nervous. He also told her he

was having nightmares about a friend who had died in Vietnam in the crash of a

helicopter on which defendant was a door gunner. He blamed having a flashback

to his service in Vietnam for his attack on his mother at the California Men’s

Colony. He also blamed his experience in Vietnam for his murder of Linda

Kimball, telling Dr. Winters that he “thought [his] wife was Vietnamese when [he]

strangled her.”

Dr. Winters was aware of the circumstances surrounding defendant’s

killing of Linda Kimball. She knew that, two days prior to the murder, defendant


had been evaluated at the Loma Linda VA and found to be neither homicidal nor

suicidal. Nonetheless, she accepted his assurance that he did not feel like hurting

anyone and would inform his parole officer if he did. She tentatively diagnosed

defendant as schizophrenic and made an additional, provisional diagnosis of

posttraumatic stress disorder. She prescribed medications for him and referred

him to a special posttraumatic stress disorder team at the hospital for combat

veterans. She advised Nancy Whitney, a clinical social worker attached to the

posttraumatic stress disorder team, that she might take some precaution for her

security when defendant arrived for his appointment. She also later wrote his

parole officer and told him to be sure defendant did not sleep in the same room

with others because of the possibility of Vietnam flashback. Whitney saw

defendant for the next four months every two to three weeks. Her working

diagnosis was posttraumatic stress syndrome. When she last saw him on April 4,

1991, he complained about an increase in his nightmares. A later search of his

apartment revealed medicine bottles full of psychiatric medication, indicating that

defendant was not properly taking his medication.

Rosser Donley, a classmate of defendant and Fathyma Vann, testified that

on Monday, April 22, he and defendant were supposed to watch a videotape on

alternators and generators after class ended that evening. The tape machine was

not working, however, and defendant drove Donley to a restaurant, dropping him

off at about 7:30 p.m. Donely testified that had the machine not broken down, he

would have been in the car with defendant and Vann. He opined, therefore, that

defendant did not plan to murder Vann.

Alex Martinez, who had been an inmate with defendant at San Quentin,

testified that when he and another inmate found two homemade prison knives in

the chapel they took them to defendant, who worked as a clerk to the chaplain.


Martinez and the other inmate had hesitated in turning in the knives because they

knew that doing so might invite retaliation. Defendant, however, immediately and

without hesitation turned them over to the chaplain.

3. Prosecution Rebuttal

Janice Rearick had grown up in defendant’s neighborhood and knew his

family. She had never seen defendant’s father beat defendant or his sister, Patsy,

although she heard screaming coming from the Jablonski house on occasion. She

testified further that Harold Boies, whom Patsy said had molested defendant, did

not have a reputation as a child molester and, contrary to Patsy’s testimony, she

had not witnessed the incident of molestation described by her.

Albert Jablonski, defendant’s younger brother, testified that defendant’s

father did not abuse him or defendant although he did use a belt on him as

punishment. His father drank beer and was abusive toward his mother. Albert

knew Harold Boies and testified that Boies never tried to molest him nor had he

heard that Boies had tried to molest defendant.

Janet Flenniken and her husband managed the hotel where defendant lived

in the spring of 1991. Defendant acted like a normal person and never showed

signs of being mentally ill. In March 1991, he said he had plans to move “up

north.” He told Flenniken he was going to get his wife to write a “lying letter”

saying she would move with him to Sacramento and he would then start a new


Dr. Charles Sprague, a psychiatrist at the Loma Linda VA hospital, met

with defendant in February 1991 for a medication check. Defendant said his mood

was “okay,” and Sprague’s observations were consistent with this self-description.

Defendant told Sprague he was not experiencing symptoms consistent with


posttraumatic stress syndrome. He denied wanting to hurt anyone and reported no

problems with anger or irritability. He claimed he was taking his medication as

prescribed. Dr. Sprague had read Dr. Winters’s report and had a “higher level of

suspicion” than he ordinarily would have had in assessing defendant’s

dangerousness. Dr. Sprague looked for anything that might call for involuntary

commitment, but found nothing to justify such action.


A. Pretrial Issues

1. Presence of Unauthorized Individuals at Grand Jury Proceedings

Present at some part of the grand jury proceedings that returned the

indictment against defendant were several deputy district attorneys who were

apparently observing the proceeding for training purposes. Subsequently,

defendant moved to dismiss the indictment under section 995 alleging, as one

ground of the motion, that the presence of these prosecutors violated section 939.

Section 939 provides in pertinent part: “No person other than those

specified in Article 3 (commencing with Section 934), and in Sections 939.1,

939.11, and 939.21, and the officer having custody of a prisoner witness while the

prisoner is testifying, is permitted to be present during the criminal sessions of the

grand jury except the members and witnesses actually under examination.”

Although the district attorney is allowed to be present at grand jury proceedings to

serve particular functions in aid of the proceedings (§ 935), the trial court agreed

with defendant that the presence of deputy district attorneys who are not fulfilling

this function was a violation of section 939. Nonetheless, the trial court concluded

that defendant had failed to establish prejudice arising from the violation and

dismissal of the indictment was not required.


On appeal, defendant contends the violation of section 939 amounted to a

violation of his state and federal due process rights as well as the requirement in

article I, section 14 of the state Constitution that felonies be prosecuted either by

indictment or information and the Eighth Amendment’s requirement of heightened

scrutiny in capital cases. He further asserts that these violations constituted a

structural error in the grand jury proceedings that requires reversal without

reference to prejudice. We reject the argument.

Although section 939 does not preclude the presence of deputy district

attorneys actively involved in assisting the district attorney in fulfilling his or her

statutory function in grand jury proceedings (see Stern v. Superior Court (1947)

78 Cal.App.2d 9, 13), in this case, evidently, the deputy district attorneys were not

rendering such assistance. We assume, therefore, that the trial court correctly

concluded their presence was a technical violation of section 939. (See People v.

Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 415 [“Apart from

necessary and authorized appearances, as specified by statute, no person is

permitted to be present during criminal sessions of the grand jury except the

members of the jury and witnesses actually under examination”].) Where, as here,

irregularities in the grand jury proceedings are challenged on appeal, a showing of

actual prejudice is required. (People v. Towler (1982) 31 Cal.3d 105, 123.) Thus,

defendant must show the “alleged errors before the grand jury deprived him of a

fair trial or otherwise resulted in any actual prejudice relating to his conviction”

before reversal on the ground of such irregularity is warranted. (Ibid.)

Defendant asserts that the unauthorized presence of the deputy district

attorneys had “an inherent tendency to be coercive and to compromise the grand

jury’s independence.” This assertion, unsupported by any reference to the record,

is purely speculative and fails to comport with Towler’s actual prejudice


requirement. Undeterred, defendant argues that he is not required to show

prejudice. In support of this claim, defendant relies on Vasquez v. Hillery (1986)
474 U.S. 254.

Under federal law, as under state law, irregularities in grand jury

proceedings are generally subject to analysis for prejudice. (Bank of Nova Scotia

v. United States (1988) 487 U.S. 250, 254-257.) Nonetheless, the Supreme Court

has acknowledged that there are “isolated exceptions to the harmless error rule”

involving cases where the error is of constitutional magnitude and “the structural

protections of the grand jury have been so compromised as to render the

proceedings fundamentally unfair, allowing the presumption of prejudice.” (Id. at

pp. 256-257.) In Vasquez, racial discrimination in the composition of the jury that

indicted the defendant led the court to reverse his conviction without reference to

prejudice. (Vasquez v. Hillery, supra, 474 U.S. at pp. 263-264.) As the court

subsequently explained, Vasquez exemplified the rare case where “[t]he nature of

the violation allowed a presumption that the defendant was prejudiced, and any

inquiry into harmless error would have required unguided speculation.” (Bank of

Nova Scotia v. United States, supra, 487 U.S. at p. 257; United States v. Mechanik

(1986) 475 U.S. 66, 70-71, fn. 1 [noting that the grounds for reversal in Vasquez

“have little force outside the context of racial discrimination in the composition of

the grand jury”].)

Vasquez is inapposite. The presence of unauthorized individuals at grand

jury proceedings does not have a structural impact on those proceedings

comparable to that of discriminatory selection of grand jurors, nor is such error

insusceptible of review for actual prejudice such that prejudice must be presumed.

(Cf. Bank of Nova Scotia v. United States, supra, 487 U.S. at pp. 257-260

[unauthorized presence of two IRS agents at grand jury proceeding was not


prejudicial and did not warrant dismissal of indictment]; United States v. Plesinski

(9th Cir. 1990) 912 F.2d 1033, 1038-1039 [presence of unauthorized special

prosecutor was not prejudicial].) Accordingly, we reject defendant’s claim that

violation of section 939 resulted in any constitutional error, much less that

automatic reversal of his conviction is warranted.

2. Competency Trial Issues

a. Alleged Violation of Fifth and Sixth Amendment Rights by Requiring

Defendant to Submit to Competency Examinations

Prior to trial, defense counsel questioned defendant’s competence to stand

trial. The trial court, in accordance with section 1368, suspended criminal

proceedings and appointed Dr. Alfred Fricke, a psychologist, and Dr. Jeffrey

Weiner, a psychiatrist — Fricke to assess defendant’s competence and Weiner to

assess the effects on defendant of the psychotropic medications he was taking.3

Over defendant’s objections, the trial court also ordered him to submit to a

competency examination by Dr. James Missett, who was retained by the


A total of four experts testified at defendant’s competency trial. The

defense expert, Dr. Kormos, testified that defendant was suffering from

schizophrenia and, as a result, was so impaired he was unable to assist rationally in

his own defense. Kormos opined that defendant was not malingering. The two

court-appointed experts, Drs. Fricke and Weiner, each testified that while they

3 Section 1368, subdivision (c) provides that “when an order for a hearing into the
present mental competence of the defendant has been issued, all proceedings in the
criminal prosecution shall be suspended until the question of the present mental
competence of the defendant has been determined.”


initially had believed that defendant was not competent to stand trial based on

their first examinations of him, subsequent examinations changed their

assessment. Dr. Fricke testified that, after his second examination of defendant, he

concluded that defendant was competent to stand trial and that “without a doubt”

defendant was malingering. Dr. Weiner testified that, after his subsequent

examination of defendant, there was insufficient data as to whether defendant was

competent. Weiner testified further that he had observed evidence that made him

“strongly suspicious” that defendant was malingering. Finally, the prosecution’s

expert, Dr. Missett, testified that defendant was competent to stand trial and was

malingering. The jury found defendant competent.

Defendant contends that the trial court violated his Fifth Amendment right

against self-incrimination and his Sixth Amendment right to assistance of counsel

by requiring him to submit to competency examinations by the two

court-appointed evaluators and by an evaluator designated by the prosecution.

Alternatively, he contends that these rights were violated by requiring him to

submit to examination by the prosecution’s evaluator alone.

In general, the Fifth Amendment privilege against self-incrimination

applies to competency examinations. (Estelle v. Smith (1981) 451 U.S. 454.) In

California, the “protection . . . afforded by application of the Fifth Amendment is

in fact provided by a judicially declared rule of immunity applicable to all persons

whose competency to stand trial is determined at a section 1368 hearing.” (Baqleh

v. Superior Court (2002) 100 Cal.App.4th 478, 496.)

This rule of immunity was first declared in Tarantino v. Superior Court

(1975) 48 Cal.App.3d 465. In that case, the Court of Appeal concluded that a

psychiatrist appointed to examine a defendant for competency could not testify

later on the question of defendant’s sanity. The court reasoned that, because a


defendant may not invoke his right against compelled self-incrimination in a

competency examination, “neither the statements of [the defendant] to the

psychiatrists appointed under section 1369 nor the fruits of such statements may

be used in trial of the issue of [the defendant’s] guilt, under either the plea of not

guilty or that of not guilty by reason of insanity.” (Id. at p. 470.) We adopted the

judicially declared rule of immunity in People v. Arcega (1982) 32 Cal.3d 504,

522 (see People v. Weaver (2001) 26 Cal.4th 876, 959-960 [noting the rule in


Defendant argues that the immunity granted in Arcega inadequately

protects a defendant’s Fifth Amendment interest against self-incrimination

because it does not prevent “nonevidentiary derivative uses” of statements

obtained from a defendant during the competency examination. Such derivative

uses, he postulates, might include “gain[ing] insight into the relationship between

the defendant and his attorneys, or insight into tactical decisions or considerations

by the defense, or a myriad of other articulable and inarticulable matters that . . .

could be helpful to the opponent in dictating his choice of actions or tactics.”

We reject defendant’s argument for two reasons. First, the premise of

defendant’s claim — that the immunity conferred in Arcega is not coextensive

with Fifth Amendment protections — is wrong. From its inception, this immunity

has applied to a defendant’s statements to the competency evaluator and to any

fruits of the mental competency examination. (People v. Weaver, supra, 26

Cal.4th at pp. 959-960; People v. Arcega, supra, 32 Cal.3d at p. 518 [“There is a

rule of immunity for all statements and fruits of a mental competency examination

which prevents their use at the guilt trial”]; Tarantino v. Superior Court, supra, 48

Cal.App.3d at p. 470.) “The judicially declared rule supplants the Fifth

Amendment, because the scope of that rule is coextensive with the scope of the


Fifth Amendment privilege.” (Baqleh v. Superior Court, supra, 100 Cal.App.4th

at p. 501.) Thus, the immunity granted in Arcega fully protects a defendant

against any nonevidentiary uses of statements obtained from the defendant during

the competency hearing to the same extent he or she is protected by the privilege

against self-incrimination.

Second, defendant fails to demonstrate that, in this case, the immunity

described in Arcega failed to fully protect his Fifth Amendment interests. His

assertion that the prosecution may have gained some nonevidentiary insight into

defense tactics via the competency examinations conducted by the court-appointed

experts or the prosecution’s expert is unsupported by citation to the record and

exists only in the realm of speculation. Indeed, none of the experts who testified

at the competency trial testified at any other phase of the trial, nor does it appear

that their reports or observations were used by the prosecution at trial.4

Defendant’s Sixth Amendment claim is equally unpersuasive.

Preliminarily, we agree that “[t]he right to counsel clearly applies to the type of

competency proceedings with which we are here concerned.” (Baqleh v. Superior

Court, supra, 100 Cal.App.4th at p. 503.) However, in this case, the record

reveals that defendant was fully represented by counsel during the competency

proceedings from the time that defense counsel first raised the issue of defendant’s

competency through the jury trial at which defendant was ultimately found to be

competent. Indeed, as defendant’s appellate counsel acknowledged during

4 This case does not present, nor do we consider, the question of whether a
defendant’s statements at a competency evaluation can be used for impeachment if
the defendant subsequently testifies. (Compare People v. Stanfill (1986) 184
Cal.App.3d 577, 580-582, with People v. Harris (1987) 192 Cal.App.3d 943, 949-


argument, defense counsel was even given the opportunity to be present at the

examination of defendant by Dr. Missett, the prosecution’s expert, but counsel

declined. Moreover, although defendant adverts to a right to refuse to submit to a

competency evaluation as part of his Sixth Amendment right to effective

assistance of counsel, there is no indication on the record that he did so, even with

respect to Dr. Missett. On this record, therefore, we reject defendant’s argument

that he was denied his Sixth Amendment right to effective assistance of counsel to

the extent that his claim is based on an assertion that he was denied counsel. Thus,

this case is easily distinguishable from those decisions cited by defendant in which

the reviewing court found a Sixth Amendment violation where, in essence, the

defendants were allowed to represent themselves despite doubts regarding their

competency. (United States v. Klat (D.C. Cir. 1998) 156 F.3d 1258; Appel v.

Horn (3d Cir. 2001) 250 F.3d 203.)

Defendant fares no better to the extent that his Sixth Amendment claim is

based on the same ground as his Fifth Amendment claim — that the immunity

described in Arcega was inadequate to protect against nonevidentiary uses of the

competency evaluation by the prosecution. Defendant asserts that the possibility

the prosecution may have gained some nonevidentiary advantage from its

examination of defendant constituted an improper intrusion into the attorney-client

relationship in violation of the Sixth Amendment. (People v. Zapien (1993) 4

Cal.4th 929, 1012 [“A defendant’s right to the assistance of counsel free from

unreasonable government interference is protected by the Sixth Amendment”].)

The predicates of this argument are that the immunity described in Arcega fails to

protect a defendant against nonevidentiary uses of statements obtained during the

competency evaluation, and that in this case the prosecution gained such

advantage and exploited it. As we have already concluded, in rejecting


defendant’s Fifth Amendment argument, both predicates are false. For these

reasons, then, we also reject defendant’s Sixth Amendment claim.

Finally, defendant contends that, even if his Fifth and Sixth Amendment

rights were not violated by compelled competency evaluations by the court-

appointed experts, Drs. Fricke and Weiner, then, at minimum, these constitutional

protections prohibited the competency evaluation by the prosecution’s expert, Dr.

Missett. We disagree. The constitutional interests are the same, whether the

competency evaluation is undertaken by court-appointed experts or an expert

retained by the prosecution and those interests are adequately protected in either

case by the immunity granted by Arcega. (Baqleh v. Superior Court, supra, 100

Cal.App.4th at pp. 502-503; but see Bishop v. Caudill (Ky. 2003) 118 S.W.3d 159,

163-164.) Here, moreover, Dr. Missett did not testify at either phase of

defendant’s trial nor does defendant demonstrate that the prosecution made any

use of Dr. Missett’s testimony, report, or observations outside of the competency


b. Admission of the Kansas Tape

Defendant contends that the trial court abused its discretion under Evidence

Code section 352 and violated his due process rights by admitting at the

competency hearing, over his objection, the tape recording he made in which he

described, in graphic and brutal detail, the string of murders he committed

between April 22 and April 27, 1991. The tape had been seized upon defendant’s

arrest in Kansas.

Prior to his competency hearing, the defense moved to exclude the tape as

more prejudicial than probative. (Evid. Code, § 352.) In opposition, the

prosecution argued that the tape was relevant to its theory that defendant was


malingering to avoid punishment for his crimes. As the prosecutor explained, the

portrait of defendant painted for purposes of the competency hearing was that he

“speaks gibberish, . . . cannot remember the names of three simple objects. That

his memory is barely intact. In other words, an extremely low level of

functioning.” The tape, however, in the prosecutor’s estimation, supported the

prosecution’s theory that defendant was feigning his mental illness to avoid the

death penalty because “it demonstrates that this defendant has a remarkable

memory for detail, remembering things that occurred over the last four days in

chronological sequence, in rich detail. [¶] So it shows no memory problems. It

shows a person who’s not stumbling over his words. Who is not, as Dr. Fricke in

his report says, stumbling and barely able to concentrate. It shows a person whose

concentration is good. [¶] For those reasons I think the jury is entitled to hear it

so they can compare that with the level of functioning that he experiences now.”

The trial court agreed that the tape was “highly probative and directly relevant to

the issue of whether the defendant is feigning incompetence now to avoid a trial

and possible punishment.” Accordingly, the court admitted the tape.

“[A]n 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 relative probativeness and prejudice of the evidence in question [citations].

Evidence is substantially more prejudicial than probative (see Evid. Code, § 352)

if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or

the reliability of the outcome’ (People v. Alvarez [(1996)] 14 Cal.4th [155], 204,

fn. 14).” (People v. Waidla (2000) 22 Cal.4th 690, 724.) “The admission of

relevant evidence will not offend due process unless the evidence is so prejudicial

as to render the defendant’s trial fundamentally unfair.” (People v. Falsetta

(1999) 21 Cal.4th 903, 913.) We conclude that the trial court did not abuse its


discretion by admitting the tape nor did the admission of the tape violate due


The question in a competency proceeding is whether, “as a result of mental

disorder or developmental disability, the defendant is unable to understand the

nature of the criminal proceedings or to assist counsel in the conduct of a defense

in a rational manner.” (§ 1367, subd. (a).) Defendant acknowledges that the

Kansas tape, even though it was made two years before his competency trial, to

the extent it established a rational capacity to recall and communicate, had some

relevance on the issue of his present competence to stand trial. (Cf. People v.

Samuel (1981) 29 Cal.3d 489, 504 [defendant’s confession, obtained one year

before competency proceeding, had some probative value in determining his

present competency but, in relation to other evidence, was not “highly probative”

and reversal of competency finding was required].)

Nonetheless, he maintains the evidence should have been excluded because

its probative value was weak in comparison with its potential to prejudice the jury

against him. In this connection, he argues that the tape was cumulative of other,

far less sensational evidence that would also have established his capacity for

rational behavior. Specifically, he points out that Dr. Missett’s report listed a

number of reasons for his conclusion that defendant was competent to stand trial,

including past evidence of rational behavior that did not involve criminal conduct.

In addition, defendant notes, the trial court was aware of the proposed testimony

of percipient witnesses to defendant’s behavior in the period between his release

from prison and commission of the crimes which would have made the same point

regarding defendant’s ability to function as the prosecution sought to make with

the tape recording.


We do not agree that the tape recording was cumulative to the testimony of

other witnesses regarding defendant’s capacity to act rationally. The tape, in

defendant’s own voice, sequentially recounting the circumstances of his crimes in

great detail when he had no motive to feign mental illness, was not only highly

probative of whether he was malingering but also uniquely probative in a way that

neither Dr. Missett’s report nor the testimony of other witnesses could be. We

conclude, therefore, that the trial court did not abuse its discretion by admitting the

tape recording.

Defendant argues, however, that the effect of the evidence was to invoke an

emotional bias against him on the part of the jury that impelled the jury to punish

defendant, presumably by finding him competent. As the Attorney General points

out, the jury was instructed that its sole function was to determine the defendant’s

competence to stand trial, not whether he was guilty of a crime; apprised that it

was not to consider the consequences of a finding either of competence or

incompetence in rendering its verdict; and admonished that it was not to be

influenced by pity for the defendant or prejudice against him, nor by sentiment,

conjecture, sympathy, passion, prejudice, public feeling or public opinion.

Defendant asks us to presume that the tape recording evidence rendered the jury

incapable of following these instructions but, absent some indication in the record,

we must presume that jury understood and applied these instructions. (People v.

Frank (1990) 51 Cal.3d 718, 728.)

In short, we conclude the trial court did not abuse its discretion under

Evidence Code section 352. We conclude further that the admission of the

evidence did not violate defendant’s due process by rendering the trial

fundamentally unfair. (People v. Falsetta, supra, 21 Cal.4th at p. 913.)


c. Failure to Discharge Juror

Defendant contends that the trial court abused its discretion by failing to

discharge a juror who informed the court that she had received a telephone call

from someone whose voice she did not recognize, but who identified himself as

“Carl.” The juror explained that the only reason she brought the matter to the

court’s attention was her concern about whether defendant — whose middle name

is Carl — had access to her telephone number. Upon being assured by the court

that defendant did not have such access, she agreed that the call was likely a

“crank call.” When asked by the court whether she was confident she could be a

fair and impartial juror, the juror answered affirmatively. After the juror left the

courtroom, the defense requested that she be discharged. The request was denied.

Section 1089 provides in part: “If at any time, whether before or after the

final submission of the case to the jury, a juror dies or becomes ill, or upon other

good cause shown to the court is found to be unable to perform his or her duty, . . .

the court may order the juror to be discharged . . . .” “Before an appellate court

will find error in failing to excuse a seated juror, the juror’s inability to perform a

juror’s functions must be shown by the record to be a ‘demonstrable reality.’ The

court will not presume bias, and will uphold the trial court’s exercise of discretion

on whether a seated juror should be discharged for good cause under section 1089

if supported by substantial evidence. [Citation.]” (People v. Holt (1997) 15

Cal.4th 619, 659; People v. Farnam (2002) 28 Cal.4th 107, 141.) The record

before us does not show that the juror was unable to fulfill her functions as a

demonstrable reality. Accordingly, we find no abuse of discretion in the trial

court’s decision to retain the juror.


d. Competency Standard

Defendant contends that California’s standard for competence, as embodied

by CALJIC No. 4.10, fails to meet the standard articulated for federal due process

purposes in Dusky v. United States (1960) 362 U.S. 402. In Dusky, the court

stated that the test of a defendant’s competency to stand trial is whether the

defendant “has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding and whether he has a rational as well

as a factual understanding of the proceedings against him.” (Ibid.) Consistent

with CALJIC No. 4.10, the jury was instructed that “a person charged with a

criminal offense is deemed mentally competent to be tried for the crime charged

against him, if [¶] 1. He is capable of understanding the nature and purpose of the

proceedings against him; [¶] 2. He comprehends his own status and condition in

reference to such proceedings; and [¶] 3. He is able to assist his attorney in

conducting his defense in a rational manner.”

Defendant maintains that a person who “is able to assist an attorney in

conducting his defense in a rational manner” does not necessarily have “sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding” as required by Dusky. He asserts that, while “assisting” “demands

only the minimal passive rationality required to answer an attorney’s question” as

to some aspect of the case, “consulting” denotes “an active participation and

exchange between attorney and client rather than the passive assent of the client to

the attorney’s promptings.” Thus, he argues that the capacity to consult

“rationally imports a higher level of cognition and judgment” than that required to


We have previously observed that the language of section 1367, from

which CALJIC No. 4.10 is drawn, “does not match, word for word, that of Dusky.


But as the Court of Appeal noted in James H. v. Superior Court (1978) 77

Cal.App.3d 169, 177 [143 Cal.Rptr. 398], ‘To anyone but a hairsplitting

semanticist, the two tests are identical.’” (People v. Stanley (1995) 10 Cal.4th

764, 816; accord, People v. Dunkle (2005) 36 Cal.4th 861, 893.) Indeed, as the

Attorney General points out, the United States Supreme Court has itself used a

formulation similar to California’s to describe the standard of competency.

(Godinez v. Moran (1993) 509 U.S. 389, 402 [“Requiring that a criminal

defendant be competent has a modest aim: It seeks to ensure that he has the

capacity to understand the proceedings and to assist counsel” (italics added)].)

We reject defendant’s claim that California’s formulation of the competency

standard fails to comport with federal due process requirements.

e. Failure-to-Recall Instruction

At defendant’s competency trial, all the experts agreed that defendant

appeared to suffer from impaired memory. Therefore, at the prosecution’s request,

the jury was instructed: “The inability to recall facts or information does not in

and of itself render a defendant incompetent to stand trial; however, it is a factor to

be considered in determining whether a defendant is incompetent to stand trial.”

Defendant contends the instruction was erroneous because it might have led the

jury to disregard evidence of defendant’s inability to recollect as proof that he was

incompetent. We think not.

The source of the instruction was People v. Amador (1988) 200 Cal.App.3d

1449. In Amador, the court expressed doubts about defendant’s competence and

appointed a psychologist to conduct a competency evaluation. The psychologist

opined that defendant was incompetent because he suffered permanent amnesia

regarding the events surrounding the offense. The trial court concluded that


amnesia did not, in and of itself, render defendant legally incompetent to stand

trial. On appeal, the Court of Appeal agreed. “The amnesic defendant is no worse

off than the defendant who cannot remember where he was on a particular day

because of the passage of time, or because he was drunk, drugged, unconscious or

asleep at the time of the crime. Moreover, amnesia does not inhibit discussion

between attorney and client as to tactical decisions concerning the trial. [Citation.]

[¶] Amnesia as to the alleged offense does not totally incapacitate the defense and

a defendant is still free to assist counsel in numerous other ways.” (Id. at p. 1454.)

Regarding the propriety of the instruction, the Attorney General argues that

if, in Amador, complete and permanent amnesia was found insufficient, by itself,

to render defendant incompetent to stand trial, a fortiori the mere inability to recall

would not justify a finding of incompetence. Defendant contends that the

instruction was incorrect because it may have led the jury to disregard evidence of

failure to recall as proof of a mental disorder, like schizophrenia or posttraumatic

stress disorder, that did render him incompetent.

To the extent that defendant is arguing that memory impairment, in and of

itself, establishes a mental disorder that renders a defendant incompetent, we agree

with Amador that such impairment does not, standing alone, establish

incompetency. To the extent defendant is arguing that the instruction was

inadequate because it did not specifically instruct the jury that impaired memory

function could be evidence of a mental disorder that established incompetency, it

was incumbent upon defendant to have requested elaboration or clarification of the

instruction. (People v. Dunkle, supra, 36 Cal.4th at p. 894; People v. Coffman and

Marlow (2004) 34 Cal.4th 1, 122.)

In any event, there is no reasonable likelihood that a jury would have given

the instruction the gloss placed on it by defendant. (Estelle v. McGuire (1991) 502


U.S. 62, 72.) The instruction did not tell the jury that the inability to recall cannot

be considered in assessing competency, but only that it is not dispositive; indeed,

the instruction states that the inability to recall “is a factor to be considered in

determining whether a defendant is incompetent to stand trial.”

f. Cumulative Error

Defendant contends that the cumulative effect of errors at his competency

trial requires reversal. However, because we have concluded that defendant failed

to show any error at his competency trial, necessarily he cannot show cumulative

prejudice arising from such error.

B. Guilt Phase Issues

1. Admission of Defendant’s Pretrial Statement

After his arrest, the police obtained a statement from defendant in

intentional violation of his Miranda rights to use as impeachment evidence should

he testify. (Miranda v. Arizona (1966) 384 U.S. 436; see Harris v. New York

(1971) 401 U.S. 222; People v. Peevy (1998) 17 Cal.4th 1184.) Defendant

contends that because the statement was involuntary, it should have been excluded

for any purpose. Since defendant elected not to testify, we first address the

question of whether he has forfeited this claim. Assuming he did not, we conclude

that, under the governing standard, the statement was not involuntary and

exclusion was not required. Alternatively, we conclude that any error was

harmless beyond a reasonable doubt.

a. Background

Defendant was arrested in Kansas. On May 1, 1991, he was interrogated by

Detective Barfknecht of the Riverside Sheriff’s Department and Sergeant Haseleu

of the Burlingame Police Department. Before beginning the interrogation, the


officers agreed they would continue to question defendant even if he invoked his

Miranda rights in order to obtain impeachment evidence should he testify, and to

obtain investigative leads. The interrogation began at about 10:30 a.m. and lasted

until about 2:30 p.m., including a refreshment break and a lunch break.

During the course of the interrogation, defendant invoked his right to

counsel 11 times. Defendant’s first four invocations of his right to counsel came

at the beginning of the interrogation. The first time he invoked his right to counsel

was in response to Haseleu’s statement, “We just want to go with you go with

flow [sic] and kinda let you tell us, you know, what happened in the last ten days

or so, you know.” Defendant responded, “I won’t say anything until I see my

lawyer.” Haseleu responded, “that’s obviously your right” but suggested that

defendant “get some of this off your chest.” Defendant replied, “Uh, I want to talk

to him before I say anything.” Haseleu then asked defendant if he knew Fathyma

Vann and defendant declined to answer. When Barfknecht asked him if he took

classes with her, defendant replied, “I said, I ain’t gonna say anything until I talk

to a lawyer.” Haseleu replied, “Okay. We . . . understand that. Look you know

. . . don’t you feel that you could get this off your chest?” Defendant replied, “Not

until I talk completely to a lawyer [to] see what he has to say.”

Defendant next invoked his right to counsel when, after discussing his car

trip from California to Kansas, Barfknecht again suggested he might want to “get

it off your chest.” Defendant responded, “I’d rather not say anything until I talk to

a lawyer.” Haseleu replied, “I understand that. You know, you’ve already said

that on . . . the tape, and it’s on there . . . We’re not gonna try and do anything

illegal to you, you know. I just you know, I would think if I was in your position

I’d certainly like to get some of this stuff off my chest, so that I’d [feel] a little bit

better anyway. . . . Maybe we can help you out . . . I got some people that would


like to talk to you about some of your problems . . . .” Defendant replied, “I’d

rather wait until I see an attorney . . . .” Haseleu told him, “Well, let me tell you

my problem . . . okay? I’m . . . [from] Burlingame, okay? And uh, I need to

know, you know, when the last time (inaudible) was. And if you know a few

things that’s gonna help me out . . . And I think that you owe it to the people at

least let the other people know what happened there at the relatives. Don’t you

feel that way?” Defendant replied, “Like I said, I’d rather just talk to a lawyer and

see what he has to say before I say anything.”

The next two times defendant invoked his right to counsel were in response

to attempts by the officers to elicit from him a description of the pressure

defendant said had been building within him while he was living in Indio. To the

officers’ questions, defendant said, “I’d rather not until I talk to my lawyer about

it” and “I’d rather talk to somebody. My lawyer before I say anything else on

that.” After the second try, Haseleu stated, “You know how this thing works . . .

You know that we can’t use any of this stuff against you in a court of law. This

tape will never be heard by anybody except us. Matter of fact I’ll turn the damn

thing off if you want. I want to know what happened in my town. The relatives of

these people want to know what happened in my town . . . . I’d sure appreciate it if

you’d help me out a little bit here.” Defendant replied, “Well, I gotta go stand trail

[sic] there, so I, I’d rather wait and talk to uh lawyer.” Finally, at the end of the

interrogation, Haseleu asked defendant whether he would be willing to talk to a

doctor, to which defendant replied, “I’d rather do that after I seen my lawyer and

see what, what the complications of that would be, or have one present.”

In addition to these invocations of his right to counsel, defendant declined

to answer a number of questions during the course of the interrogation. For

example, he declined to answer any questions about Fathyma Vann; to describe


the flashbacks he said he suffered as a result of serving in Vietnam; to answer

questions about when he had been in Burlingame and when he had left California;

and to answer certain questions about Carol Spadoni. He also refused to answer

some questions about his criminal history, his family background, why he had not

used a credit card found in his possession (which, evidently belonged to Eva

Petersen), the police stop in Wyoming, about unspecified pressures he had been

experiencing in California, whether something had “set him off,” and whether he

“want[ed] to get caught.”

Defendant did, however, answer many other questions and converse with

the detectives on a range of subjects including the route he had taken from

California to Kansas, his financial situation, his relationships with women,

including Spadoni, some details of his prior offenses, his life after his release from

prison and his dissatisfaction with living in Indio. At one point defendant

acknowledged he had “done wrong” in Burlingame and in Indio and, when asked

what was going to happen to him, answered, “I’m going back to prison on life

[sic] or deathrow, I don’t know.”

Before trial, defendant moved to prohibit any use of the statement because

it was involuntary. The trial court agreed that some of defendant’s statements

were “involuntary and coerced” because of “promises and what I consider to be

the exertion of an improper influence by the officers on” defendant. The court

went on to note, however, that such involuntary statements must be “proximately

caused by the promise, threat or exertion of improper influence.” The court said it

could not tell which statements were proximately caused by police misconduct and

devised the following procedure: “If the defendant testifies and the District

Attorney wishes to impeach him, the District Attorney will be ordered not to use

any contents of that statement to impeach him before seeking permission to do so


outside the presence of the jury. At that time, I will . . . determine whether or not

the particular statement that the District Attorney intends to use was proximately

caused by the promise or exertion of improper influence. Until that time, there’s

simply no way that I could know or anyone else could know which statements

we’d be talking about.” Defense counsel objected that this procedure “has an

[e]ffect on our decisionary process on whether or not the defendant testifies.” The

prosecutor suggested that defendant could make an offer of proof as to his

testimony for the prosecutor to determine which statements from the interrogation

might be used for impeachment. The court replied it would be “open to that

procedure if it becomes necessary.” Ultimately, defendant did not testify at any

phase of his trial nor did the defense make an offer of proof as to his testimony.

b. Forfeiture

The Attorney General argues that defendant forfeited his claim that the

statement was involuntary by failing to secure a final ruling, either by testifying

and obtaining specific rulings as to which, if any, of his statements could be used

to impeach him, or by making an offer of proof. Defendant, on the other hand,

contends that either requiring him to testify or make an offer of proof before

obtaining a definitive ruling on the voluntariness of his statement itself

impermissibly burdened his Fifth Amendment right against self-incrimination and

his Sixth Amendment right to assistance of counsel.

The Attorney General acknowledges that the authority he cites in support of

his forfeiture argument does not involve pretrial evidentiary rulings of

constitutional dimension. (E.g., Luce v. United States (1984) 469 U.S. 38, 42

[denial of a motion to exclude a prior conviction offered for impeachment is not

reviewable on appeal if the defendant fails to testify]; People v. Collins (1986) 42

Cal.3d 378, 383-385 [adopting Luce rule]; People v. Sims (1993) 5 Cal.4th 405,


453-456 [defendant’s claim that the trial court erred in ruling that prosecution

might be permitted to cross-examine him on unadjudicated murders should he

testify at guilt phase forfeited by his failure to testify].)

By contrast, defendant points to People v. Brown (1996) 42 Cal.App.4th

461 wherein the Court of Appeal held that a defendant had not forfeited his

challenge to a statement assertedly obtained in violation of his Fifth and Sixth

Amendment rights by his failure to have testified and subjected himself to

impeachment with the statement. Rejecting the People’s forfeiture claim, the

Court of Appeal “conclude[d] that when the defendant raises a pure issue of law

concerning a fundamental constitutional right, the defendant need not testify to

preserve error in the trial court’s ruling on impeaching evidence.” (Id. at p. 471.)

According to the Court of Appeal, its conclusion represented the majority of the

jurisdictions that have considered the issue. (Id. at p. 469, fn. 4.)

Where, as here, the question of whether a defendant has preserved his or

her right to raise an issue on appeal is a “close and difficult” one, we sometimes

assume the issue has been preserved and proceed to the merits. (People v.

Champion (1995) 9 Cal.4th 879, 908, fn. 6.) We apply that principle here and turn

now to the voluntariness issue.

c. Voluntariness

A statement is involuntary when “among other circumstances, it ‘was

“ ‘extracted by any sort of threats . . . , [or] obtained by any direct or implied

promises, however slight . . . .’ ” ’ [Citations.] Voluntariness does not turn on

any one fact, no matter how apparently significant, but rather on the ‘totality of

[the] circumstances.’ ” (People v. Neal (2003) 31 Cal.4th 63, 79.) “Coercive

police activity is a necessary predicate but does not itself compel a finding that a

resulting confession is involuntary. [Citation.] While the fact that a statement was


obtained despite the defendant’s invocation of the right to counsel is one of the

circumstances we consider, it also is not dispositive.” (People v. Bradford (1997)

14 Cal.4th 1005, 1041.) Additionally, “such activity must be, as it were, the

‘proximate cause’ of the statement in question, and not merely a cause in fact.”

(People v. Mickey (1991) 54 Cal.3d 612, 647; People v. Benson (1990) 52 Cal.3d

754, 778-779.)

“In reviewing the trial court’s determinations of voluntariness, we apply an

independent standard of review, doing so ‘in light of the record in its entirety,

including “all the surrounding circumstances — both the characteristics of the

accused and the details of the [encounter].” ’ ” (People v. Neal, supra, 31 Cal.4th

at p. 80.) But “ ‘we accept the trial court’s factual findings, based on its resolution

of factual disputes, its choices among conflicting inferences, and its evaluations of

witness credibility, provided that these findings are supported by substantial

evidence.’ (People v. Mayfield (1997) 14 Cal.4th 668, 733 [60 Cal.Rptr.2d 1, 928

P.2d 485].)” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 56.)

Defendant contends that his police interrogators, Barfknecht and Haseleu

“made affirmative statements and engaged in affirmative conduct that created a

misrepresentation as to the nature and scope of [defendant’s] Fifth Amendment

privilege” and “created the impression that the Miranda warnings were at least not

literally what they appeared to be and that they allowed the police to continue in

an attempt to persuade the suspect to waive his Fifth Amendment privilege.” At

bottom, however, defendant’s argument is that Miranda violations themselves, if

repeated and persistent, are sufficient to establish involuntariness. “However, just

as a failure to give Miranda warnings does not in and of itself constitute coercion

[citation], neither does continued interrogation after a defendant has invoked his

right to counsel . . . inherently constitute coercion. [Citation.]” (People v.


Bradford, supra, 14 Cal.4th at p. 1039; see Oregon v. Elstad (1985) 470 U.S. 298,

307 [“Despite the fact that patently voluntary statements taken in violation of

Miranda must be excluded from the prosecution’s case, the presumption of

coercion does not bar their use for impeachment purposes on cross-

examination”].) Rather, we consider all the relevant circumstances, even in a case

where, as here, the police interrogators repeatedly ignored defendant’s invocation

of his right to counsel.

Our decision in People v. Coffman and Marlow, supra, 34 Cal.4th 1

(Coffman), is particularly instructive on this issue. In Coffman, defendant Marlow

argued, as does defendant here, that his statement to police, which was used to

impeach him at trial, was involuntary because, inter alia, his interrogator ignored

his nine requests to speak with an attorney and “repeatedly assured Marlow that

nothing he said could be used in court . . . .” (Coffman, supra, 34 Cal.4th at p. 58.)

In rejecting his claim, we observed that his interrogation, “while prolonged, was

not accompanied by a denial of all creature comforts or accomplished by means of

physical or psychological mistreatment, threats of harsh consequences or official

inducement amounting to coercion . . . .” (Ibid.) While the fact that Marlow’s

interrogator repeatedly ignored his requests for an attorney gave us cause for

concern, “given Marlow’s maturity and criminal experience (he was over 30 years

old and a convicted felon at the time of the interrogation) — it was unlikely

Marlow’s will was thereby overborne.” (Id. at pp. 58-59.) Furthermore, while we

acknowledged that statements by Marlow’s police interrogator that anything

Marlow said could not be used in court “raise the specter of coercion,”

nonetheless, we concluded that his statements were voluntary. We noted:

“Significantly, for a considerable period after [the police officer] began to assure

Marlow his statements would not be used, Marlow continued to resist disclosing


[the victim’s] whereabouts or admitting he committed the offenses. His

resistance, far from reflecting a will overborne by official coercion, suggests

instead a still operative ability to calculate his self-interest in choosing whether to

disclose or withhold information.” (Id. at p. 59.)

The factors that supported a finding of voluntariness in Coffman are even

stronger here. Neither the length nor physical circumstances of defendant’s

interrogation appear to have been coercive; the interrogation was spread over a

four-hour period from midmorning to midafternoon with a refreshment break and

a lunch break. Nor was the tone of the questioning as evidenced in the transcript

particularly harsh or accusatory — indeed, defendant argues that the “excessive”

friendliness of the interrogators should be deemed a factor in favor of finding

involuntariness. While, as in Coffman, the police at one point falsely represented

to defendant that his statement could not be used against him in court, defendant’s

response was to again request a lawyer. Thus, he made no incriminating statement

that can be attributed to the false representation. (People v. Benson, supra, 52

Cal.3d at p. 778 [“A confession is ‘obtained’ by a promise within the proscription

of both the federal and state due process guaranties if and only if inducement and

statement are linked, as it were, by ‘proximate’ causation”].) Indeed, contrary to

his assertion on appeal that his will was overborne by the officers’ repeated

ignoring of his request for counsel, here, as was true in Coffman, the transcript

shows that defendant, a man of mature years with an extensive criminal history,

was throughout the interrogation perfectly capable of “calculat[ing] his self-

interest in choosing whether to disclose or withhold information.” (Coffman,

supra, 34 Cal.4th at p. 59.) In fact, our review of the transcript reveals that

defendant supplied very little information to his interrogators that could have been


used for impeachment. We conclude, then, that defendant’s statement was

voluntary and, assuming his constitutional claims were preserved, we reject them.

Our conclusion that the officers’ repeated refusal to honor defendant’s

invocation of his Miranda rights did not induce an involuntary statement should

not be construed as condoning the officers’ tactics. The Supreme Court has made

clear that “Miranda is a constitutional decision” (Dickerson v. United States

(2000) 530 U.S. 428, 438) and articulates “a constitutional rule” (id. at p. 444),

notwithstanding exceptions to the rule like the one at issue here. (Ibid.) (See

People v. Gonzalez (2005) 34 Cal.4th 1111, 1122 [“Miranda is a rule of

constitutional magnitude”].) Thus, the deliberate, intentional and repeated

violation of that rule may violate a defendant’s constitutional rights. At minimum,

“[a]s we have emphasized on more than one occasion, [such] misconduct . . . is

‘unethical’ and must be ‘strongly disapproved.’ [Citations.]” (People v. Neal,

supra, 31 Cal.4th at p. 81.) This type of police misconduct is not only

nonproductive, as this case demonstrates, but can be counterproductive because in

the appropriate case it would compel us to reverse a conviction. (Id. at p. 87.)

Surely, the possibility of reversal must outweigh whatever advantage police

interrogators hope to gain by systematically ignoring a defendant’s invocation of

his or her Miranda rights. Moreover, respect for the rule of law is not advanced

when the guardians of the law elect to deliberately violate it.

In any event, even if the trial court had erred in this case by failing to find

defendant’s statement wholly involuntary, we would find such error harmless

beyond a reasonable doubt. (People v. Neal, supra, 31 Cal.4th at p. 86 [“the

erroneous denial of defendant’s motion to suppress his two confessions is subject


to harmless error analysis under the beyond-a-reasonable-doubt standard of

Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]”].)5

Defendant argues that, had he taken the stand, he could have offered testimony

that he did not plan the murders in advance but was responding to the “pressures”

he referred to in his statement that were similar to the pressures he experienced

before he murdered Linda Kimball and tried to drown Alice McGowan. He

5 Defendant argues that because the trial court’s failure to find his statement was
involuntary prevented him from testifying, the error is reversible per se. We reject
this conclusion. Neither of the United States Supreme Court cases he cites in
support of this claim is apposite. In New Jersey v. Portash (1979) 440 U.S. 450, a
New Jersey appellate court reversed a defendant’s conviction because the
prosecution planned to use his immunized grand jury testimony from another case
at his trial, even though the defendant did not testify at his trial and did not show
prejudice. (Id. at pp. 454-455, 459-460.) In affirming the New Jersey court, the
high court stated simply that “federal law does not insist that New Jersey was
wrong in not requiring Portash to take the witness stand in order to raise his
constitutional claim.” (Id. at p. 456.) The court did not set forth a general rule
prohibiting harmless error analysis where a defendant asserts that impairment of
his Fifth Amendment right prevented him from testifying. In Brooks v. Tennessee
(1972) 406 U.S. 605, the court invalidated a state procedural rule that required a
defendant to testify before any other defense witness or lose his right to testify.
With respect to prejudice, the court merely observed: “The State makes no claim
that this was harmless error, Chapman v. California, 386 U.S. 18 (1967), and
petitioner is entitled to a new trial.” (Id. at p. 613.) Moreover, the predicate of
defendant’s reversal per se claim — that it was only the trial court’s failure to
exclude his statement that kept him off the stand — is dubious in the
circumstances of this case. As the Supreme Court observed in Luce v. United
States, supra,
469 U.S. at page 42, “an accused’s decision whether to testify
seldom turns on the resolution of one factor.” In this case, defendant would have
been subject to extensive impeachment with his tape-recorded narration of his
crimes and extensive history of violent crimes against women with whom he was
in relationships, quite apart from whatever minimal impeachment material could
have been gleaned from his statement to police. We think it highly unlikely that
admission of his statement would have been the only or, indeed, a significant
factor in his decision whether to testify.


maintains this testimony would have been relevant at the guilt phase to the issue of

premeditation and deliberation and whether he actually committed the sexual

crimes against Eva Petersen that were the basis of the rape- and sodomy-murder

special circumstances as to Eva Petersen. He also argues his testimony would

have been relevant at the sanity phase on the question of whether he could

distinguish right from wrong at the time he committed the murders.

We conclude that defendant was not prejudiced, because his putative

testimony would not have affected the result at either the guilt or sanity phase of

his trial. As to premeditation and deliberation, the evidence showed that defendant

armed himself with a gun, drove from Indio to Burlingame, surreptitiously entered

the victims’ residence and shot them both at close range. His motive for the

murders was to avenge himself for Spadoni’s rejection of him, a rejection that he

believed Petersen had encouraged. Thus, there was overwhelming evidence of the

three factors — planning, motive, and manner of killing — that may establish

premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15; People

v. Stitely (2005) 35 Cal.4th 514, 543.) Moreover, much of this evidence was

produced by defendant himself, in his own words, on the tape recording he

prepared for himself in which he narrated his crimes.

With respect to the felony-murder special circumstances of rape and

sodomy as to Eva Petersen, defendant claims that the disparity between his

description of his sexual attack on Petersen in the tape recording and the physical

evidence could have led the jury to conclude that these crimes did not occur, but

were the product of defendant’s unbalanced mind, a point he would presumably

have made had he testified. The physical evidence did not show, however, that

Petersen had not been raped and sodomized, but only that, because decomposition

had begun to set in, the pathologist could not determine whether a sexual assault


had occurred on either victim. Thus, the physical evidence was not inconsistent

with defendant’s description on the tape recording of rape and sodomy. Moreover,

evidence that Petersen’s body was nude from the waist down and that saliva

consistent with defendant’s was found on her nipple corroborated his account. On

this record, we cannot conclude that defendant’s putative testimony that he did not

plan the killings or committed them in a “frenzy” or a “trance-like” state would

have made any difference to the jury’s verdict at either the guilt or sanity phase.

We conclude, therefore, that any error in not excluding defendant’s statement, if

there was error, was harmless beyond a reasonable doubt.

2. Evidentiary Issue

a. Victims’ Expressions of Fear of Defendant

Richard Muniz, defendant’s prison friend, testified that seven months

before the murders, Eva Petersen called him and asked him to pick up some of

defendant’s belongings. The defense objected on hearsay and relevance grounds

to proposed testimony by Muniz that the reason Petersen wanted him to remove

defendant’s belongings was because she was afraid of defendant and did not want

him anywhere near her house. The prosecutor argued that the evidence was

admissible under Evidence Code section 1250 to prove Petersen’s state of mind.

The prosecutor explained: “I think that’s relevant, to show the premeditation

involved in this murder, in that . . . this was communicated to [defendant], first of

all, by Mr. Muniz at some point; second, that she would not have let him into the

house, that he would have had to have broken into the house, which I think shows

some degree of premeditation and deliberation in the commission of the crime.”

The defense argued that the state of mind exception did not apply because

the defense was not claiming that Petersen voluntarily admitted defendant into the


residence. Furthermore, the defense argued that because the statement was made

seven months before the murder, its relevance, if any, was speculative and the

statement should be excluded under Evidence Code section 352. The trial court

disagreed and overruled all objections to the evidence. The court said, “As I

understand it, the theory is that [Petersen] would not have voluntarily let him in;

therefore, bearing upon the question of premeditation . . . .”

Sometime later in the trial, the trial court also admitted testimony from

Robert Paredes that Carol Spadoni told him she did not want defendant living with

her because she was afraid of him. The defense again objected on hearsay

grounds and the prosecution again successfully argued that the evidence was

relevant to her “state of mind and why he wasn’t allowed in Burlingame . . . .

Again, I think that goes to premeditation for the murder, he knew he wasn’t

supposed to be in the area.”

Defendant argues that the trial court erroneously admitted the evidence of

the victims’ fear of defendant under the state-of-mind exception because their

states of mind were not at issue. The Attorney General argues that the evidence

was relevant to defendant’s state of mind because it tended to show he was aware

that the victims did not want him at their residence and that he would have to gain

entrance surreptitiously. The Attorney General also adopts the prosecutor’s

argument that the evidence showed the victims’ state of mind.

In pertinent part, Evidence Code section 1250 creates an exception to the

hearsay rule that permits admission of “evidence of a statement of the declarant’s

then existing state of mind, emotion, or physical sensation (including a statement

of intent, plan, motive, design, mental feeling, pain, or bodily health) . . . when:

[¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or

physical sensation at that time or any other time when it is itself an issue in the


action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of

the declarant.” (Evid. Code, § 1250, subd. (a).)

“As our cases have made clear, ‘a victim’s out-of-court statements of fear

of an accused are admissible under section 1250 only when the victim’s conduct in

conformity with that fear is in dispute. Absent such dispute, the statements are

irrelevant. [Citation.]’ ” (People v. Ruiz (1988) 44 Cal.3d 589, 608.) In People v.

Armendariz (1984) 37 Cal.3d 573, we concluded that the victim’s statement to his

son that he was afraid because the defendant had demanded money and threatened

to assault him if he did not comply, which was made 17 months before the

defendant killed the victim, was inadmissible under Evidence Code section 1250

because the victim’s state of mind was not at issue. (People v. Armendariz, supra,

37 Cal.3d at pp. 585-586.) “[I]n this case there was no issue of fact as to [the

victim’s] conduct on the night of his death. Appellant did not claim that [the

victim] admitted him into the house or otherwise behaved in a friendly manner

toward him on the night of the killing. Nor did the evidence raise any question as

to whether the killing had been accidental or justifiable. . . . Thus, [the victim’s]

state of mind was irrelevant and could not be used to justify admission of the

disputed statement.” (Id. at p. 587.)

We reaffirmed this principle in People v. Hernandez (2003) 30 Cal.4th 835

where we observed that “[a] prerequisite to this exception to the hearsay rule is

that the declarant’s mental state or conduct be factually relevant. [Citations.] A

murder victim’s fear of the alleged killer may be an issue when the victim’s state

of mind is directly relevant to an element of the offense. [Citation.] That fear may

also be in issue when, according to the defendant, the victim has behaved in a

manner inconsistent with that fear [citation].” (Id. at p. 872.) An instance of the

former is where the victim’s statement that she feared the defendant was relevant


to whether the victim would have consented to the defendant’s entry into her

residence where burglary and robbery special circumstances were alleged. “Lack

of consent was material to burglary because it was material to the element of entry

[citation], and was also material to robbery because it was material to the element

of taking by means of force or fear [citation].” (People v. Waidla, supra, 22

Cal.4th at p. 723.) An instance of the latter is where the decedent’s fear was

relevant to disprove the defendant’s claim that the victim was sitting on his lap and

examining his gun when it accidentally discharged. (People v. Lew (1968) 68

Cal.2d 774, 778-780.)

We agree with defendant that the victims’ statements were inadmissible

under section 1250 because the state of mind of the victims was not relevant to

any disputed issue. Thus, to the extent the trial court admitted the statements

under this theory, the trial court erred. However, threaded through the discussion

of the admissibility of Petersen’s statement was the prosecution’s contention that,

because the statement had been communicated to defendant by Muniz, it was

generally admissible on the issue of premeditation. The trial court agreed that

Petersen’s statement had some “bearing upon the question of premeditation. . . .”

To the extent that Petersen’s statement was admitted to show its effect on

defendant, the statement was not hearsay because it was not admitted for the truth

— that is, that Petersen was afraid of defendant. (See People v. Boyette (2002) 29

Cal.4th 381, 428-429 [trial court erroneously excluded as hearsay testimony by

defendant’s mother of threats against her where defendant testified that such

threats had led him to accept blame for shooting to protect his family; “evidence of

threats would not have been barred by the hearsay rule, for such evidence would

not have been offered for its truth (i.e., that Thomas or Johnson actually intended

to retaliate against defendant or his family), but for a different purpose: to show


the effect of the statements on defendant”]; People v. Jackson (1991) 235

Cal.App.3d 1670, 1680-1681 [evidence of threat admitted for nonhearsay purpose

of showing consciousness of guilt].)

However, “[a] hearsay objection to an out-of-court statement may not be

overruled simply by identifying a nonhearsay purpose for admitting the statement.

The trial court must also find that the nonhearsay purpose is relevant to an issue in

dispute.” (People v. Armendariz, supra, 37 Cal.3d 573, 585.) Relevant evidence

is evidence “having any tendency in reason to prove or disprove any disputed fact

that is of consequence to the determination of the action.” (Evid. Code, § 210.)

We review a trial court’s relevance determination under the deferential abuse of

discretion standard. (People v. Heard (2003) 31 Cal.4th 946, 973.) Evidence that

defendant believed Petersen was afraid of him had some bearing on his mental

state in going to visit the women — as the trial court expressed it “he was not

going for a friendly visit” — and how he planned to approach the victims (by

stealth as opposed to open confrontation) both of which, in turn, were relevant to

premeditation. Accordingly, we conclude that the trial court did not abuse its

discretion to the extent it admitted evidence of Petersen’s statement for its effect

on defendant and notwithstanding that the statement was communicated to him

seven months before the murders. To the extent the victims’ statements were

erroneously admitted under section 1250, in light of the overwhelming evidence of

defendant’s guilt, the error was harmless under either the Watson standard (People

v. Watson (1956) 46 Cal.2d 818, 836) for assessing the prejudicial effect of state

error or the Chapman standard (Chapman v. California, supra, 386 U.S. at p. 24)

for evaluating the prejudicial effect of federal constitutional error.


b. Homemade Handcuffs and Stun Gun

The officer who conducted the search of defendant’s vehicle after his arrest

in Kansas testified that among the items he recovered from the vehicle was a roll

of duct tape, homemade wire handcuffs, and a stun gun. Defense counsel objected

to admission of the handcuffs and the stun gun on grounds of relevance. The

prosecutor’s offer of proof as to both items was that they showed that defendant

was prepared to restrain or immobilize the victims before he arrived in Burlingame

and they were therefore relevant to premeditation. With respect to the stun gun,

defense counsel also objected pursuant to Evidence Code section 1101,

subdivision (a) because it “just tends to show a character.” Defendant contends

the trial court abused its discretion by admitting the items.

As noted, relevant evidence is evidence “having any tendency in reason to

prove or disprove any disputed fact that is of consequence to the determination of

the action.” (Evid. Code, § 210.) In reviewing a trial court’s relevance ruling we

apply the abuse of discretion standard. (People v. Panah (2005) 35 Cal.4th 395,

474.) Here, premeditation was a disputed fact and evidence that defendant carried

devices to the crime scene that could have been used to restrain or immobilize the

victims was relevant to premeditation. (People v. Anderson, supra, 70 Cal.2d at

pp. 26-27 [evidence of planning activity is pertinent to the determination of

premeditation and deliberation].) The relevance of these items was enhanced by

additional evidence surrounding the commission of the crimes, including

defendant’s apparently surreptitious entry into the victims’ residence and his use

of duct tape to gag Carol Spadoni and a towel to gag Eva Petersen. It reasonably

can be inferred from this evidence that defendant planned to take the victims by

surprise and also planned to restrain or immobilize them to prevent them from

resisting or seeking help.


Defendant cites a series of Court of Appeal cases for the proposition that

“[e]vidence of possession of a weapon not used in the crime charged against

defendant leads logically only to an inference that defendant is the kind of person

who surrounds himself with deadly weapons — a fact of no relevant consequence

to determination of the guilt or innocence of the defendant.” (People v.

Henderson (1976) 58 Cal.App.3d 349, 360, italics omitted.) But each of these

decisions is readily distinguishable on its facts because in each case the weapons

had no relationship at all to the charged crime and, by extension, were not relevant

to any issue in dispute. (See, e.g., People v. Witt (1958) 159 Cal.App.2d 492, 497

[weapons that were not taken in the burglary of which defendant was convicted,

but were found in his car, were inadmissible at his trial for burglary]; People v.

Henderson, supra, 58 Cal.App.3d at p. 360 [second handgun found in defendant’s

apartment that he did not use in committing assault upon police officers with a

firearm was irrelevant for any purpose]; People v. Archer (2000) 82 Cal.App.4th

1380, 1392 [knives found in defendant’s backyard almost two years after the

murder with which he was charged, that were determined not to have been the

murder weapons, were irrelevant to show planning or availability of weapons].)

Here, by contrast, the items recovered from defendant’s vehicle were relevant to

premeditation. (See People v. Smith (2003) 30 Cal.4th 581, 613 [trial court did not

err in admitting evidence that defendant owned a derringer and ammunition not

used in the murder because “[t]his evidence did not merely show that defendant

was the sort of person who carries deadly weapons, but it was relevant to his state

of mind when he shot [the victim]”].)

Defense counsel also perfunctorily objected to the admission of the stun

gun pursuant to Evidence Code section 1101. That statute prohibits character

evidence to prove conduct on a specific occasion but does not prohibit evidence


“that a person committed a crime, civil wrong or other act when relevant to prove

some fact (such as motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake or accident . . .) other than his or her disposition to

commit such an act.” (Evid. Code, § 1101, subd. (b).) Here, defendant’s

possession of the stun gun was not admitted to prove disposition but to prove

preparation, which was relevant to establish premeditation. Accordingly, we

conclude that the trial court did not abuse its discretion in admitting the items at

issue. Even were we to conclude, however, that admission of those items was

erroneous, given the overwhelming evidence of defendant’s guilt, we would find

any error harmless. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v.

California, supra, 386 U.S. at p. 24.)

c. Exclusion of Impeachment Evidence

Defendant contends the trial court erroneously excluded evidence that

would have impeached testimony by his parole officer, Robert Paredes, that

Paredes did not observe any indication of mental disorder in his meetings with

defendant. The evidence consisted of a letter written to Paredes by Dr. Sylvia

Winters, a psychiatrist at the Loma Linda VA hospital, in which she recommended

that defendant sleep alone and not be in areas where there were helicopters flying

overhead. These recommendations were related to her tentative diagnosis that

defendant suffered from posttraumatic stress disorder. The prosecutor objected

that the letter was hearsay. Defense counsel argued the letter was relevant to

impeach Paredes’s “capacity to perceive” defendant’s mental state.

Defendant now argues that Paredes was testifying as an expert witness on

mental disorders and, therefore, Dr. Winters’s letter was proper impeachment of

his opinion that defendant did not suffer from such disorder. (People v. Montiel


(1993) 5 Cal.4th 877, 924 [“It is common practice to challenge an expert by

inquiring in good faith about relevant information, including hearsay, which he

may have overlooked or ignored”].) This argument was not presented to the trial

court as a basis to permit impeachment of Paredes with the letter and, therefore,

the claim is forfeited. (People v. Fauber (1992) 2 Cal.4th 792, 831.) But even if

the claim has not been forfeited, it is without merit. Notwithstanding Paredes’s

testimony that he had taken classes in abnormal psychology, the prosecutor did not

attempt to qualify him as an expert on that subject, nor did the court designate him

as such. It is the trial court that makes this determination (see, e.g., People v.

James (1989) 208 Cal.App.3d 1155, 1164), and defendant cites no relevant

authority for his assertion that a witness becomes a de facto expert simply because

his or her personal observations may be partially informed by some professional

training. Here, Paredes’s testimony about defendant’s mental condition was based

on his asking defendant questions about his mental functioning and his

observations of defendant’s behavior, not on any professional expertise. Thus,

Paredes did not testify as an expert and Dr. Winters’s letter was properly excluded.

As an addendum to his argument, defendant makes the same claim with

respect to the trial court’s exclusion on grounds it was hearsay of a Department of

Corrections report received by Paredes that contained a statement by a Dr. Solon

that defendant’s psychosis could set in at any time. We reject his claim for the

reasons set forth above.

d. Admission of Defendant’s Letter to Eva Petersen

Defendant contends that the trial court abused its discretion under Evidence

Code section 352 when it admitted a letter from defendant to Eva Petersen in

1982, while defendant was in prison, in the course of which he wrote: “But, of


course, I’ll try to get hold of your big breasts under your nightie. I would love to

feel them and suck their nipples until they get big and round and hard. I would

never go down below your waist, but I am going to make them free game, O.K.?”

The prosecution argued the letter was evidence of defendant’s sexual intent toward

Petersen as to whom rape and sodomy special circumstances were alleged.

Defense counsel argued the probative value was weak in comparison to the

prejudicial nature of the letter.6 The trial court overruled the defense objection.

The court observed that it expected the defense to argue that, notwithstanding

defendant’s tape-recorded account of his sexual assault on Eva Petersen, there was

“no sexual intent or actual sexual contact. I think the probative value of this

particular note is extremely high, and that the probative value is not outweighed by

the probability that the admission of the note will create a substantial danger of

undue prejudice.” The trial court acknowledged that the fact the letter was written

nine years before the murders would ordinarily be an important factor in weighing

its probative value against its potential prejudicial impact but agreed with the

prosecutor that “this is the first opportunity the defendant would have had to carry

out those desires because of his imprisonment.”

“[A]n 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 relative probativeness and prejudice of the evidence in question [citations].

Evidence is substantially more prejudicial than probative (see Evid. Code, § 352)

if, broadly stated, it poses an intolerable ‘risk to the fairness of the proceedings or

6 Trial counsel also perfunctorily objected on relevance grounds and under
Evidence Code section 1101 but neither argument is renewed on appeal.


the reliability of the outcome’ [citation].” (People v. Waidla, supra, 22 Cal.4th at

p. 724.) Here, defendant’s expression of a prurient sexual interest in his mother-

in-law was relevant to issues in dispute at his trial, namely, the truth of the sodomy

and rape special circumstances. The time lag between when the letter was written

and when the offenses occurred was substantial, but the trial court factored this

into its analysis and concluded, not unreasonably, that defendant would have been

unable to act on his desires any sooner than he did because he was in prison. And,

although distasteful, the letter was not so repellant as to have engendered against

defendant the particular type of prejudice with which Evidence Code section 352

is concerned. (People v. Lenart (2004) 32 Cal.4th 1107, 1125 [“Prejudice for

purposes of Evidence Code section 352 means evidence that tends to evoke an

emotional bias against the defendant”].) We conclude, therefore, that the trial

court did not abuse its discretion in admitting the letter.

3. Cumulative Prejudice

Defendant contends that the cumulative prejudice from the preceding

claims of guilt phase error require reversal. However, “[d]efendant has

demonstrated few errors, and we have found each error or possible error to be

harmless when considered separately. Considering them together we likewise

conclude that their cumulative effect does not warrant reversal of the judgment.”

(People v. Panah, supra, 35 Cal.4th at pp. 479-480.)

4. Section 190.41

“In every criminal trial, the prosecution must prove the corpus delicti, or

the body of the crime itself — i.e., the fact of injury, loss, or harm, and the

existence of a criminal agency as its cause. In California, it has traditionally been

held, the prosecution cannot satisfy this burden by relying exclusively upon the


extrajudicial statements, confessions, or admissions of the defendant. [Citations.]

Though mandated by no statute, and never deemed a constitutional guaranty, the

rule requiring some independent proof of the corpus delicti has roots in the

common law.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169.)

In People v. Mattson (1984) 37 Cal.3d 85, 94, we concluded that “the

corpus delicti of felony-based special circumstances must be established

independently of an accused’s extrajudicial statements.” Mattson was abrogated

in 1990 by passage of Proposition 115, which added section 190.41 to the Penal

Code. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1263, fn. 1.) Section

190.41 states in relevant part: “[T]he corpus delicti of a felony-based special

circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2

need not be proved independently of a defendant’s extrajudicial statement.” In

People v. Ray (1996) 13 Cal.4th 313, we noted that this section “applies to crimes

committed after it became effective on June 6, 1990.” (Id. at p. 341, fn. 13.)

Defendant’s offenses were committed in April 1991 and, therefore, section

190.41 applied. Nonetheless, defense counsel objected to an instruction based on

that section that informed the jury, “the existence of a special circumstance may be

established by a confession or an admission.” As relevant here, defense counsel

argued that section 190.41 violated the Eighth Amendment’s requirement of a

meaningful narrowing of the class of murders as to which the death penalty may

be imposed. (Furman v. Georgia (1972) 408 U.S. 238, 313 (conc. opn. of White,

J.); Godfrey v. Georgia (1980) 446 U.S. 420, 427-428; People v. Edelbacher

(1989) 47 Cal.3d 983, 1023.) Additionally, defense counsel argued that the statute

violated the requirement of heightened reliability in capital cases. Defendant

renews both claims on appeal.


At the outset, we presume that the abolition of the corpus delicti rule with

respect to special circumstances via section 190.41 was a constitutionally valid

exercise of the initiative process. (People v. Davenport (1985) 41 Cal.3d 247, 263

[“The presumption that the legislating body intended to enact a valid stature

applies to measures enacted by initiative as well as those enacted by the

Legislature”]; Mills v. Superior Court (1986) 42 Cal.3d 951, 957 [“[I]t is our duty

to uphold a statute unless its unconstitutionality clearly, positively, and

unmistakably appears; all presumptions and intendments favor its validity”].)

Bearing these principles in mind, we examine defendant’s Eighth

Amendment arguments. As defendant acknowledges, in California’s death

penalty scheme, the Eighth Amendment’s narrowing function “is performed by the

requirement that a capital jury sustain at least one statutorily enumerated special

circumstance.” (People v. Boyette (2002) 29 Cal.4th 381, 439.) Here, the jury

found true four special circumstances, including the rape and sodomy special

circumstances, and the prior-murder and multiple-murder special circumstances.

Thus, in this case, the narrowing requirement was fulfilled by the jury’s findings.

Defendant, however, suggests that the Eighth Amendment also prescribes a

particular manner in which the special circumstances must be proved as part of the

narrowing functioning, but he cites no authority for this proposition. In this

connection, we consider his related claim that the Eighth Amendment’s

requirement of heightened reliability in capital cases mandates application of the

corpus delicti rule to felony-based special circumstances. The requirement that the

special circumstances be based on reliable evidence does not, however, include a

further requirement that it be proved in compliance with any particular rule of

evidence. Rules of evidence are subject to change and, as a general matter, the


ordinary application of such rules in a capital case does not raise constitutional

concerns. (People v. Boyette, supra, 29 Cal.4th at pp. 427-428.)

As we have already observed, the corpus delicti rule is neither a rule of

constitutional magnitude nor statutorily mandated. It is a common law rule of

evidence the purpose of which is to “ensure that one will not be falsely convicted,

by his or her untested words alone, of a crime that never happened.” (People v.

Alvarez, supra, 27 Cal.4th at p. 1169.) Moreover, “[t]he amount of independent

proof of a crime required for this purpose is quite small; we have described this

quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need

make only a prima facie showing ‘ “permitting the reasonable inference that a

crime was committed.” ’ [Citation.] The inference need not be ‘the only, or even

the most compelling, one . . . [but need only be] a reasonable one . . . .’ [(People

v.] Jennings [(1991) 53 Cal.3d 334, 367].)” (People v. Jones (1998) 17 Cal.4th

279, 301.)

In People v. Weaver, supra, 26 Cal.4th 876, the defendant argued that the

corpus delicti rule precluded the prosecution from using his uncorroborated

admissions that he raped the victim to establish first degree murder on a felony

murder theory. Like defendant here, the defendant based his argument on the

Eighth Amendment’s heightened reliability requirement. We rejected his claim:

“The motivating idea of the corpus delicti rule — to protect an accused from his or

her own fabricated statements — has little application in this situation, where the

corpus delicti of murder is established by ample evidence of a homicide

committed by a criminal agency. . . . Application of the corpus delicti rule to the

charge that he committed murder also protects [the defendant]. He finally is

protected by his ability, should he so desire, to attempt to exclude his statements

by proving they were the product of his mental impairment or of police


misconduct.” (Id. at p. 930.) In a capital case, then, because the corpus delicti

rule still applies to the underlying homicide there is no danger that a defendant

will be convicted of that homicide on his untested words alone. Moreover, a

defendant can attempt to exclude his statements on the grounds that they are the

result of police coercion or mental impairment. These safeguards protect a

defendant against the very dangers that the corpus delicti rule came into existence

to address, that is, the conviction of a defendant of a crime that did not occur but

which the defendant admitted to either as a result of official coercion or mental

impairment. (See People v. Jones, supra, 17 Cal.4th at p. 320 (conc. opn. of

Mosk, J.).) Thus, the fact that the corpus delicti rule does not apply to determine

the degree of murder in a capital case did not violate the Eighth Amendment.

(People v. Weaver, supra, 26 Cal.4th at pp. 929-931.)

Although Weaver addressed the corpus delicti rule in the context of felony

murder and not felony-based special circumstances, our observations in Weaver

are also relevant to this case. There was ample evidence, apart from defendant’s

admissions, that he murdered Eva Petersen. Had defendant’s admissions

regarding his sexual assault on Petersen been the result of police misconduct, he

could have challenged them on that ground. He did not, of course, because these

statements were not extracted from him by police, but were addressed to himself.

Defendant was also free to present evidence that the admissions were confabulated

and the product of mental delusion. Moreover, while the jury was instructed that

the existence of the special circumstances “may” be established by a confession or

admission, it was not instructed that it was restricted to such evidence. The jury

was free, therefore, to assess whether independent evidence supported the sodomy

and rape special circumstances. In this case, there was independent evidence

consistent with the special circumstance allegations. Petersen’s body was found


naked from the waist down, with her sweatshirt and bra pushed over her breasts,

and saliva consistent with defendant’s was found on her nipple. Additionally,

defendant had written Petersen a letter expressing his prurient sexual interest in

her. Finally, the pathologist who examined her body did not rule out sexual

assault but testified only that, because of the decomposition of the victims’ bodies,

she could not determine whether a sexual assault had occurred.

If the corpus delicti rule still applied to felony-based special circumstances,

this evidence would have been more than sufficient to establish the corpus delicti.

As it stands, this evidence, coupled with defendant’s admissions, is sufficient to

allay any doubt about the reliability of the special circumstance findings for Eighth

Amendment purposes.7

C. Sanity Phase Issues

1. “Serial Killer” Testimony

Defendant contends that the trial court erred when it denied his motion for a

mistrial based on testimony by Dr. Wilkinson, the court-appointed psychiatrist,

that defendant was a serial killer. He alternatively argues that the trial court erred

in overruling his Evidence Code section 352 objection to the testimony. As he did

in the trial court, defendant contends that “serial killer” is not a known

7 Defendant asserts, without elaboration, a Sixth Amendment right that the issue
of corpus delicti corroboration must be submitted to the jury, citing Ring v.
(2002) 536 U.S. 584. He fails to explain the basis of his Sixth
Amendment claim. To the extent it appears to be based on his Eighth Amendment
claim—that the felony-based special circumstance allegations must be proved
through application of the corpus delicti rule—our analysis applies with equal
force to the Sixth Amendment claim.


classification of mental disease or disorder but a popular culture term that had a

tendency to inflame the jury’s prejudices and passions against him.

Denial of a motion for a mistrial is reviewed for abuse of discretion and the

motion should be granted only when “a party’s chances of receiving a fair trial

have been irreparably damaged.” (People v. Ayala (2000) 24 Cal.4th 243, 284.)

The trial court’s rulings under Evidence Code section 352 are, of course, also

reviewed for abuse of discretion. (People v. Waidla, supra, 22 Cal.4th at p. 724.)

The issue at the sanity phase was whether defendant was “incapable of

knowing or understanding the nature and quality of his . . . act and of

distinguishing right from wrong at the time of the commission of the offense.”

(§ 25, subd. (b).) As we have elsewhere observed, in assisting the jury to make

this determination, “[n]o precise legal rules dictate the proper basis for an expert’s

journey into a patient’s mind to make judgments about his behavior.” (People v.

Stoll (1989) 49 Cal.3d 1136, 1154 [defense expert testimony that defendant

displayed no signs of sexual deviance or abnormality admissible to prove lack of

disposition to commit lewd and lascivious acts upon a child]; People v. Carpenter

(1997) 15 Cal.4th 312, 406 [“ ‘Psychiatry is not . . . an exact science, and

psychiatrists disagree widely and frequently on what constitutes mental illness, on

the appropriate diagnosis to be attached to given behavior and symptoms, on cure

and treatment, and on likelihood of future dangerousness’ ”].) Thus, the trial court

must be given wide berth in its assessment of the probative value of expert

testimony on the issue of defendant’s sanity.

In this case, the prosecutor elicited testimony from Dr. Wilkinson as to

whether defendant was a serial killer to explain that certain bizarre aspects of

defendant’s behavior were not necessarily indicative of insanity. Dr. Wilkinson

testified that a serial killer is someone for whom killing “releases, frequently,


internal tensions. They’ll feel a terrible turmoil, and by doing the murder, they get

not only a thrill, but some internal calming.” Thus, he explained, the tape

recording defendant made memorializing his crimes and the notation he made on

his belt with the names and dates of the murders of Carol Spadoni and Eva

Petersen fit the pattern of serial killers who collect “mementos” that “help [them]

relive the experience and retouch some of the gratification that they gained by

doing the acts.” When asked whether this behavior was indicative of insanity,

Wilkinson replied: “Insanity has a legal definition that must be met in order to

apply that label. It doesn’t matter how sick someone is, they have to meet the

legal criteria. [¶] So, you know, it may or may not be an indication of insanity.”

Wilkinson also testified that other aspects of defendant’s conduct, like the

“ritualistic” way in which the murders were committed, indications that he wanted

to exercise control over his victims, and his interest in police procedure were also

consistent with patterns of serial killers. In his subsequent testimony outside the

presence of the jury on the prosecution’s offer of proof, Wilkinson testified that in

arriving at these opinions regarding the behavior of serial killers, he had consulted

psychiatric literature including articles in the Bulletin of the American Academy

of Psychiatry and the Law and the Journal of the American Psychiatric


In seeking a mistrial, the defense argued that “serial killer” was a “media

term,” not a classification of mental disease, and “whether or not [defendant] was

a serial killer has nothing to do with sanity.” The defense argued that the

characterization of defendant as a serial killer might lead the jury to link him with

other notorious serial killers like the Zodiac killer or John Wayne Gacy and was

highly prejudicial to his right to an individualized determination of his sanity. The

prosecutor responded: “I think it is important for the jury to understand that there


have been studies done of serial murderers, that this is a common thing that they

do and not necessarily indicative of insanity but of a need for power and control.”

The trial court denied the motion for mistrial and the defense’s alternative claim

that the evidence was more prejudicial than probative.

We find no abuse of discretion. Defendant cites no authority for the

proposition that the only expert evidence admissible on the issue of a defendant’s

sanity must be confined to classifications of mental disease or disorder found in

the Diagnostic and Statistical Manual of Mental Disorders. As Dr. Wilkinson

testified, the phenomenon of serial murderers has been the subject of professional

interest in the psychiatric community, and his testimony regarding the behavior of

serial murderers and its relation to defendant’s conduct as it bore on the question

of his sanity was undoubtedly relevant to that issue. Nor do we find that either his

testimony or the characterization of defendant as a serial killer was more

prejudicial than probative. In relation to the testimony the jury heard regarding the

shocking circumstances of defendant’s crimes, Dr. Wilkinson’s testimony was

relatively innocuous.8 Finally, we reject as a mischaracterization of Dr.

Wilkinson’s testimony defendant’s assertion that it implied that all serial killers

are legally sane.

8 Defendant seems to suggest at certain points in his argument that the evidence
was also inadmissible because he did not fit the pattern of a serial killer. This was
not the basis of any objection below, and is thus forfeited. Defendant also asserts
that admission of the evidence violated his federal constitutional rights under the
Fourteenth and Eighth Amendments, claims that were not made at trial and, in any
event, as we have rejected their predicate, are without merit.


2. CALJIC No. 4.00

CALJIC No. 4.00, the standard instruction on the insanity defense, which

was given in this case, states: “A person is legally insane when by reason of

mental disease or mental defect he was incapable of knowing or understanding the

nature and quality of his act or incapable of distinguishing right from wrong at the

time of the commission of the crime.” Defendant contends the instruction

misstates the M’Naughten test for legal insanity, from which it is derived, because

it fails to inform the jury that a defendant’s incapacity to distinguish right from

wrong at the commission of the crime must be in relation to that act, and not a

general inability to do so. (See People v. Kelly (1973) 10 Cal.3d 565, 574

[“Insanity, under the California M’Naughton [sic] test, denotes a mental condition

which renders a person incapable of knowing or understanding the nature and

quality of his act, or incapable of distinguishing right from wrong in relation to

that act” (italics added)].) According to defendant, the instruction is flawed

because “the true question is not the general incapacity, whether temporally

limited or not, but the specific incapacity to distinguish right from wrong in

relation to the crime.” Thus, defendant maintains, he was required to establish that

his “incapacity to distinguish right from wrong had to be thoroughgoing,

complete, and absolute in order to establish legal insanity for the charged crime.”

As defendant acknowledges, in People v. Kelly (1992) 1 Cal.4th 495, 535,

we concluded that this instruction, which essentially tracks the language of section

25, subdivision (b), “correctly and adequately explain[s] the applicable law to the

jury.” He argues, however, that his specific objection to the instruction was

neither made nor considered in Kelly.

In assessing a claim of instructional error, “we must view a challenged

portion ‘in the context of the instructions as a whole and the trial record’ to


determine ‘ “whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way” that violates the Constitution.’ ” (People v.

Reliford (2003) 29 Cal.4th 1007, 1013, quoting Estelle v. McGuire, supra, 502

U.S. at p. 72.) Here, immediately before the jury was given CALJIC No. 4.00, it

was instructed that “You may consider evidence of [defendant’s] mental condition

before, during, and after the time of the commission of the crime as tending to

show the defendant’s mental condition at the time the crime was committed.

Immediately following the giving of CALJIC No. 4.00, the jury was additionally

instructed: “In determining if the defendant was capable of distinguishing right

from wrong, the term ‘wrong’ refers to both legal wrong and moral wrong. If

during the commission of the crime the defendant was incapable of understanding

that his act was morally wrong or was incapable of understanding that his act was

unlawful, then he is not criminally liable.” Even if we assume that defendant’s

strained reading of CALJIC No. 4.00 is plausible, any ambiguity in that instruction

is resolved when it is considered in context of these further instructions because

they clearly focus the jury’s attention on defendant’s capacity to distinguish right

from wrong at the time of the commission of the crimes. We therefore reject

defendant’s claim of instructional error.

3. Effect of Guilt Phase Errors

Observing that the sanity trial is part of the same proceeding as the guilt

phase (People v. Hernandez (2000) 22 Cal.4th 512, 522), defendant contends that

the alleged violation of his Fifth and Sixth Amendment rights by the admission of

his pretrial statement to police and other evidentiary errors occurring at the guilt

phase prejudiced him at the sanity phase. We disagree.


Defendant asserts that had the trial court not erred by admitting his pretrial

statement, he could have testified and shed light on his mental state, particularly

premeditation and deliberation and other unspecified matters “even more

proximately relevant to the question of sanity vel non.” We have concluded that

the statement was not involuntary and its admission was not error, thus eliminating

the predicate of his prejudice claim. We have alternatively concluded that even if

admission of the statement was error, the error was harmless beyond a reasonable

doubt, specifically on the issues of premeditation and deliberation. We have

further concluded, in light of this same evidence of defendant’s goal-directed

behavior before, during, and after the Spadoni-Petersen murders, his putative

testimony that he committed those killings in a frenzy or trance-like state would

have made no difference to the jury’s verdict at either the guilt or sanity phases.

(Ante, at pp. 44-56.)

Defendant also contends that the evidentiary errors discussed previously

(ante, at pp. 56-66) either singularly or cumulatively prejudiced him at the sanity

phrase and require reversal of the sanity determination. Of the evidentiary claims

by defendant, we have concluded that only the admission of the victims’

expressions of fear of defendant constituted partial error but that, in light of the

overwhelming evidence of his guilt, the error was harmless under either Watson or

Chapman. (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California,

supra, 386 U.S. at p. 29.) As for his remaining claims of evidentiary error, we

found no error, thus eliminating the predicate for prejudice either as a result of

individual error or cumulative error. Alternatively, we found any possible error,

whether individual or cumulative, to be harmless under either Watson or

Chapman. For these reasons, we also reject his argument that he suffered any

prejudice in the sanity phase arising from these claims of evidentiary error.


D. Penalty Phase Issues

1. Effect of Sanity and Guilt Phase Errors

Defendant renews two claims of error from the sanity and guilt phases of

his trial and argues that, if not prejudicial at those stages of the proceeding, they

were prejudicial at the penalty phase. First, he claims that Dr. Wilkinson’s “serial

killer” testimony improperly prejudiced his case in mitigation. Since we have

concluded that the admission of Dr. Wilkinson’s testimony was not error,

defendant was necessarily not prejudiced. But even had we found that the trial

court abused its discretion in admitting the testimony, we would reject defendant’s

claim that such error undermined the reliability of the death verdict. (People v.

Mickle (1991) 54 Cal.3d 140, 197.) Defendant’s long history of violence against

women in his birth family (his sister and mother), his wives or women with whom

he was in a domestic relationship (Alice McGowan, Jane Sanders, Linda Kimball,

Carol Spadoni), the mothers of those women (Isobel Pahls, Eva Petersen),

acquaintances (Marsha Strain, Mary McGovern, Fathyma Vann), and total

strangers (Eileen Millsap, Margie Rogers) was voluminous, graphic and

compelling. In contrast to the evidence in aggravation, the mitigating evidence

was weak. We are not persuaded that labeling defendant a “serial killer” —

assuming only for argument’s sake that this label was in any way inappropriate —

unfairly tipped the scale at the penalty phase.

We also reject defendant’s second claim that the admission of his pretrial

statement to police prejudiced him in the penalty phase because it prevented him

from testifying. Defendant asserts he could have testified to his mental state not

only during the charged crimes, but at the time of the other offenses used as

evidence in aggravation. Again, since we have concluded the statement was

voluntary and its admission was not error, there is no foundation for his claim of


prejudice. Alternatively, we again conclude that, even if its admission was error,

“in light of the whole record, it is not reasonably possible that the jury would have

returned a different penalty verdict but for the assumed error.” (People v. Ervin

(2000) 22 Cal.4th 48, 103.)

2. Evidentiary Error

Defendant contends the trial court erroneously admitted his tape-recorded

description of his desire to sexually assault and murder a woman he saw at a rest

stop as evidence of defendant’s intent during his encounter with Yvette Shelby at

another rest stop. Shelby testified that defendant brandished a gun at her, but then

dropped it, allowing her to escape. She informed a police officer, who stopped

defendant, but the officer was satisfied with defendant’s explanation that he

carried the gun for protection and it had fallen out of his car as he was getting out.

Defendant’s tape recording described another encounter in which he saw a woman

and her child and expressed a desire to rape and kill her and her child. Over

defendant’s Evidence Code section 352 objection, the trial court admitted the

evidence pursuant to Evidence Code section 1101, subdivision (b) as probative of

his intent when he brandished a gun at Shelby.9

On appeal, defendant does not challenge the trial court’s conclusion that the

evidence was relevant to intent, but claims that the trial court should nonetheless

have excluded it under Evidence Code section 352, and that its admission violates

not only that statute, but his federal constitutional rights to due process and a

9 Evidence Code section 1101, subdivision (b) provides an exception to the ban of
character evidence to prove conduct where such evidence is admitted “when
relevant to prove some [other] fact,” including intent. (See People v. Ewoldt
(1994) 7 Cal.4th 380, 404.)


reliable death penalty verdict under the Fourteenth and Eighth Amendments.

Defendant asserts that the jury was incapable of understanding that the tape

recording was admitted only to show intent, and may instead have improperly

considered the incident described in the recording as a separate factor in

aggravation under section 190.3, factor (b).10

Here, the jury was given a limiting instruction in which it was told that

evidence admitted for a limited purpose could not be considered “for any purpose

except the limited purpose for which it was admitted.” We presume that the jury

understood and followed the instructions. (People v. Stitely, supra, 35 Cal.4th at

p. 559.)

Moreover, defendant’s argument flies in the face of the principle that, with

respect to uncharged-violent-crime evidence, a trial court has narrower discretion

under Evidence Code section 352 to exclude such evidence at the penalty phase.

(People v. Karis (1988) 46 Cal.3d 612, 641-642, fn. 21 [although Evid. Code,

§ 352 applies at the penalty phase, “the court does not have discretion to prevent

introduction at the penalty phase of all evidence of a capital defendant’s

commission or attempted commission of a prior violent felony”].) In this case,

defendant brandished a gun at Yvette Shelby, which on its face was admissible as

evidence of criminal activity that involved “the express or implied threat to use

force or violence” under section 190.3, factor (b). But because there was a dispute

as to whether it was a deliberate act or an accidental one, the prosecution was

entitled to present additional evidence relevant to defendant’s intent. While the

10 Section 190.3, factor (b) permits the penalty phase jury to consider “[t]he
presence or absence of criminal activity by the defendant which involved the use
. . . of force or violence or the express or implied threat to use force or violence.”


trial court may have retained some discretion to exclude the intent evidence under

section 352, that discretion was narrower, not greater, than at the guilt phase.

Accordingly, we reject his claim that the trial court abused its discretion

under Evidence Code section 352 in admitting the evidence and, of necessity, the

edifice of constitutional violation he attempts to construct on this claim of error.

3. Prosecutorial Misconduct

Defendant contends that statements made by the prosecutor during his

closing argument constituted prosecutorial misconduct. “When a prosecutor’s

intemperate behavior is sufficiently egregious that it infects the trial with such a

degree of unfairness as to render the subsequent conviction a denial of due

process, the federal Constitution is violated. Prosecutorial misconduct that falls

short of rendering the trial fundamentally unfair may still constitute misconduct

under state law if it involves the use of deceptive or reprehensible methods to

persuade the trial court or the jury.” (People v. Panah, supra, 35 Cal.4th at p.

462.) As a prerequisite for advancing a claim of prosecutorial misconduct, the

defendant is required to have objected to the alleged misconduct and requested an

admonition “unless an objection would have been futile or an admonition

ineffective.” (People v. Arias (1996) 13 Cal.4th 92, 159.) “A defendant claiming

that one of these exceptions applies must find support for his or her claim in the

record. [Citation.] The ritual incantation that an exception applies is not enough.”

(People v. Panah, supra, at p. 462.) “ ‘To prevail on a claim of prosecutorial

misconduct based on remarks to the jury, the defendant must show a reasonable

likelihood the jury understood or applied the complained-of comments in an

improper or erroneous manner.’ [Citation.] ‘Prosecutors have wide latitude to

discuss and draw inferences from the evidence at trial. [Citation.] Whether the


inferences the prosecutor draws are reasonable is for the jury to decide.’ ” (People

v. Wilson (2005) 36 Cal.4th 309, 337.)

While reviewing the testimony of defendant’s sister, Patsy, that defendant

had committed an attempted sexual assault on her when she and defendant were

teenagers, the prosecutor acknowledged that Patsy’s credibility as a witness at

other points of her testimony was suspect, particularly her memory as a three- or

four-year-old that defendant had been sexually molested. He nonetheless argued:

“The only things I would say about that are the things that happened when she was

a teenager, when she was 14 or 15 years old, those memories may well be much

more reliable than memories she thinks she has at the age of three or four. That’s

all I’m going to say about that. [¶] If — you heard her testify about what he did,

you also have the benefit of knowing how he operates with his other victims, if you

believe all that she told you about what he did to her when he was a teenager, that

fact has been proven beyond a reasonable doubt. If you don’t, then simply don’t

consider it.”

Defendant did not object to these statements. On appeal, however, citing

the italicized statement, he claims that the prosecutor committed misconduct by

inviting the jury to use evidence of defendant’s other violent crimes as proof of his

propensity to have assaulted his sister Patsy. (See Evid. Code, § 1101, subd. (a).)

Preliminarily, by failing to object to the argument and seek a curative

admonition, defendant has forfeited the claim. His assertion that an objection and

request for admonition would have been futile because the evidence of the prior

offenses was “intensely provocative” is not persuasive. It would have been a

simple matter, upon proper objection and request, for the trial court to have

admonished the jury not to consider the evidence of those other offenses as proof

that defendant committed the attempted sexual assault on his sister. In any event,


even if we consider the claim on its merits, and assume the italicized statement

was improper, this brief statement did not rise to level of misconduct requiring

reversal. (People v. Brown (2003) 31 Cal.4th 518, 553-554 [reviewing court does

not lightly infer that the jury drew the most damaging, rather than the least

damaging meaning of allegedly improper statement which, in any event, was

“brief and fleeting” and nonprejudicial].)

Defendant also claims the prosecutor committed reversible misconduct

when he referred briefly to Lorena Bobbitt and the Menendez brothers. The

references came in the context of the prosecutor’s discussion of a defense in which

a defendant seeks to depict himself or herself as a victim and thus to deflect

responsibility for his or her conduct. Defense counsel objected to the references to

Bobbitt and the Menendez brothers, but his objection was overruled.

“ ‘In general, prosecutors should refrain from comparing defendants to

historic or fictional villains, especially where the comparisons are wholly

inappropriate or unlinked to the evidence.’ ” (People v. Jones (1997) 15 Cal.4th

119, 180, quoting People v. Bloom (1989) 48 Cal.3d 1194, 1213.) In this case, the

prosecutor did not compare defendant to either Bobbitt or the Menendez brothers,

but referred to them to illustrate a larger point about defenses based on shifting

moral culpability for crimes away from a defendant. Such references were not, in

context, impermissible nor did they constitute misconduct. But even if we found

these brief references were misconduct, we do not assume the jury applied those

references in an erroneous or improper manner or even that it drew the most

damaging meaning from them; reversal is not required. (People v. Brown, supra,

31 Cal.4th at p. 553.)


4. Constitutional Challenges to the Death Penalty Statute

Defendant raises a number of challenges to the death penalty statute

(§ 190.2) that we have considered and consistently rejected in previous decisions.

He provides no persuasive reasons for us to reexamine these conclusions. We

again therefore conclude that: (1) the statute adequately narrows the class of

death-eligible offenders (People v. Stitely, supra, 35 Cal.4th at p. 573; People v.

Panah, supra, 35 Cal.4th at p. 499; People v. Ochoa (1998) 19 Cal.4th 353, 479);

(2) the statute is not unconstitutional because it does not require that the jury find

death is an appropriate penalty beyond a reasonable doubt (People v. Stitely,

supra, 35 Cal.4th at p. 573; People v. Diaz (1992) 3 Cal.4th 495, 569); (3) the

statute is not unconstitutional because it does not require unanimity as to

aggravating factors (People v. Sapp (2003) 31 Cal.4th 240, 316; People v. Bolin

(1998) 18 Cal.4th 297, 335-336; People v. Miranda (1987) 44 Cal.3d 57, 99); and

(4) neither the federal nor state Constitution requires intercase proportionality

review. (People v. Panah, supra, 35 Cal.4th at p. 500; People v. Clark (1993) 5

Cal.4th 950, 1039.)

5. Cumulative Error

Defendant contends the cumulative effect of error during the penalty phase

requires reversal of the death judgment. As previously noted, because he has

demonstrated few errors, and we have already found such errors or possible errors

harmless, either individually or cumulatively, “we likewise conclude that their

cumulative effect does not warrant reversal of the judgment.” (People v. Panah,

supra, 35 Cal.4th at pp. 479-480.)



For the reasons stated, we affirm the judgment.












∗ Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jablonski

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: January 23, 2006

County: San Mateo
Judge: John G. Schwartz


Attorneys for Appellant:

Mark D. Greenberg, under appointment by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Bruce Ortega and Christopher W. Grove, Deputy Attorneys General, for
Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark D. Greenberg
484 Lake Park Avenue
Oakland, CA 94610
(510) 452-3126

Christopher W. Grove
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5967



Opinion Information
Date:Docket Number:
Mon, 01/23/2006S041630

1The People (Respondent)
Represented by Attorney General - San Francisco Office
Christopher W. Grove, Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

2Jablonski, Phillip Carl (Appellant)
San Quentin State Prison
Represented by Mark D. Greenberg
Attorney at Law
484 Lake Park Avenue, PMB 429
Oakland, CA

Jan 23 2006Opinion: Affirmed

Aug 12 1994Judgment of death
Aug 18 1994Filed certified copy of Judgment of Death Rendered
Aug 13 1999Filed:
  Applt's Applic. for appointment of Counsel (Ifp Form).
Mar 1 2000Counsel appointment order filed
  Mark D. Greenberg Is appointed to represent Applt for the direct Appeal.
Apr 27 2000Received letter from:
  Superior Court; dated 4/26/2000, Re Record sent to Applt's Counsel on 3/28/2000.
Jun 27 2000Application for Extension of Time filed
  By Applt to request Corr. of the Record.
Jul 3 2000Extension of Time application Granted
  To 9/1/2000 to applt to request corr. of the record.
Aug 21 2000Counsel's status report received (confidential)
  from atty Greenberg.
Aug 31 2000Application for Extension of Time filed
  By applt to request corr. of the record. (2nd request)
Sep 1 2000Extension of Time application Granted
  To 10/31/2000 to applt to request corr. of the record.
Oct 31 2000Application for Extension of Time filed
  By applt to request corr. of the record. (3rd request)
Nov 1 2000Extension of Time application Granted
  To 1/2/2001 to applt to request corr. of the record.
Dec 28 2000Application for Extension of Time filed
  By applt to request corr. of the record. (4th request)
Jan 4 2001Extension of Time application Granted
  To 3/5/01 to applt to request corr. of the record.
Feb 9 2001Counsel's status report received (confidential)
Feb 28 2001Application for Extension of Time filed
  by applt to request correction of the record. (5th request)
Mar 7 2001Extension of Time application Granted
  To 5/4/2001 to Applt. to request corr. of the record. No further extensions of time contemplated.
May 3 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (6th request)
May 4 2001Extension of Time application Granted
  To 5/14/2001 as to applt. to request corr. of the record. No further extensions of time will be granted.
May 14 2001Received:
  Copy of applt.'s motion to correct the record on appeal. (15 Pp.)
Aug 22 2001Compensation awarded counsel
  Atty Greenberg
Oct 5 2001Counsel's status report received (confidential)
  from atty Greenberg.
Oct 11 2001Counsel's status report received (confidential)
  from atty Greenberg.
Jan 16 2002Note:
  The record on appeal was returned to San Mateo County on 1/11/2002 to correct the following: Paginate and bind the juror questionnaires as a supplemental clerk's transcript.
Mar 11 2002Record on appeal filed
  C-19 (6226 pp.) and R-147 (8527 pp.) including material under seal. Clerk's transcript includes 3522 pp. of juror questionnaires.
Mar 11 2002Appellant's opening brief letter sent, due:
  April 22, 2002.
Apr 19 2002Request for extension of time filed
  To file AOB brief. (1st request)
Apr 23 2002Extension of time granted
  To 6/21/2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inofrm his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of htis schedule, and take all steps necessary to meet this schedule.
May 28 2002Counsel's status report received (confidential)
Jun 3 2002Received:
  proof of service for status report.
Jun 12 2002Compensation awarded counsel
  Atty Greenberg
Jun 21 2002Request for extension of time filed
  To file AOB. (2nd request)
Jun 26 2002Extension of time granted
  To 8/20/2002 to file AOB. The court anticipates that after that date only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
Aug 20 2002Request for extension of time filed
  to file AOB. (3rd request)
Aug 22 2002Filed:
  supplemental declaration in support of request for extension of time to file AOB.
Aug 23 2002Extension of time granted
  to 10-21-2002 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
Sep 11 2002Filed:
  Request by counsel for dual representation appointment.
Sep 20 2002Counsel's status report received (confidential)
Oct 2 2002Counsel appointment order filed
  Attorney Mark D. Greenberg, previously appointed to represent appellant Phillip Carl Jablonski for the direct appeal in the above automatic appeal now pending in this court, is hereby appointed to also represent appellant Phillip Carl Jablonski for habeas corpus/executive clemency proceedings related to the above automatic appeal.
Oct 2 2002Compensation awarded counsel
  Atty Greenberg
Oct 21 2002Request for extension of time filed
  To file appellant's opening brief. (4th request)
Oct 24 2002Extension of time granted
  To 12/20/2002 to file appellant's opening brief. The court anticipates that after that date, only two further extensions sotaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 4 2002Counsel's status report received (confidential)
Dec 19 2002Request for extension of time filed
  to file AOB. (5th request)
Dec 19 2002Compensation awarded counsel
  Atty Greenberg
Dec 23 2002Extension of time granted
  To 2/18/2003 to file appellant's opening brief. 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 attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 18 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Feb 20 2003Extension of time granted
  to 4-16-2003 to file AOB. After that date, only one further extension totaling about 15 additional days will be granted. Extension granted based upon counsel Mark Greenberg's representation that he anticipates filing the brief by 4-30-2003.
Apr 14 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Apr 16 2003Extension of time granted
  to 4/30/2003 to file appellant's opening brief. Extension is granted based upon counsel Mark D. Greenberg's representation that he anticipates filing that brief by 4/30/2003. After that date, no further extension will be granted.
Apr 21 2003Appellant's opening brief filed
  (234 pp.)
Apr 29 2003Counsel's status report received (confidential)
May 6 2003Compensation awarded counsel
  Atty Greenberg
May 15 2003Request for extension of time filed
  to file respondent's brief. (1st request)
May 16 2003Extension of time granted
  to 7/21/2003 to file respondent's brief.
Jul 17 2003Request for extension of time filed
  to file respondent's brief. (2nd request)
Jul 23 2003Extension of time granted
  to 9-19-2003 to file respondent's brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Sep 17 2003Request for extension of time filed
  to file respondent's brief. (3rd request)
Sep 24 2003Extension of time granted
  to 11/18/2003 to file respondent's brief. The court anticipates that after date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Sep 26 2003Motion filed (in AA proceeding)
  Respondent's "Motion for Order Directing the Superior Court to Cause People's Exhibit No. 200 (Key Chain) to be Photographed and Safely Returned to the Victim's Surviving Daughter."
Oct 2 2003Note:
  received voicemail message from attorney Greenberg advising he does not oppose respondent's motion (filed on 9-26-2003).
Oct 15 2003Order filed
  Respondent's "Motion for Order Directing the Superior Court to Cause People's Exhibit No. 200 (Key Chain) to Be Photographed and Safely Returned to the Victim's Surviving Daughter," filed on September 26, 2003, is granted. The Attorney General, at his own expense, is directed to cause to be prepared a complete photographic record of People's Exhibit No. 200 (key chain) in People v. Phillip Carl Jablonski, San Mateo County Superior Court Case No. SC26601, in the presence of the Clerk of the San Mateo County Superior Court, by a person who is not a party or attorney of a party. The Attorney General is further directed to deliver to the Clerk of the San Mateo County Superior Court a copy and negative of the photograph of People's Exhibit No. 200 and a declaration by the person making the photographic record that the copy and negative of the photograph delivered to the clerk constitute a true, unaltered, and unretouched print of the photographic record taken in the presence of the clerk. The Clerk of the San Mateo County Superior Court is directed to certify the photographic record as such without charge. The Clerk of the San Mateo County Superior Court is further directed (1) to send a copy of the photograph to the Attorney General and counsel for appellant, and (2) to return People's Exhibit No. 200 to Yolanda Robinson, the victim's surviving daughter. Baxter, J., was absent and did not participate.
Nov 19 2003Request for extension of time filed
  to file respondent's brief. (4th request)
Nov 25 2003Respondent's brief filed
  (207 pp.)
Nov 25 2003Extension of time granted
  to 12/18/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Christopher W. Grove's representation that he anticipates filing that brief by 12/18/2003. After that date, no further extension is contemplated.
Dec 12 2003Request for extension of time filed
  to file appellant's reply brief. (1st request)
Dec 17 2003Extension of time granted
  to 2/13/2004 to file appellant's reply brief.
Dec 29 2003Counsel's status report received (confidential)
Jan 5 2004Compensation awarded counsel
  Atty Greenberg
Feb 13 2004Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Feb 20 2004Extension of time granted
  to 4/13/2004 to file appellant's reply brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension is granted based upon counsel Mark D. Greenberg's representation that he anticipates filing that brief by 6/30/2004.
Mar 23 2004Counsel's status report received (confidential)
Apr 12 2004Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Apr 15 2004Extension of time granted
  to 6/11/2004 to file appellant's reply brief. After that date, only one further extension totaling about 20 additional days will be granted. Extension is granted based upon counsel Mark D. Greenberg's representation that he anticipates filing that brief by 6/30/2004.
Apr 21 2004Compensation awarded counsel
  Atty Greenberg
May 24 2004Counsel's status report received (confidential)
Jun 11 2004Request for extension of time filed
  to file reply brief. (4th request)
Jun 15 2004Extension of time granted
  to 7/2/2004 to file appellant's reply brief. Extension is granted based upon counsel Mark D. Greenberg's representation that he anticipates filing that brief by 7/2/2004. After that date, no further extension will be granted.
Jun 18 2004Appellant's reply brief filed
  (32,477 words; 105 pp.)
Jan 7 2005Counsel's status report received (confidential)
Mar 7 2005Counsel's status report received (confidential)
May 9 2005Counsel's status report received (confidential)
Jun 15 2005Compensation awarded counsel
  Atty Greenberg
Jul 8 2005Counsel's status report received (confidential)
Aug 31 2005Related habeas corpus petition filed (concurrent)
  no. S136861
Sep 2 2005Filed:
  Declaration of attorney Mark D. Greenberg (confidential).
Sep 7 2005Compensation awarded counsel
  Atty Greenberg
Sep 19 2005Oral argument letter sent
  advising that case could be scheduled for oral argument as early as the November calendar, to be held the week of November 7, 2005 in Sacramento. 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.
Oct 7 2005Compensation awarded counsel
  Atty Greenberg
Oct 12 2005Case ordered on calendar
  11-09-05, 1:30 p.m., in Sacramento
Oct 17 2005Filed:
  Letter from Christopher W. Grove, Deputy Attorney General, stipulating to Justice Kennard's participation in the case even though she will be absent from 11/09/2005 oral argument.
Oct 17 2005Filed:
  Focus issues letter from Mark D. Greenberg, counsel for Jablonski, including stipulation to Justice Kennard's participation in this case even though she will be absent from 11/09/2005 oral argument.
Nov 9 2005Cause argued and submitted
Jan 23 2006Opinion filed: Judgment affirmed in full
  Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, & Davis (CA 3 assigned) J.J.
Feb 2 2006Compensation awarded counsel
  Atty Greenberg
Feb 7 2006Rehearing petition filed
  by appellant. (816 words; 5 pp.)
Feb 8 2006Time extended to consider modification or rehearing
  to 4/21/2006 or the date uopn which rehearing is either granted or denied, whichever occurs first.
Mar 15 2006Rehearing denied
  George, C.J., was absent and did not participate.
Mar 15 2006Remittitur issued (AA)
Mar 20 2006Received:
  acknowledgment of receipt of remittitur.
Mar 29 2006Order filed (150 day statement)
Jun 12 2006Received:
  copy of appellant's petition for writ of certiorari (16 pp. excluding appendix)
Jun 21 2006Received:
  letter from U.S.S.C., dated June 16, 2006, advising petition for writ of certiorari filed on June 9, 2006 as No. 05-11554.
May 15 2007Habeas funds request filed (confidential)
Jun 13 2007Order filed re habeas funds request (confidential)
  re: request filed on May 15, 2007.

Apr 21 2003Appellant's opening brief filed
Nov 25 2003Respondent's brief filed
Jun 18 2004Appellant's reply brief filed
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