Filed 1/23/06
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S041630
v.
PHILLIP CARL JABLONSKI,
San
Mateo
County
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.
I. FACTS
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.
2
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
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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)
hospital.
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
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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
felon.
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
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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
6
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
account.
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
7
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.
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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
paralyzing.”
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
9
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
10
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
11
attributed the rape of Sanders and the later rape to defendant’s response to female
rejection.
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.”
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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
13
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”
14
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
defense.
15
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
16
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
17
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
children.
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
complied.
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
18
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
functioning.
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
19
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
20
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
Vann.
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
21
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
22
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
23
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
24
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
25
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.
26
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
life.
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
27
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.
II. DISCUSSION
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.
28
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
29
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
30
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
prosecution.
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.”
31
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
32
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
Arcega]).
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
33
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-
950.)
34
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
35
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
proceedings.
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
36
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
37
discretion by admitting the tape nor did the admission of the tape violate due
process.
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.
38
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.)
39
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.
40
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
assist.
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.
41
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
42
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
43
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
44
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
45
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
46
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
47
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,
48
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
49
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.
50
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
51
[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
52
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
53
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.
54
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
55
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
56
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
57
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
58
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
59
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.
60
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.
61
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
62
“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
63
(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
64
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.
65
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
66
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.
67
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
68
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
69
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
70
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.
Arizona (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.
71
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,
72
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
Association.
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
73
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.
74
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
75
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.
76
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.
77
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
78
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.)
79
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.”
80
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
81
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,
82
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.)
83
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.)
84
IV. DISPOSITION
For the reasons stated, we affirm the judgment.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
DAVIS,
J.∗
∗ 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.
85
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. S041630
Date Filed: January 23, 2006
__________________________________________________________________________________
Court: Superior
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
87
88
Opinion Information
| Date: | Docket Number: |
| Mon, 01/23/2006 | S041630 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Christopher W. Grove, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Jablonski, Phillip Carl (Appellant) San Quentin State Prison Represented by Mark D. Greenberg Attorney at Law 484 Lake Park Avenue, PMB 429 Oakland, CA |
| Disposition | |
| Jan 23 2006 | Opinion: Affirmed |
| Dockets | |
| Aug 12 1994 | Judgment of death |
| Aug 18 1994 | Filed certified copy of Judgment of Death Rendered 8-12-94. |
| Aug 13 1999 | Filed: Applt's Applic. for appointment of Counsel (Ifp Form). |
| Mar 1 2000 | Counsel appointment order filed Mark D. Greenberg Is appointed to represent Applt for the direct Appeal. |
| Apr 27 2000 | Received letter from: Superior Court; dated 4/26/2000, Re Record sent to Applt's Counsel on 3/28/2000. |
| Jun 27 2000 | Application for Extension of Time filed By Applt to request Corr. of the Record. |
| Jul 3 2000 | Extension of Time application Granted To 9/1/2000 to applt to request corr. of the record. |
| Aug 21 2000 | Counsel's status report received (confidential) from atty Greenberg. |
| Aug 31 2000 | Application for Extension of Time filed By applt to request corr. of the record. (2nd request) |
| Sep 1 2000 | Extension of Time application Granted To 10/31/2000 to applt to request corr. of the record. |
| Oct 31 2000 | Application for Extension of Time filed By applt to request corr. of the record. (3rd request) |
| Nov 1 2000 | Extension of Time application Granted To 1/2/2001 to applt to request corr. of the record. |
| Dec 28 2000 | Application for Extension of Time filed By applt to request corr. of the record. (4th request) |
| Jan 4 2001 | Extension of Time application Granted To 3/5/01 to applt to request corr. of the record. |
| Feb 9 2001 | Counsel's status report received (confidential) |
| Feb 28 2001 | Application for Extension of Time filed by applt to request correction of the record. (5th request) |
| Mar 7 2001 | Extension of Time application Granted To 5/4/2001 to Applt. to request corr. of the record. No further extensions of time contemplated. |
| May 3 2001 | Application for Extension of Time filed By applt. to request corr. of the record. (6th request) |
| May 4 2001 | Extension 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 2001 | Received: Copy of applt.'s motion to correct the record on appeal. (15 Pp.) |
| Aug 22 2001 | Compensation awarded counsel Atty Greenberg |
| Oct 5 2001 | Counsel's status report received (confidential) from atty Greenberg. |
| Oct 11 2001 | Counsel's status report received (confidential) from atty Greenberg. |
| Jan 16 2002 | Note: 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 2002 | Record 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 2002 | Appellant's opening brief letter sent, due: April 22, 2002. |
| Apr 19 2002 | Request for extension of time filed To file AOB brief. (1st request) |
| Apr 23 2002 | Extension 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 2002 | Counsel's status report received (confidential) |
| Jun 3 2002 | Received: proof of service for status report. |
| Jun 12 2002 | Compensation awarded counsel Atty Greenberg |
| Jun 21 2002 | Request for extension of time filed To file AOB. (2nd request) |
| Jun 26 2002 | Extension 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 2002 | Request for extension of time filed to file AOB. (3rd request) |
| Aug 22 2002 | Filed: supplemental declaration in support of request for extension of time to file AOB. |
| Aug 23 2002 | Extension 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 2002 | Filed: Request by counsel for dual representation appointment. |
| Sep 20 2002 | Counsel's status report received (confidential) |
| Oct 2 2002 | Counsel 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 2002 | Compensation awarded counsel Atty Greenberg |
| Oct 21 2002 | Request for extension of time filed To file appellant's opening brief. (4th request) |
| Oct 24 2002 | Extension 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 2002 | Counsel's status report received (confidential) |
| Dec 19 2002 | Request for extension of time filed to file AOB. (5th request) |
| Dec 19 2002 | Compensation awarded counsel Atty Greenberg |
| Dec 23 2002 | Extension 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 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Feb 20 2003 | Extension 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 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Apr 16 2003 | Extension 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 2003 | Appellant's opening brief filed (234 pp.) |
| Apr 29 2003 | Counsel's status report received (confidential) |
| May 6 2003 | Compensation awarded counsel Atty Greenberg |
| May 15 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
| May 16 2003 | Extension of time granted to 7/21/2003 to file respondent's brief. |
| Jul 17 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Jul 23 2003 | Extension 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 2003 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Sep 24 2003 | Extension 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 2003 | Motion 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 2003 | Note: received voicemail message from attorney Greenberg advising he does not oppose respondent's motion (filed on 9-26-2003). |
| Oct 15 2003 | Order 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 2003 | Request for extension of time filed to file respondent's brief. (4th request) |
| Nov 25 2003 | Respondent's brief filed (207 pp.) |
| Nov 25 2003 | Extension 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 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Dec 17 2003 | Extension of time granted to 2/13/2004 to file appellant's reply brief. |
| Dec 29 2003 | Counsel's status report received (confidential) |
| Jan 5 2004 | Compensation awarded counsel Atty Greenberg |
| Feb 13 2004 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Feb 20 2004 | Extension 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 2004 | Counsel's status report received (confidential) |
| Apr 12 2004 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Apr 15 2004 | Extension 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 2004 | Compensation awarded counsel Atty Greenberg |
| May 24 2004 | Counsel's status report received (confidential) |
| Jun 11 2004 | Request for extension of time filed to file reply brief. (4th request) |
| Jun 15 2004 | Extension 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 2004 | Appellant's reply brief filed (32,477 words; 105 pp.) |
| Jan 7 2005 | Counsel's status report received (confidential) |
| Mar 7 2005 | Counsel's status report received (confidential) |
| May 9 2005 | Counsel's status report received (confidential) |
| Jun 15 2005 | Compensation awarded counsel Atty Greenberg |
| Jul 8 2005 | Counsel's status report received (confidential) |
| Aug 31 2005 | Related habeas corpus petition filed (concurrent) no. S136861 |
| Sep 2 2005 | Filed: Declaration of attorney Mark D. Greenberg (confidential). |
| Sep 7 2005 | Compensation awarded counsel Atty Greenberg |
| Sep 19 2005 | Oral 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 2005 | Compensation awarded counsel Atty Greenberg |
| Oct 12 2005 | Case ordered on calendar 11-09-05, 1:30 p.m., in Sacramento |
| Oct 17 2005 | Filed: 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 2005 | Filed: 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 2005 | Cause argued and submitted |
| Jan 23 2006 | Opinion 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 2006 | Compensation awarded counsel Atty Greenberg |
| Feb 7 2006 | Rehearing petition filed by appellant. (816 words; 5 pp.) |
| Feb 8 2006 | Time 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 2006 | Rehearing denied George, C.J., was absent and did not participate. |
| Mar 15 2006 | Remittitur issued (AA) |
| Mar 20 2006 | Received: acknowledgment of receipt of remittitur. |
| Mar 29 2006 | Order filed (150 day statement) |
| Jun 12 2006 | Received: copy of appellant's petition for writ of certiorari (16 pp. excluding appendix) |
| Jun 21 2006 | Received: 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 2007 | Habeas funds request filed (confidential) |
| Jun 13 2007 | Order filed re habeas funds request (confidential) re: request filed on May 15, 2007. |
| Briefs | |
| Apr 21 2003 | Appellant's opening brief filed |
| Nov 25 2003 | Respondent's brief filed |
| Jun 18 2004 | Appellant's reply brief filed |
