Docket No. S015384
People v. Letner & Tobin
Filed 7/29/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S015384
v.
RICHARD LACY LETNER and
CHRISTOPHER ALLAN TOBIN,
Tulare County
Defendants and Appellants.
Super. Ct. No. 26592
Defendants Richard Lacy Letner and Christopher Allan Tobin were convicted of
first degree murder (Pen. Code, § 187),1 burglary (§ 459), robbery (§§ 211, 212.5),
attempted rape (§§ 664, 261, subd. (2)), and theft of an automobile (Veh. Code, § 10851,
subd. (a)), arising from the murder of Ivon Pontbriant in her home in Visalia, California
on March 1, 1988. As to each defendant, the jury found true three special circumstance
allegations — that the murder was committed in the course of the burglary, attempted
rape, and robbery (§ 190.2, subd. (a)(17)(A), (C), (G)) — and returned a verdict of death.
The trial court, having denied defendants‟ motions for new trial and the automatic
applications to modify the verdicts (§ 190.4, subd. (e)), sentenced defendants to death and
to consecutive prison terms of six years eight months for the noncapital offenses. This
1
All further statutory references are to the Penal Code unless otherwise indicated.
1
appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment as to each defendant in
its entirety.
I. FACTS
A. Guilt Phase
1. Prosecution Evidence
Ivon Pontbriant, then 59 years of age, lived with Walter Gilliland, with whom she
was romantically involved, in a residence located at 804 North Jacob Street in Visalia in
Tulare County. On Wednesday, March 2, 1988, Ted and Ida Blevins, Pontbriant‟s
parents, became concerned because Ivon had not telephoned them as she had planned.
That evening, the Blevins contacted Pontbriant‟s cousin, Jack Cantrell, and with him
went to the house on North Jacob Street. After they knocked on the door without
receiving any response, Cantrell looked through a window and saw Pontbriant sprawled
on the floor of the living room.
When the police arrived, they found Pontbriant‟s body lying facedown in a pool of
blood on the floor between a couch and a coffee table. She was unclothed except for her
socks and a brassiere that was pulled down to her waist. Her hands were tied behind her
back with a telephone cord that also was looped around her neck. The cord was tied
tightly enough to have made ligature marks upon her neck and wrists. A large, deep cut
on the back of her neck had severed her spinal cord and lacerated several blood vessels
including the right carotid artery, causing her death. Death from the severed spinal cord
could have been essentially instantaneous; she would have bled to death within minutes.
Pontbriant also had suffered three stab wounds to her neck — two on the left and one on
the right — that narrowly missed her blood vessels, and three superficial lacerations on
the right side of the neck. Had these other wounds severed Pontbriant‟s carotid arteries,
she would have lost consciousness almost immediately, and would have died within
minutes. Pontbriant‟s face had sustained severe blunt force trauma, as though she
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repeatedly had been kicked or punched in the face while alive, and there were defensive
wounds on her arms. Portions of her hair had been ripped out of her head. A Heineken
beer bottle, which had fecal matter on it, was wedged between Pontbriant‟s buttocks, near
her genitals. A pile of clothing found in the living room included a pair of pants and
underwear that also had fecal matter on them, and a sweater that appeared to have been
cut or ripped open. There was no blood on the clothing. Several hairs were found on
Pontbriant‟s chest.
An ashtray on the coffee table contained several Marlboro and Camel cigarette
butts and a Lowenbrau beer bottle cap. The top of the coffee table had a cut that could
have been made by stabbing a knife into it. Nearby was a photograph of Pontbriant with
a hole in it that matched the cut in the table. Two of Pontbriant‟s purses were on the
floor; the entire contents of one purse had been dumped on the floor, and the contents of
the other purse, which contained Pontbriant‟s checkbook, had been only partially
removed. The checkbook did not contain any money, but more than $18 in bills and
change were found at the bottom of the purse. The kitchen area appeared to have been
wiped down, and in the bathroom was a washrag that appeared to have had blood on it
and had been rinsed. A distinctive wine bottle opener of a type sold at a local liquor store
was on the kitchen counter. Gilliland testified that he never had seen the bottle opener in
the house. In the bedroom, which was in disarray, the police found a blue baseball cap,
blood smears on a pillow on the bed and on a doily on the dresser, and semen stains on
the carpet. Pontbriant‟s automobile, a red and white Ford Fairmont, was missing. A quilt
that Pontbriant used to cover the front seat of her car was found on a bush near the
location where the passenger‟s side door would be when the car was parked in the
driveway. Gilliland testified that Pontbriant was very protective of her car; very rarely
would she allow anyone else to drive it.
Gilliland testified that three days earlier, on the morning of Sunday, February 28,
1988, defendants drove to the Jacob Street residence in a car they said belonged to
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Tobin‟s girlfriend. For somewhat more than a month prior to that Sunday, Letner had
worked for Gilliland two or three days a week helping him repair appliances in the garage
behind the house. Gilliland and Pontbriant had befriended Letner; Pontbriant told people
that he reminded her of her son. On that Sunday morning, defendants gave Pontbriant
and Gilliland a bottle of Kahlua liqueur and a couple of cartons of Marlboro cigarettes.
Defendants went inside the house and had coffee with Pontbriant and Gilliland. In
defendants‟ presence, Gilliland mentioned that he was planning to go to Modesto to visit
his family. Pontbriant reminded him that the rent was due soon, and Gilliland gave her
approximately $340 in cash. She placed the cash in her checkbook and put the
checkbook inside her purse. Defendants left after approximately one hour.
Letner and Tobin were longstanding, very close friends. They had known each
other for several years while attending high school in the City of Napa, California.
Sometime during 1984, Tobin moved to Visalia, where he met and became romantically
involved with Jeanette Mayberry. Tobin and Mayberry lived in a residence at 248 South
Crenshaw Street, which they shared with Darlene Jolly and Mike Kinnett. Letner also
stayed at the house for approximately one month. Sometime during 1986, Tobin and
Mayberry moved to an apartment at 301 East Murray Street, and Letner later joined them.
After relocating to a different apartment in the building on Murray Street, in March of
1987 the three moved to an apartment on Stevenson Street. Mayberry was pregnant with
Tobin‟s child and gave birth in May of that year. Soon after the baby was born, Letner
moved back to the Murray Street apartment. A couple of months later, Tobin also moved
back to Murray Street, while Mayberry moved to an apartment at 720 North Bridge
Street. Mayberry testified that she and Tobin separated because of Letner‟s interference
with their relationship. Tobin and Mayberry continued to see each other, however, and in
December 1987, Tobin moved to the Bridge Street apartment.
In May 1987, Tobin had begun working for a company that manufactured
prefabricated buildings. Letner started working for the same company in June.
4
Defendants were laid off near the beginning of 1988, however, and had no steady
employment after that time. Defendants, who did not own a car, occasionally borrowed
Mayberry‟s car to get around. On Sunday, February 28, 1988, Mayberry lent defendants
her vehicle to attend a local swap meet in order to attempt to sell various items. When
Letner returned the car that afternoon, he told Mayberry that Tobin was meeting with
Tobin‟s ex-wife at a nearby park. Mayberry was angered by this report, and twice
confronted Tobin and his ex-wife that day. At one point Mayberry angrily threw away
the engagement ring Tobin had given her.
On the next day, Monday, February 29, 1988, Mayberry returned to her apartment
and discovered that the bedroom window was broken. She suspected that Tobin had
broken the window in order to enter the apartment, because she had removed his house
key from his key ring after their quarrels on the previous day. Within a few moments,
Tobin (who was intoxicated) and Letner arrived at the apartment. Tobin and Mayberry
began to argue, and Tobin struck her and pulled out some of her hair. Letner yelled
insults at Mayberry and encouraged Tobin to continue to strike her. After Mayberry
managed to get away from Tobin, she ran to an upstairs apartment. The neighbors
admitted her and called the police. When the neighbors informed defendants that the
police had been summoned, Tobin broke the living room windows of Mayberry‟s
apartment, retrieved his shotgun, and used it to break the windows of her car in the
parking lot. He then reentered the apartment, obtained his ornamental sword, and
departed with Letner. Tobin returned to the apartment the next day to search for his
driver‟s license and to apologize to Mayberry. Mayberry did not accept Tobin‟s apology
and left. Mayberry returned to the apartment the following day, Tuesday, after the
windows had been repaired. Tobin‟s personal belongings were still there. Mayberry
believed Tobin would return and they would reconcile; he had not mentioned anything
regarding moving away.
5
Meanwhile, also on Sunday, February 28, Gilliland and Pontbriant had a
disagreement, and Gilliland decided to leave for Modesto. He arranged to meet his son at
a motel, so that his son could drive him to Modesto. Gilliland‟s son picked him up early
the next morning, and they drove to the residence on Jacob Street. Gilliland testified that
he retrieved several items, including a toolbox and a puppy, and that Pontbriant was
asleep while he was at the house. Gilliland‟s son drove with Gilliland to Modesto and
dropped him off at his ex-wife‟s house.
Marilyn Reid testified that on Sunday evening, Gilliland appeared with a suitcase
at the Break Room Bar in Visalia. Letner, who already was there, talked and drank beer
with Gilliland; later, they departed at the same time.
On Tuesday March 1, 1988, Pontbriant drove her friend Flourene Gentry to shop
for groceries, as she always did on the first of the month. Later that evening, Pontbriant
telephoned Gentry three times, telling her that she (Pontbriant) was concerned because
Gilliland had not returned, and a person who had purchased a stove from Gilliland had
come by the residence to complain. Gentry testified that during the third telephone call,
at approximately 9:30 p.m., Pontbriant told her that two individuals, one of whom
reminded her of her son, had just arrived and were entering her house, and everything
would be all right. Pontbriant also mentioned that she was “feeling no pain.”
On that Tuesday evening, Marilyn Reid saw defendants drinking together at the
Break Room. They departed together sometime between 7:30 p.m. and 9:30 p.m.
Frank‟s Liquors was located directly across the street from the Break Room. A clerk at
the liquor store, who recognized defendants because they were frequent customers of the
store, was working one night (which he could identify only as a night in March 1988),
when one of the two defendants purchased a six-pack of Heineken beer, a bottle of
inexpensive wine, and a distinctive wine bottle opener of the type later found at
Pontbriant‟s house. The same person returned later that night and bought a six-pack of
Lowenbrau beer.
6
Later that Tuesday evening, Pontbriant and Letner made a series of angry
telephone calls to Edward Burdette and his common-law wife, Kathy Coronado.
Pontbriant accused Burdette of helping Gilliland take the dog and a toolbox that
apparently belonged to Letner. Letner threatened to “kick [Gilliland‟s] ass” and to harm
Burdette if Letner‟s tools were not returned. In the later calls, Pontbriant became
increasingly upset, and at one point, while crying, told Coronado that “He will hurt me” if
the tools were not returned. Because the calls were obscene and threatening, Burdette
and Coronado ultimately unplugged their telephone.
On the same night at approximately midnight, Visalia Police Officer Alan
Wightman was in his patrol car when he observed a red and white Ford Fairmont
automobile at a stop sign on Garden Street. The car was facing south, and the driver
turned east on Main Street in front of the patrol car. Officer Wightman followed in his
vehicle. The car turned south on Bridge Street, west on Mineral King Avenue, and then
continued west onto state Highway 198. Officer Wightman conducted a vehicle stop.2
Letner was driving the car and Tobin was in the front passenger seat. Letner told the
officer that he had borrowed the car from the owner, Ivon Pontbriant, in order to drive
Tobin home. Tobin separately told the officer they were going to his home on South
Crenshaw Street, where he resided with a woman named Jeanette. Letner did not have a
driver‟s license, and there was no registration card in the vehicle. Letner said that
Pontbriant lived on North Jacob Street, but that he did not know the exact address or her
telephone number. Officer Wightman provided a police dispatcher with Pontbriant‟s
name, but obtained only her post office box and prior address.
2
The trial court denied defendants‟ pretrial motions challenging the legality of the
vehicle stop. Officer Wightman testified at the suppression hearing that initially he
suspected the car might have been stolen, and later suspected the driver might have been
intoxicated. Officer Wightman‟s explanation for the stop was not presented to the jury.
We address defendants‟ renewed challenges to the traffic stop post, in part II.A.3.
7
At the time the officer approached the vehicle, he noticed a six-pack container
with four unopened green bottles located behind the front passenger‟s seat. After Tobin
got out of the car, Officer Wightman saw an opened bottle half filled with beer under
Tobin‟s seat. He also conducted a brief search of the trunk of the vehicle for any other
open containers of alcoholic beverages. Officer Wightman conducted a patdown of
Letner and found a folding pocketknife in Letner‟s pants pocket, which the officer
temporarily confiscated while questioning defendants. Because Letner smelled as if he
had been consuming an alcoholic beverage, Officer Wightman conducted a series of
sobriety tests. Officer Wightman determined that Letner was not under the influence of
alcohol to the degree that his driving was illegal, and therefore the officer merely issued a
citation for driving without a license. Nonetheless, because Tobin appeared not to be in a
condition to drive, Officer Wightman told defendants to lock the vehicle and continue on
foot. Defendants walked west along the highway. Officer Wightman noticed that
Pontbriant‟s vehicle remained parked alongside the highway when he drove past on his
way home Wednesday at 4:00 a.m., and also when he returned to work at 5:30 p.m. that
evening.
Upon receiving the report of Pontbriant‟s murder, Officer Wightman contacted the
investigating officers and guided them to her car, which subsequently was impounded
and searched. The items found in the trunk, which included several bags, some clothing,
and a sword, appeared to be the same items that were in the trunk the previous night
when Officer Wightman conducted a brief search for open containers of alcohol. Tobin‟s
shotgun, which Officer Wightman did not remember seeing earlier, also was found in the
trunk. After the vehicle was impounded, a more thorough search was conducted during
which the police also found on the floor of the car a white rag that had blood on it. One
Heineken and three Lowenbrau beer bottles, all unopened, were found behind the
passenger‟s seat. The opened bottle that had been under the seat was a Heineken bottle
as well.
8
At approximately 4:00 a.m. on Wednesday, March 2, 1988, Pamela Loop heard
her dogs barking and then noticed two men in her front yard. One of the men said that
John Novotny was supposed to give them a ride to work and asked where he resided.
Loop told the men that Novotny‟s house was behind hers, and they began walking in that
direction. Loop telephoned the Novotny residence, and told Denise Novotny, who was
awakened by Loop‟s telephone call, that two men were on the way to her house. At the
same time, Novotny observed the shadow of a person approaching her front door. She
looked out of the window and saw Letner, whom she recognized from picnics hosted by
the company that had employed her husband and defendants. After Novotny stepped
outside, Letner told her they wanted John to give them a ride to work. Novotny
responded that Letner should have known John was out of town on a work assignment.
Letner told her they believed John might have returned early. Another man asked
Novotny whether she could give them a ride to work, and offered to give her money for
the cost of gasoline.3 When Novotny refused, the man became more insistent, and said it
was an “emergency.” Novotny continued to say she could not drive them. Eventually,
Letner looked at the other man, appeared to make a decision, and said, “Okay, that‟s
fine.” The men then departed.
On March 3, 1988, Letner made a collect telephone call from Reno, Nevada, to his
grandmother in Council Bluffs, Iowa, and told her he was coming to Iowa to seek
employment. Despite her urging to the contrary, on March 6 Letner and Tobin arrived in
Council Bluffs. They told her they had hitchhiked from Reno, and had been robbed of all
3
Novotny could not see the other man during the conversation. Novotny believed
he was Tobin, based upon her husband‟s description of him, his profile as he turned to
leave, and defendants‟ reputation for always being together. At trial, however, Novotny
was unable to identify Tobin positively as the other man.
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their belongings on the way. Letner‟s grandfather gave them some clothes, drove them to
the Iowana Motel, and paid for one week‟s rental of a room on their behalf.
Earl Bothwell, who then was staying at the Iowana, met defendants there.
Bothwell, who owned a contracting business, hired Tobin to perform some work for him.
At some point, defendants mentioned that they were wanted for murder in California, and
asked Bothwell if he could assist them in obtaining false identification. When Bothwell
later asked Letner what had happened, Letner explained that he had stolen $12 or $14 and
a red and white Ford vehicle from a woman. Letner stated he would have driven the car
to Iowa, had the police not stopped him for driving erratically or too slowly. During this
conversation, Tobin entered the room, and when Bothwell asked whether he was wanted
for murder, Tobin replied, “Yeah, I killed the old bitch” because she was yelling and
threatening to call the police. Tobin confirmed they had taken approximately $12 to $13
from her. Bothwell told Tobin he had no work for Tobin that day.
During the early morning hours of the following day, the police responded to a
report of a disturbance at the Iowana Motel involving defendants and Bothwell.
Discovering defendants‟ outstanding murder warrants, the police arrested them. At the
time of his arrest, Letner had in his pocket a “buck” knife that appeared to be the same as
the one seen by Officer Wightman on the night of the murder. Jeanette Mayberry
testified that Letner regularly carried that knife with him.
Investigators from Tulare County arrived in Iowa and returned with Tobin to
California. A private extradition company was hired to escort Letner to California.
While in Texas, however, Letner escaped by stealing the van in which he and several
other prisoners were being transported. More than one week later, Letner, who was
driving a stolen pickup truck, was arrested at a border patrol checkpoint after providing
the checkpoint officer with a known alias recorded in information pertaining to wanted
persons. The Tulare County investigators then transported Letner back to California.
While in jail awaiting trial, Tobin told another inmate, Gregory Garrard, that of all the
10
evidence against him, Tobin was most concerned about a bloody rag found in
Pontbriant‟s car.
At trial, Jeanette Mayberry identified, as belonging to defendants, most of the
items found in the trunk of Pontbriant‟s car. The items included three bags of stolen
cosmetics and hair care products, all belonging to Letner. Mayberry also identified as
belonging to Letner the blue baseball cap found in the bedroom of Pontbriant‟s house.
Mayberry testified that Letner usually smoked Camel cigarettes, but that Tobin did not
smoke.
At the time of her death, Pontbriant‟s blood-alcohol content was .29 percent.
Based upon the lividity of her body, it was estimated she had been killed late on the
evening of Tuesday, March 1. Three of the hairs found on Pontbriant‟s chest matched
hair samples obtained from Letner. Two of these hairs appeared to have blood on them,
and to have been forcibly removed from his head. Two of the other hairs found on
Pontbriant‟s chest could have been “fringe hairs,” meaning they would have come from
an area near the pubic region of the donor, but these hairs were not sufficiently distinct to
confirm their type or source. The other hairs found on or near Pontbriant‟s body were not
of human origin, or matched Pontbriant‟s hair, or could not be identified. Many of the
hairs belonging to Pontbriant had been forcibly removed. Six hairs found inside the blue
baseball cap recovered from the bedroom also matched Letner‟s hair. The blood on the
pillowcase and on the doily recovered from Pontbriant‟s bedroom, and the blood on the
rag found in her car, was consistent with both Tobin‟s and Gilliland‟s blood type. The
semen stains found on the carpet of the bedroom manifested antigenic activity, and
therefore were consistent with Tobin‟s having deposited them, because he was a
“secretor” of blood antigens in his bodily fluids. It could not be confirmed, however,
whether the semen contained the same antigen that Tobin secreted, nor when the semen
had been deposited. Letner and Gilliland were not secretors.
11
The cuts in the coffee table and the photograph could have been made by Letner‟s
buck knife. In addition, that knife could have inflicted the stab wounds to the side of
Pontbriant‟s neck, but the probability was that a larger knife had been used to render the
fatal cutting wound to the back of her neck.
2. Defense Evidence
In their defenses, both defendants attempted primarily to discredit the witnesses
who had provided incriminating evidence during the prosecution‟s case. Defendants also
presented experts whose opinions concerning the forensic evidence conflicted with the
opinions of the prosecution‟s experts. In addition, Tobin testified in his own defense,
essentially to the effect that he and Letner were both present at Pontbriant‟s house on the
night of the murder, but he (Tobin) left earlier than Letner, and when Tobin departed,
Pontbriant had not been harmed.
a. Evidence Concerning Walter Gilliland
Jerry Gilliland, Walter Gilliland‟s son from his prior marriage, testified that a few
minutes after he and his father stopped at the Jacob Street residence on the way to
Modesto, he heard a woman yelling loudly, and what sounded like objects being thrown
against the walls. Jerry Gilliland did not recall taking a dog when he and his father took
that trip to Modesto.
Danny Mendoza testified Walter Gilliland told him that after the murder, Gilliland
found defendants in an alley and fought with them, resulting in injuries to Gilliland‟s
head and ribs. According to Mendoza, Gilliland had a very bad drinking problem, was
drunk most of the time, and consistently lied.
Sandra Saulque, the custodian of records at Coast Savings and Loan, testified that
during the period in which the murder occurred, Gilliland‟s bank account balances never
exceeded $55, and a withdrawal in the amount of $40 on March 1 was the sole
withdrawal made close in time to the murder.
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Visalia Police Detective Richard Logan, the lead detective in this case, testified
that Gilliland had provided several statements to the police that were somewhat
inconsistent with his testimony at trial. For example, initially Gilliland did not mention
his having given Pontbriant the rent money in defendants‟ presence, and in subsequent
interviews when he did mention the money, he assertedly provided inconsistent accounts
of the amount involved. Gilliland also said that he met Tobin in the garage, rather than in
the house, and that Pontbriant normally left the keys to her car on the kitchen counter so
that Gilliland could use the car whenever he needed it. Gilliland inconsistently identified
the dates on which certain events transpired. Gilliland also told the police he wanted to
kill defendants, and was reluctant to help the police because he wanted to catch
defendants and punish them himself. Officer Logan testified in addition that several
items of value, including a television and a videocassette recorder, a jar of coins, and just
over $18 in cash found in Pontbriant‟s purse, remained in her house after the murder.
Similarly, a watch, a ring, and a pair of earrings had not been removed from Pontbriant‟s
body.
Investigator John Johnson of the Tulare County District Attorney‟s Office testified
Gilliland told him that on Sunday, February 28, Tobin had waited in the garage while
Letner brought the Kahlua and cigarettes inside the Jacob Street residence. Gilliland also
stated to Johnson that Pontbriant had been asleep when Gilliland stopped by the house on
his way to Modesto.
b. Evidence Concerning Earl Bothwell
Letner‟s defense investigator, Cliff Webb, testified that Bothwell informed him
Investigator Johnson had provided him (Bothwell) with details of the murder prior to
interviewing him. Tobin‟s investigator, James Dunham, testified that Bothwell said he
intentionally avoided becoming involved after defendants were arrested, because he
feared defendants and believed he might be held responsible for not promptly contacting
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the police regarding defendants‟ admissions. Bothwell also had refused to allow Dunham
to record the interview. According to Dunham, Bothwell also told him that Investigator
Johnson had briefed Bothwell thoroughly regarding the facts of the case prior to taking
his statement.
Detective Logan testified that on the day after the arrests, Bothwell checked out of
the motel where he and defendants had been staying. When Logan arrived in Iowa he
observed that the local media in Council Bluffs had provided some coverage of
defendants‟ arrests.
In Tobin‟s case in surrebuttal, Mercedes Brasel testified that she wrote a check
payable to Bothwell on March 28, 1988, as payment for work she had hired him to do on
her house. A copy of the check was admitted into evidence. Part of the work included a
painting project, which, according to Brasel, Tobin completed on the day she wrote the
check. Brasel testified that after Bothwell dropped off Tobin at her house, Tobin started
the work. Bothwell picked him up that evening when the work was completed.
During the prosecution‟s case, Bothwell had testified that Letner and Tobin
confessed to the murder on March 28, 1988, and that Bothwell had told Tobin that
Bothwell did not have any work for him that day — that is, according to Bothwell‟s
testimony, Tobin would not have painted Brasel‟s house on that day.
c. Evidence Concerning Jeanette Mayberry
Tobin‟s ex-wife, Cheryl Williams, testified that she traveled to Visalia on
February 27, 1988 so that their daughter could visit with Tobin. When Jeanette Mayberry
confronted Tobin and Williams at the park the following morning, Mayberry was
extremely upset and was screaming and using foul language. When Williams, Tobin,
their daughter, and Williams‟s friend drove away from the park, Mayberry followed them
in her car, driving in an unsafe manner, until Tobin got out of the car and walked. When
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Williams and Tobin met for the second time at a different park later that day, Mayberry
arrived at the park and tried to attack Williams.
Visalia Police Officer Jeff McIntosh responded to the report of a disturbance
involving Mayberry and Tobin at the Bridge Street apartment on Monday, February 29.
He testified that Mayberry did not appear to be injured and, not wishing to file charges
against Tobin, she said Tobin merely had slapped her face.
d. Evidence Concerning Flourene Gentry
Visalia Police Officer Jay Frame testified that Gentry told him the telephone calls
she received from Pontbriant on the night of the murder occurred at times other than the
times given in her testimony. She told Frame that to the best of her recollection, the third
telephone call, during which Pontbriant mentioned two men were then entering her
house, occurred at approximately one o‟clock in the morning. Detective Logan testified,
however, that Gentry told him she was certain that the final telephone call was made
between 9:00 p.m. and 10:00 p.m., and that Gentry had been very distraught during her
earlier interview with Detective Frame.
e. Evidence Concerning Gregory Garrard
Defense investigator Dunham testified that Garrard told him Tobin denied having
participated in Pontbriant‟s murder. In the prosecution‟s case-in-chief, Garrard had
testified he told a defense investigator that Tobin said he “had nothing to do with it.”
Investigator Johnson had testified, however, that when he interviewed Garrard, Garrard
did not tell him that Tobin had said he had nothing to do with the murder.
f. Forensic Evidence
Gary Cortner, a criminalist at the California Attorney General‟s office, was called
as a witness for Letner, and testified that most of Pontbriant‟s sweater, “if not all,” had
been ripped, not cut with a knife. He could not determine whether the area near the neck
had been cut or ripped; a hole in that area could have been made by a thumb or other
15
object having poked through the fabric. Cortner also testified that he generally was
unable to distinguish between the hair samples collected from Letner and Tobin because
each defendant had a “tremendous range” of hair types on his head. That circumstance
also accounted for his inability to match any of the hairs found at the scene to the
defendants. Cortner agreed, however, that a person with more experience and a more
powerful microscope than the one he had used might reach a different conclusion.
Letner also called as a witness Gary Sims, a criminalist hired by the defense, who
testified he was present when Letner‟s buck knife was disassembled and examined. Tests
for the presence of blood on the knife parts and debris found in the knife were negative.
In addition, Letner re-called Michael Malone, the prosecution‟s hair analysis
expert, who testified that one of the hairs identified as belonging to Pontbriant had been
broken in the laboratory while being mounted on a slide. Malone previously had testified
that a break in a hair indicates that the hair has been removed by force from a person‟s
body.
g. Testimony Regarding Defendants’ Plans to Leave California
Burt Arnold, who for a period of time shared the apartment on Murray Street with
defendants, testified that three weeks prior to the murder, defendants spoke of moving to
the Midwest, where Letner had family. Jacklynn Tobin, Tobin‟s mother, also testified
that prior to the murder, Tobin said he was thinking of going to Iowa with Letner.
Following the murder, Jeanette Mayberry found, in the Murray Street apartment, an
unmailed letter written by Letner to his grandparents, asking how they would feel if he
moved to Iowa. Cheryl Williams, however, testified that she had not heard anything
concerning Tobin‟s plans to leave California.
h. Defendant Tobin’s Testimony
Tobin testified in his own defense. According to his testimony, on Monday,
February 29 (the day after his fight with Jeanette Mayberry, arising from his visits with
16
Cheryl Williams), he and Letner went to the Bridge Street apartment so that Tobin could
attempt to reconcile with Mayberry. Finding the apartment unlocked, they went inside,
and several minutes later Mayberry returned to the apartment. During the ensuing
argument, Tobin merely slapped Mayberry, which he did because she had kicked him in
the groin. Tobin admitted, however, that he broke a window in the apartment by
throwing a hammer through it, and broke a window in Mayberry‟s car with his shotgun.
Tobin testified that Letner had been planning to go to Iowa for some time and,
after his fights with Mayberry, Tobin decided to accompany him. Accordingly, the next
day, Tuesday, March 1, Tobin returned to the Bridge Street apartment to retrieve his
clothing, but Mayberry refused to admit him. Later that day, Tobin saw Mayberry with
another man at the Break Room Bar. The man was wearing Tobin‟s shirt, which angered
Tobin somewhat. At that point, Tobin assumed that Mayberry had given away all of the
belongings he had left at the Bridge Street apartment.
Tobin testified that at approximately 6:30 p.m. that night, he and Letner were at
the Break Room when Letner received a telephone call. Letner said that Pontbriant had
called and invited him over to her house. They left the bar and proceeded to her house,
where they drank a number of beers. At some point, Tobin departed in order to purchase
more beer. He rode his bicycle to the Oval Liquor Store — not Frank‟s Liquors — and
purchased one six-pack each of Lowenbrau and Heineken beer. He did not purchase any
wine or a bottle opener that night.
Tobin testified that Pontbriant was upset because Gilliland had left, taking with
him their dog and all of their money. Later, she and Letner made a number of angry
telephone calls to someone named “Ed.”
According to Tobin‟s testimony, when the stock of beer again was depleted, he
returned to the Oval Liquor Store and purchased another six-pack each of Lowenbrau and
Heineken beer. When he returned to the house, Pontbriant and Letner were on the couch
with their arms around each other. When they began to kiss, Tobin left and rode his
17
bicycle to the Murray Street apartment, purchasing a quart of beer on the way. He fell
asleep soon after he arrived at the apartment.
Tobin testified that sometime later, Letner woke him up and asked him to help
load Letner‟s belongings into Pontbriant‟s car. Letner said he was taking the items to
Pontbriant‟s house to store them there while Letner and Tobin were in Iowa. According
to Tobin, earlier that night Letner had asked Pontbriant whether he could borrow her car
to bring over his belongings. In addition to the items that were Letner‟s, Tobin put his
sword and his shotgun in the car because he planned to try to sell them to Mike Kinnett,
who Tobin believed still was living at the house on South Crenshaw Street. En route
after leaving the apartment, however, Officer Wightman pulled them over. After the
officer directed them to leave the car on the side of the highway, defendants walked to
the bar at the Marco Polo Hotel, where they consumed more beer. Tobin testified he
suggested that Letner telephone Pontbriant to advise her where the car was parked.
Letner went to a telephone and appeared to place a call, but on returning Letner said no
one had answered the telephone at Pontbriant‟s residence. After leaving the bar,
defendants walked to the house on South Crenshaw Street. Finding it unoccupied, they
forced open the back door and spent the night there, sleeping on the floor.
Tobin testified that the next morning, they went to Denise Novotny‟s house and
asked her for a ride to the bus station in Goshen, not for a ride to work. After Novotny
declined, they hitchhiked to the bus station. Tobin purchased bus tickets to Sacramento,
and then tickets from Sacramento to Reno, using severance pay from his last job.
Tobin testified that he never told Earl Bothwell he had killed anyone in California.
During the altercation at the Iowana Motel, Tobin took Bothwell‟s shotgun from him,
angering and embarrassing Bothwell. Tobin denied ever having been in the residence on
North Jacob Street prior to the night Pontbriant was killed, and asserted he never saw
Gilliland give Pontbriant any money. Tobin testified he had nothing to do with
18
Pontbriant‟s murder, and did not plan to take anything from her when he visited her
house.
3. Prosecution Rebuttal Evidence
Terry Wood testified that in 1988, when he was incarcerated with Tobin at the
Tulare County jail, Tobin told him that he (Tobin) and Letner had been at Pontbriant‟s
house on the night of the murder. In contrast to Tobin‟s trial testimony that he had left
Pontbriant‟s house on his own and Letner later arrived at their apartment with her car,
Tobin told Wood he had borrowed Pontbriant‟s vehicle to move some items. Tobin did
not say he had departed from Pontbriant‟s house prior to borrowing the car.
Investigator Johnson denied giving Bothwell any details concerning the Pontbriant
murder before interviewing him. Johnson also testified that Wood informed him that
Tobin told Wood he had borrowed Pontbriant‟s car at her residence.
Jeanette Mayberry testified she had spoken with Tobin when he was in jail
following his arrest. Tobin told Mayberry that on the night of the murder, he left the
house twice to buy beer, purchasing one six-pack of Heineken on the first trip, and one
six-pack of Lowenbrau on the second trip. Tobin told her he later returned to the Murray
Street apartment. Letner woke him up two or three hours later, telling him Pontbriant had
loaned them the car to travel to Iowa. Tobin had advised Letner he wanted to sell
Tobin‟s shotgun before departing for Iowa.
In his defense case, during direct examination, Tobin had testified that he did not
make the foregoing statement to Terry Wood, and that Mayberry‟s statement was
inaccurate, probably “because [she] heard it wrong.”
B. Penalty Phase
1. Prosecution Evidence
The prosecution‟s evidence in aggravation consisted of numerous instances of
defendants‟ unadjudicated violent criminal conduct, admitted pursuant to section 190.3,
19
factor (b). Evidence concerning two victims was admitted against both defendants;
evidence concerning one other victim was admitted solely against Tobin, and evidence
concerning five other victims was admitted solely against Letner.
a. Incidents Involving Both Defendants
David Bendowski testified that he knew defendants when he lived in Napa in 1978
and 1979. Bendowski dated Tobin‟s ex-girlfriend for a period of time. Bendowski and
his sister, Julie Bryant, testified that approximately in June of 1978, defendants appeared
at Bendowski‟s residence and entered by force. They confronted Bendowski in the
hallway, and Tobin kicked Bendowski in the face, bloodying his nose. Tobin told
Bendowski he was angry that Bendowski had been dating Tobin‟s ex-girlfriend.
Several months later, defendants, accompanied by Letner‟s brother John, returned
to Bendowski‟s residence. John Letner asked Bendowski to come outside to talk, and
promised there would be no trouble. When Bendowski went outside, however,
defendants threatened to beat him up if he did not get into their car. Bendowski entered
the vehicle, and Letner drove them out of town. Defendants demanded that Bendowski
pay them for his dates with Tobin‟s ex-girlfriend. Tobin told Bendowski that “[i]f she
was gonna act like a whore, [Tobin] was gonna treat [her] like one.” Defendants told him
they were taking him out of town so that they could hang him from a tree and beat him.
Bendowski attempted to escape when the car stopped at a traffic light, but one of the
defendants slammed the car door closed before he succeeded. Defendants eventually
took Bendowski 10 to 15 miles out of town and left him on the side of the road.
On January 20, 1979, defendants again appeared at Bendowski‟s residence. When
Julie, who then was 14 years of age, told them that Bendowski was not there, Tobin
threatened to “work [her] over” if she did not check to make sure he was not in the house.
She did so, and told them again that Bendowski was not at home. Defendants told her to
tell Bendowski they were looking for him. Later that day, Bendowski was walking home
20
when he saw defendants driving in a car. He tried to run away, but defendants followed
him in their vehicle. Eventually, Bendowski decided to talk to defendants in an attempt
to avoid being assaulted. After he entered their car, defendants again demanded that
Bendowski pay them for his dates with Tobin‟s ex-girlfriend, and on this occasion
threatened to break his fingers if he did not pay them. Defendants eventually dropped off
Bendowski near his home.
On November 29, 1986, William Healer was at a gas station in Napa, getting fuel
for the pickup truck he was driving, when he was approached by defendants. Healer,
who ran an auto body-repair shop, had performed some repair work on a vehicle owned
by Tobin‟s mother. Healer had not completed the work when he moved his repair shop,
and defendants, apparently believing that Healer purposefully had attempted to avoid
completing the work even though he already had been paid by Tobin‟s mother, were
“going to take care of this in their . . . own way.” Defendants ordered Healer to drive
them in his truck to the store where Tobin‟s mother worked. On the way, defendants
picked up their friend Dan Hlobick, who needed a ride in order to purchase drugs. When
they arrived at the store, Tobin took the keys to the truck and ordered Healer to go with
him inside. Learning that Tobin‟s mother was not there, defendants ordered Healer to
drive to another store where she worked. During the drive, Letner threatened Healer, and
said he should not have “burned” Tobin‟s mother. When they arrived at the store, Tobin
entered to locate his mother, and while in the truck Letner continued to threaten Healer.
When Tobin returned, Letner opened the truck door next to Healer and struck him in the
face. After Healer begged defendants not to hurt him, defendants asked him whether he
or his family had any money.
When Tobin‟s mother arrived, Healer, who was crying, apologized to her for any
misunderstanding concerning her car. Mrs. Tobin said there was no misunderstanding
and asked him why he was so upset. When Healer explained what had happened, Mrs.
Tobin offered to drive him home in her car, but Healer declined because he was afraid
21
defendants might steal valuable tools in the truck. Tobin intervened, denying that anyone
had struck Healer, and stating they would let him leave. After Mrs. Tobin left and the
men drove away, however, Letner again told Healer to give them money in order not to
be hurt further, and he demanded Healer‟s wallet. When Healer said he did not have it
with him, Tobin accused him of lying and ordered him to pull over and get out of the
truck. Outside the truck, Letner kicked Healer in the chest and continued to demand the
wallet. When Healer said he would give him money at his house, they all reentered the
truck.
As Healer was driving, Letner said he needed to stop and pick up a gun because he
was afraid Healer might do something when they reached his house. Letner ordered
Healer to drive to the address where the gun was located. During the drive, Tobin
grabbed the back of Healer‟s head and Letner began hitting him in the face. Tobin
grabbed Healer‟s neck and choked him. When they arrived at the address, defendants
again struck Healer several times and discussed who would go inside to retrieve the gun.
At this point Healer noticed his door was unlocked, exited the truck, and ran to a nearby
car. Pounding on the hood of the car, he pleaded with the driver to let him in, saying,
“Help me. Help me. They‟re going to kill me.” The driver let him in and drove away.
One of the defendants chased after the car on foot before the driver accelerated.
Moments later, Healer realized that a house they were passing was occupied by persons
he knew. The driver stopped the car and Healer ran to the house, whose occupants let
him in and called the police. Healer was treated at the hospital for injuries to his throat
and chest. His ribs were permanently “disfigured,” and he had ongoing emotional
problems arising from the incident.
b. Incident Involving Tobin
Sometime in May 1981, Kenny Warren and a group of friends went to Letner‟s
house to confront defendants concerning an altercation that occurred earlier in the day.
22
Warren‟s group had an ongoing dispute with defendants and previously had been
involved in several fights with them. After a member of Warren‟s group knocked on and
kicked Letner‟s door, someone inside the house fired a shotgun through the door. As he
ran away, Warren heard one or two additional shots.
Approximately two weeks later, Warren was approached by Tobin and Robert
Nance in an auto parts store. Tobin told Warren to come outside and attempted to punch
him. Warren told Tobin they could talk inside because he was afraid he would be
“jumped” if he went outside. After Tobin assured him nothing would happen if they
went outside, Warren agreed. Once outside the store, Nance kicked Warren in the face.
Tobin said Warren should fight Nance “one on one,” but when Warren turned to confront
Nance, Tobin kicked him in the back, saying, “It‟s two on one now, fucker.” When
Warren attempted to run away, Nance tackled him. Tobin and Nance kicked Warren
repeatedly in the head and chest, and Tobin pulled handfuls of hair from the back of
Warren‟s head. Nance took Warren‟s wallet, which contained $85 in cash. After
allowing Warren to get up, Nance held out the wallet and dared Warren to take it.
Warren snatched the wallet from Nance and tried to run away, but Nance again tackled
him. Tobin and Nance resumed kicking him and again took his wallet, and Tobin began
dragging him toward a nearby car. Richard Baker, an employee of the auto parts store,
saw Tobin kicking Warren in the head and face, and heard him threaten to kill Warren if
anyone ever shot at his house again. When Tobin stopped dragging Warren and returned
to the car in which Nance was waiting, Tobin told Baker that Warren “got what he
deserved” because he had shot at Tobin‟s house. Warren sustained a broken nose and
several contusions and other injuries in the attack, and lost his wallet and money.
c. Incidents Involving Letner
In June 1978, Stephan Frame, who attended high school in Napa, received a
telephone call from Letner, who said he was “after [Frame‟s] ass.” The following
23
Monday, in the school‟s parking lot, Letner approached him and inquired whether he was
Steve Frame. When Frame responded affirmatively, Letner punched him in the face,
rendering Frame momentarily unconscious. When Frame regained consciousness, Letner
was kicking him in the face with his work boot. Letner ceased after Frame repeatedly
asked him to stop. As a result of the attack, Frame was hospitalized for a concussion, a
broken nose, and a broken cheekbone.
On July 21, 1983, at approximately 11:45 p.m., Andrew Emberton, an off-duty
police officer, was driving on University Avenue in Berkeley when he noticed a person
standing in the road who appeared to be hitchhiking. Emberton had to stop his vehicle
because the person was blocking the lane. Emberton motioned for the person — who
turned out to be Letner — to move out of the street. When Letner approached the car and
became confrontational, Emberton decided to drive away. As he did so, Letner hit the
side of his car. When Emberton stopped again, Letner, assuming a karate stance,
challenged Emberton to fight him. Emberton said he did not want to fight, but merely
wanted Letner to move onto the sidewalk. Letner continued to challenge Emberton,
twice pushing him in the chest. An on-duty police officer then arrived, and Letner was
arrested. During the arrest, Letner resisted to the extent that both Emberton and the other
officer had to struggle with him in order to apply handcuffs.
On the afternoon of January 14, 1985, Alexander McAdams visited his girlfriend
Susan Forsythe at a restaurant in Benicia. McAdams and Letner had a history of physical
confrontations. Moments after leaving the restaurant in his pickup truck, McAdams saw
Letner driving his pickup truck on the wrong side of the road straight toward McAdams‟s
truck. McAdams attempted to avoid Letner, but Letner changed lanes and continued to
drive directly at McAdams. Eventually, McAdams drove his truck in reverse to avoid
Letner, but Letner hit McAdams‟s truck, bumper to bumper. When Letner exited his
truck carrying a rifle, McAdams drove across an open field, hearing several shots as he
drove away.
24
McAdams went to a police station to report the incident. Evidently possessing
information concerning Letner‟s whereabouts, police officers went to Anthony
Hockney‟s apartment. When the officers first arrived, Letner‟s truck was not there, but
when they returned approximately one hour later, it was parked in front of the apartment.
A woman who answered the door told the officers she was alone, but when they heard
noises in the back of the apartment they entered and found Hockney sitting on the bed
next to a .44-caliber Ruger rifle. Hockney said the rifle belonged to Letner, who had
been in the apartment when the police arrived, but departed as they entered. The officers
went outside but did not find Letner. Approximately 15 minutes later, however, Letner
returned to his truck and drove away without activating his headlights, although it was
now dark. A police officer followed, arresting him a short distance away. Letner was
verbally confrontational with the officers, and after his arrest said, “You think you got me
because you‟ve got my gun. But my gun‟s clean.” The officers had not mentioned
anything concerning a gun prior to Letner‟s comment. Letner also told the officers that
“I‟ll be out of this soon, and then I‟ll get Alexander McAdams.” At the police station,
Letner admitted having a dispute with McAdams over a girl, and driving head-on into
McAdams‟s truck. Although Letner denied using, possessing, or owning the rifle,
officers found a receipt for purchase of the rifle in Letner‟s pocket.
Sheila W. met and became romantically involved with Letner in July of 1987. On
December 27, 1987, when they had an argument, Letner hit her in the back of her head
and on her neck and back, and choked her until she became unconscious. On January 1,
1988, Sheila and Letner had another argument. Letner departed, but on returning he
repeatedly made sexual advances to Sheila, which she rejected. Eventually, Letner
forced her onto the floor and had nonconsensual sexual intercourse with her. Sheila did
not report the incident to the police, because she was afraid of Letner.
On April 16, 1988, Mike Mohrhauser was driving his pickup truck from El Paso,
Texas to Las Cruces, New Mexico, when he picked up a hitchhiker, who proved to be
25
Letner. Letner recently had escaped from the custody of an extradition company that was
charged with returning him to California. Mohrhauser invited Letner to stay at his house,
and the two “partied” the next two nights at the homes of Mohrhauser‟s relatives. On the
second evening, when returning to Mohrhauser‟s house, Letner, who was driving, pulled
over so that Mohrhauser, who was intoxicated, could urinate. When Mohrhauser got out
of the truck, Letner struck him on the head with an object, rendering him unconscious.
When he awoke, Mohrhauser was lying facedown in a watery irrigation ditch
approximately 30 feet from where he was hit by Letner. Mohrhauser‟s truck, wallet, and
watch had been taken. When Mohrhauser recovered the truck, his tools, worth
approximately $3,000, were missing.
2. Defense Evidence
a. Letner’s Case in Mitigation
Letner‟s younger brother John testified that their father was an alcoholic. Because
of his alcoholism, their father frequently moved the family while the boys were growing
up. Their parents fought over his drinking, eventually separating when Letner was 19
years of age. Alcoholic beverages always were present in the home, and Letner was
drinking consistently by the time he was 15 years of age. Letner also smoked marijuana,
but John was not aware of his using other drugs. When Letner was growing up, he
constantly was teased by other children concerning his appearance. At one point, his
parents considered having him undergo cosmetic surgery to improve the appearance of
his face, but ultimately his father decided not to proceed. John believed that Letner acted
suicidal on several occasions.
John testified that Letner assaulted Stephan Frame because Frame and two other
boys previously had confronted John in school and threatened to beat him up. John did
not inform Letner of the incident, because he knew their father would expect Letner to do
something to protect John, and would beat Letner if he did nothing. Letner found out,
26
however, and John overheard a telephone call during which Letner told Frame to leave
John alone. According to John‟s testimony, Frame told Letner that if Letner confronted
him, Frame would shoot Letner once he had the chance.
John testified that he was present during the first incident when David Bendowski
was with defendants in their car. John testified that no one forced Bendowski into the
vehicle — he willingly joined them in order to drink beer and smoke marijuana. Tobin
and Letner did not discuss money other than to remind Bendowski that he owed them
money for marijuana. According to John, no one threatened or abandoned Bendowski;
he simply chose not to ride back to town with them.
John also testified that Letner and Tobin met in 1977 and became close friends.
After they began to engage in frequent fights and other types of trouble, John told Letner
he should stay away from Tobin. Eventually, John told Letner that he no longer wanted
to be around Letner unless Letner ended his friendship with Tobin.
Other witnesses testified on Letner‟s behalf along similar lines concerning the
relationship between Letner and Tobin. Earl Bothwell‟s preliminary hearing testimony,
which was read to the jury, was to the effect that Letner bought various things for Tobin
and appeared to idolize him. Sheila W. also testified that Letner idolized Tobin. Burt
Arnold testified that defendants sometimes had physical confrontations with each other,
and it was Letner who usually would back down. In addition, the jury heard Bothwell‟s
preliminary hearing testimony indicating that during the fight in the motel room prior to
defendants‟ being arrested, Tobin had threatened to shoot Bothwell with his shotgun, but
Letner removed the ammunition from the gun. Bothwell believed that had Letner not
done so, Tobin might have shot him.
John Letner testified that defendant Letner telephoned him in late 1987 and said he
wanted to leave Visalia because Tobin was “acting crazy” and was scaring him. In April
1988, after Pontbriant‟s murder, Letner telephoned John and their mother several times
and said he had “done nothing wrong” but doubted he would be acquitted of Pontbriant‟s
27
murder. John told Letner not to contact them again unless he was willing to turn himself
in to the authorities.
Derrin Clenny testified he was hitchhiking with Letner at the time of the incident
involving Officer Emberton. According to Clenny, Emberton was the aggressor —
Letner did not hit Emberton‟s car and merely was acting defensively throughout the
confrontation. Clenny stated that Letner did not resist the officers at the time of his
arrest.
Letner testified on his own behalf. Regarding the incident with Stephan Frame,
Letner testified he assaulted Frame because Letner‟s father had told him that he either
must confront Frame to protect John, or find a new place to reside. Letner testified he
was not present when Tobin entered David Bendowski‟s house and kicked him in the
face. According to Letner, he and Tobin never forced Bendowski to enter their vehicle,
and never threatened him or demanded money because Bendowski had dated Tobin‟s ex-
girlfriend. Moreover, Letner testified, they did not abandon him outside of town;
Bendowski had said he wanted to walk back.
Similarly, Letner testified that he merely slapped William Healer once while they
were driving him to meet Tobin‟s mother, and Letner may have hit him on one other
occasion because he did not like Healer. Letner asserted he did not attempt to obtain
money from Healer by threatening to harm him.
Letner testified that Officer Emberton nearly hit Derrin Clenny when Emberton
pulled his car over to the side of the road. Letner claimed that when Emberton left his
vehicle, he was very aggressive and grabbed Derrin‟s arm. When Letner slapped
Emberton‟s arm away, Emberton swung at him. Letner hit him back, knocking Emberton
to the ground. Then two police cars arrived, and Letner was arrested.
According to Letner, on the day of the incident involving Alexander McAdams,
Letner drove Susan Forsythe to work at a restaurant. On the way, he saw McAdams
drive through a red traffic signal. To avoid a collision, Letner was forced to accelerate,
28
despite the red signal. Later, when he saw McAdams, Letner drove toward him in order
to scare him. Letner asserted he did not have a rifle with him and did not shoot at
McAdams. Letner explained he had left his rifle with a neighbor of Anthony Hockney
named Rodney, and since had learned that the rifle was in Hockney‟s apartment. Letner
did not know why the police were searching for him at the time he left Hockney‟s
apartment.
Letner testified that on the night of December 27, 1987, he became intoxicated and
lost consciousness. At some point while he slept, Sheila W. poked Letner in the eye.
Letner was startled and reacted by punching her, not realizing exactly what he was doing.
Letner admitted having sexual intercourse with Sheila on January 1, 1988, but believed it
was consensual.
Letner testified concerning the incident with Mike Mohrhauser. Mohrhauser, who
had consumed heroin that night, had been beaten up by Mohrhauser‟s brother and was
unable to drive. When Letner drove Mohrhauser home, he punched Letner for not having
helped Mohrhauser during the fight with his brother. According to Letner, when
Mohrhauser told Letner to leave the truck, Letner stopped and instead pulled Mohrhauser
out of the truck and drove away. Letner did not hit Mohrhauser or remove Mohrhauser‟s
wallet or watch from his person; those items already were in the truck when he left
Mohrhauser on the side of the road.
Letner also testified that Tobin alone killed Pontbriant. Letner and Tobin went to
Pontbriant‟s house on the night of the murder to drink beer with her, and he and
Pontbriant made several telephone calls to Ed Burdette. After Tobin left to buy more
beer, Letner and Pontbriant sat on the couch and hugged and kissed each other. Letner
and Pontbriant had had sexual intercourse on three occasions prior to the night of the
murder, but that night Letner merely acted to console Pontbriant.
Letner testified that he, not Tobin, went to the liquor store on the second occasion
to buy more beer. When Letner returned, Pontbriant asked him to tell Tobin to go outside
29
and remain there for approximately one hour. Tobin took several beers and went outside
to the front yard. Letner and Pontbriant disrobed and were “intimate” on the couch, but
did not have sexual intercourse. After approximately 35 minutes, while Letner and
Pontbriant were dressing, Tobin reentered. Pontbriant became angry because Tobin had
not been invited to come back inside the house. Tobin told her that he knew what she
and Letner were doing, and then asked Letner whether he already had asked to borrow
Pontbriant‟s car.4 Pontbriant became angrier and slapped Letner, who reflexively
slapped her back, knocking her onto the couch. When Letner went to use the bathroom,
he heard Pontbriant threatening to call the police. After Letner returned to the living
room, he observed Tobin kicking Pontbriant‟s arm as she sat on the couch. Letner
attempted to pull Pontbriant to safety by grabbing her hair.
According to Letner, Tobin tried to remove Pontbriant‟s sweater. Tobin somehow
had obtained Letner‟s buck knife, which may have fallen out of Letner‟s pants pocket
when he sat on the couch. Tobin cut the collar of the sweater and ripped off the
remainder of the garment. Tobin removed Pontbriant‟s pants and observed that she had
defecated. Pontbriant laughed at Tobin, who then pulled out some of Pontbriant‟s hair
and forced her down upon the floor. He then removed a telephone cord from his pocket
and tied it around her wrists and neck. Tobin had his foot on Pontbriant and was
strangling her with the cord when Letner intervened by wrestling with Tobin. Tobin bit
Letner on the top of his head, and Letner hit his head against Tobin‟s nose, causing it to
bleed. Letner noticed that his buck knife was stuck in the table and retrieved it. Tobin
went into the kitchen, returned with a butcher‟s knife, and threatened to kill Letner if he
4
Letner testified he had planned to ask to borrow Pontbriant‟s car to transport and
sell some beauty products he had stolen.
30
interfered again. Letner then watched Tobin repeatedly stab the back of Pontbriant‟s
neck.
After Pontbriant was dead, Tobin forced Letner to help clean up the house and
remove their fingerprints. At some point, Tobin put the beer bottle in Pontbriant‟s
buttocks and kicked the bottle. Tobin retrieved the car keys from Pontbriant‟s purse and
said, “Well, we don‟t have to steal the car now.” The two men, departing with the
remaining beer and the murder weapon, proceeded to the Murray Street apartment. After
they disposed of the knife and loaded their belongings into Pontbriant‟s car, they drove
off but soon afterward were stopped by Officer Wightman.5
The final witness on Letner‟s behalf was Dr. Richard Blak, a psychologist. Dr.
Blak interviewed Letner and several members of his family, and performed a number of
psychological examinations. In Dr. Blak‟s opinion, Letner, who was average to above
average in intelligence, suffered from chronic depression, alcohol dependence, and
polysubstance dependence, resulting from a “borderline personality disorder” (BPD) that
Letner had developed at a very early age. Dr. Blak testified that symptoms of BPD
include unstable interpersonal relationships, self-damaging impulsiveness, mood swings,
aggressive behavior with an absence of anger control, suicidal or self-mutilating
behavior, an unstable self-image, chronic feelings of emptiness and boredom, and
extreme fear of abandonment. In Dr. Blak‟s experience, a person with BPD also may
have a distorted sense of reality and may act upon imagined threats with an inappropriate
sense of right and wrong. In Dr. Blak‟s opinion, Letner exhibited all of these symptoms.
Dr. Blak observed that Letner had suffered a head injury in a car accident when he was
5
During cross-examination, the prosecution questioned Letner concerning several
letters, describing the murder, that he had written to Danny Payne, another inmate at the
Tulare County jail. Certain letters contradicted his trial testimony, although others were
more consistent with his testimony. The letters are discussed in greater detail, post, in
part II.C.2.
31
seven years of age, but Blak was unable to form an opinion concerning any resulting
effect upon Letner‟s brain functioning, because no records existed of any testing
performed following the accident. In response to a hypothetical question describing a
murder similar to that recounted in Letner‟s testimony, Dr. Blak testified that a person‟s
failure to intervene during such an event would be consistent with such a person‟s having
BPD.
b. Tobin’s Case in Mitigation
Dan Hlobick testified that he accompanied Letner, Tobin, and William Healer on
their excursion to discuss with Tobin‟s mother the repair work Healer had performed on
her car. According to Hlobick, Letner slapped Healer a “few times” on the way to meet
Tobin‟s mother. Tobin did not hit or choke Healer. After they left Tobin‟s mother,
Healer simply stopped the truck and ran away for no apparent reason. Letner and Tobin
did not threaten Healer or attempt to obtain money from him. Tobin‟s mother also
testified that Healer did not appear to be upset when they met that day. She testified that
Healer told her during a subsequent telephone call that the reason he had told the police
Tobin had assaulted him was to teach Tobin a lesson, but that Healer would be dropping
the charges. Raymond Dudley, Tobin‟s brother-in-law, testified that he overheard a
similar conversation between Healer and Tobin‟s sister, in which Healer again said he
had complained to the police in order to teach Tobin a lesson, but would be dropping the
charges because Tobin had not done anything improper. According to Dudley, Healer
said Letner had hit Healer, but Tobin had told him to stop.
John Dean testified he was driving the car when Letner and Tobin picked up
David Bendowski. According to Dean, no one struck, threatened, or demanded money
from Bendowski.
Robert Hernandez, an inmate at the Tulare County jail, testified that Letner told
him that he and a person named Christopher went to Pontbriant‟s house to steal $300 in
32
cash and other items. Letner said he had killed Pontbriant to keep her quiet, and he
demonstrated to Hernandez how he had used the knife on her neck. Leo Pike, another
inmate at the jail, testified that, contrary to Letner‟s testimony, Letner and Hernandez
occasionally spoke with each other.
Tobin‟s father, mother, and sister each testified that they loved him and hoped the
jury would reach a verdict of life imprisonment without the possibility of parole.
II. DISCUSSION
A. Pretrial Issues
1. Failure to Set Aside the Burglary Charges and Special Circumstance
Allegations (Letner, Tobin)
Following the filing of the complaints and amended complaints, a preliminary
hearing was held. At the conclusion of the hearing, the magistrate declined to hold
defendants to answer on the burglary charges and the burglary special circumstance
allegations, finding the evidence did not establish that defendants intended to commit a
felony when they entered Pontbriant‟s house. The magistrate held defendants to answer
on the remaining charges of murder, robbery, attempted rape, and theft of a vehicle, and
the remaining special circumstance allegations.
The information subsequently filed in the superior court, however, included the
burglary charges and burglary special circumstance allegations, despite the earlier ruling.
Defendants each filed a motion under section 995, seeking to set aside the burglary
charges and special circumstance allegations in the information on the ground the
magistrate‟s determination was a factual finding that precluded the refiling of the
burglary charges. The trial court denied their motions, finding “there was sufficient
evidence to hold the defendants to answer on all charges, and on all special allegations.”
Tobin challenged the trial court‟s denial of his motion by seeking a writ of prohibition
from the Court of Appeal, but that court denied the petition. Letner did not file such a
petition. On appeal, defendants contend the magistrate‟s ruling precluded the prosecution
33
from refiling the burglary charges.6 We do not reach the merits of the question whether
the trial court erred by denying the section 995 motions, because defendants cannot
establish that any error in this regard was prejudicial.
In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-Ortiz), we reconsidered
the rule announced in People v. Elliot (1960) 54 Cal.2d 498, which we described as
“advanc[ing] the broad proposition that if the defendant has not been „legally committed‟
and the trial court nonetheless erroneously denies the motion to set aside the information
and permits the action to proceed to judgment, the resulting conviction must be
reversed.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 527.) We observed that the Elliot rule
was based upon the notion that the absence of a legally proper commitment deprived the
trial court of “jurisdiction” over the defendant, and therefore reversal on appeal was
warranted even in the absence of a showing of prejudice at trial. We further explained,
however, that the “source of the difficulty in Elliot is the uncritical use of the term
„jurisdiction‟ when assessing the effect of an illegal commitment on the trial in superior
6
In the present claim and in most of their others on appeal, defendants contend the
asserted error or misconduct denied them various state and federal constitutional rights.
As we stated in People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17 (Boyer), and
subsequent cases: “In most instances, insofar as defendant[s] raised the issue at all in the
trial court, [they] failed explicitly to make some or all of the constitutional arguments
[they] now advance[ ]. In each instance, unless otherwise indicated, it appears that either
(1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous
instruction affecting defendant[s‟] substantial rights) that required no trial court action by
the defendant[s] to preserve it, or (2) the new arguments do not invoke facts or legal
standards different from those the trial court itself was asked to apply, but merely assert
that the trial court‟s act or omission, insofar as wrong for the reasons actually presented
to that court, had the additional legal consequence of violating the Constitution. To that
extent, defendant[s‟] new constitutional arguments are not forfeited on appeal.
[Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a claim that
the trial court erred on the issue actually before that court necessarily leads to rejection of
the newly applied constitutional „gloss‟ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
34
court.” (Pompa-Ortiz, at p. 528.) We therefore discarded the Elliot rule, and held the
following: “Henceforth irregularities in the preliminary examination procedures which
are not jurisdictional in the fundamental sense shall be reviewed under the appropriate
standard of prejudicial error and shall require reversal only if defendant can show that he
was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the
preliminary examination. The right to relief without any showing of prejudice will be
limited to pretrial challenges of irregularities.” (Pompa-Ortiz at p. 529, italics added; see
also People v. Stewart (2004) 33 Cal.4th 425, 461-462.)
We acknowledge that our statement of the rule in Pompa-Ortiz reflects the
circumstance that we were addressing an alleged irregularity that occurred during the
preliminary hearing itself, whereas in the present case we are concerned with an alleged
error that occurred in the trial court subsequent to the preliminary hearing. We conclude
the rule nonetheless should apply in these circumstances as well. The error complained
of in the present case — that the trial should not have proceeded on charges the
magistrate ruled were unfounded — is not “jurisdictional in the fundamental sense,” as
we have defined that term. As we recently explained, “[a] lack of jurisdiction in its
fundamental or strict sense results in „ “an entire absence of power to hear or determine
the case, an absence of authority over the subject matter or the parties.” [Citation.] On
the other hand, a court may have jurisdiction in the strict sense but nevertheless lack
“ „jurisdiction‟ (or power) to act except in a particular manner, or to give certain kinds of
relief, or to act without the occurrence of certain procedural prerequisites.” [Citation.]
When a court fails to conduct itself in the manner prescribed, it is said to have acted in
excess of jurisdiction.‟ [Citations.]” (People v. Lara (2010) 48 Cal.4th 216, 224-225.)
“[F]undamental jurisdiction cannot be conferred by waiver, estoppel, or consent . . .
[whereas] „an act in excess of jurisdiction is valid until set aside, and parties may be
precluded from setting it aside by such things as waiver, estoppel, or the passage of
35
time.‟ ” (Id. at p. 225.) Defendants‟ claims, which they were required to raise at trial by
way of their section 995 motions in order to preserve them (see § 996), cannot be
considered as raising a challenge to the trial court‟s fundamental jurisdiction over the
case. (Cf. People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990-991 [“Errors in the
denial of a section 995 motion claiming insufficiency of the evidence are not
jurisdictional in the fundamental sense.”]; People v. Mattson (1990) 50 Cal.3d 826, 873.)
Indeed, we observe that a magistrate‟s ruling pursuant to section 871 that certain charges
have not been sustained, even if that decision is properly supported by the facts and the
law, does not absolutely deprive the prosecution of the opportunity to bring the charges at
issue. As long as the restrictions of section 1387 on the number of times charges may be
dismissed and refiled are satisfied, the prosecution may move to dismiss the case and
either file a new complaint that includes all the charges, which would lead to a second
preliminary hearing, or seek an indictment by the grand jury. (See, e.g., Burris v.
Superior Court (2005) 34 Cal.4th 1012, 1019; Ramos v. Superior Court (1982) 32 Cal.3d
26, 29.)
Accordingly, pursuant to the rule we set forth in Pompa-Ortiz, on appeal
defendants are required to establish not only that the denial of their section 995 motions
was erroneous, but also that they were prejudiced by such error. Letner and Tobin cannot
do so, because the jury convicted them of the burglary charges and found the burglary
special circumstance allegations true after a trial in which, as discussed, post, in part
II.B.2.c, the prosecution presented sufficient evidence as to those matters. (See People v.
Crittenden (1994) 9 Cal.4th 83, 137 [“Even „ “ „[i]f there is insufficient evidence to
support the commitment, the defendant cannot be said to be prejudiced where sufficient
evidence has been introduced at . . . trial‟ ” ‟ to support the jury‟s finding as to the charge
or as to the truth of the allegation.”].) We therefore conclude defendants‟ claims are
without merit.
36
2. Failure of the Information to Charge First Degree Felony Murder (Letner,
Tobin)
Defendants were charged with murdering Pontbriant willfully and unlawfully and
with malice aforethought, in violation of section 187. Defendants were not charged
specifically with first degree murder in violation of section 189, that is, murder
committed in the course of committing an enumerated felony. Defendants raise on
appeal a number of familiar claims related to the failure separately to charge felony
murder pursuant to section 189, in addition to charging murder with malice, pursuant to
section 187. We previously have rejected claims identical to defendants‟ claims, and
discern no reason to reconsider those decisions. (See People v. Morgan (2007) 42
Cal.4th 593, 616-617 [holding “a defendant may be convicted of first degree murder even
though the indictment or information charged only murder with malice in violation of
section 187,” in rejecting claims that the trial court lacked jurisdiction, that the court
improperly instructed the jury regarding theories of first degree murder, and that
defendant received inadequate notice of the prosecution‟s theory of the case]; People v.
Hughes (2002) 27 Cal.4th 287, 369-370 (Hughes) [rejecting the claim that People v.
Dillon (1983) 34 Cal.3d 441 implicitly overruled People v. Witt (1915) 170 Cal. 104,
which held that murder with malice and felony murder are not separate crimes].)
3. Denial of Motions to Suppress Evidence (Letner, Tobin)
Prior to trial, defendants moved to suppress all evidence obtained as the result of
the vehicle stop conducted by Officer Wightman on the night of the murder, when
defendants were driving in Pontbriant‟s vehicle. Defendants asserted that Officer
Wightman lacked a reasonable suspicion of criminal activity, and therefore his seizure of
defendants was unreasonable under the Fourth Amendment of the United States
Constitution. The trial court denied the motions, finding that Officer Wightman‟s
observations gave rise to a reasonable suspicion of criminal activity. On appeal,
defendants contend that the trial court erred in finding the traffic stop was supported by
37
reasonable suspicion, and that the court‟s failure to suppress evidence obtained as a result
of the stop violated their rights under the Fourth Amendment. We are not persuaded.7
a. Background
The evidence considered in ruling upon the motions to suppress was as follows.8
Officer Wightman was patrolling the downtown area of Visalia on the night of Tuesday,
March 1, 1989, in a marked police vehicle. At approximately midnight, Officer
Wightman was traveling westbound on Main Street, approaching its intersection with
Garden Street. As Officer Wightman drove to the corner of Main Street, he saw a red
Ford Fairmont traveling southbound on Garden Street also approaching the intersection.
Officer Wightman‟s attention was drawn to the Fairmont because its exterior was beaded
with water. Although it had rained heavily earlier that night, the rain stopped at
approximately 9:30 p.m., and other vehicles traveling on the roads were not beaded with
water, whereas the exteriors of cars parked nearby in a car lot and on the street were still
wet. Officer Wightman testified he became “somewhat suspicious” because the beaded
water on the Fairmont indicated to him that it had been driven only a short distance from
where it had been parked when it had been raining hours earlier, and he was aware that
during the past three months there had been “heavy” criminal activity within that area of
downtown. This area included approximately 10 car dealerships that had filed numerous
reports of a “considerable amount of vehicle tamperings and stolens [sic] and vehicle
burglaries in the general car lot areas of downtown.” Indeed, a Ford dealership with
7
The Attorney General contends that Tobin, as a mere passenger in the car, was not
“seized” when Officer Wightman made the traffic stop, and therefore Tobin is not
entitled to challenge the constitutionality of the stop. This assertion fails in light of the
United States Supreme Court‟s decision in Brendlin v. California (2007) 551 U.S. 249.
8
The parties agreed that in ruling upon the motions, the trial court would consider
testimony and other evidence presented at the suppression hearing, as well as Officer
Wightman‟s testimony from the preliminary hearing.
38
several car lots and a body-repair shop in the immediate area had reported “quite a few”
incidents, including the theft of a vehicle from one of its lots about one week earlier. The
reports of criminal activity in the area were summarized in daily bulletins that Officer
Wightman received at work. Officer Wightman testified that “there was a used Ford car
lot at Center, between Garden and Bridge, that we‟ve had numerous problems with as far
as vehicle tamperings and burglaries,” and his “first thought was this car was being
removed from that lot because all the other cars that were traveling on the roadway at the
time were free of moisture.”
After the Fairmont turned in front of Officer Wightman into the eastbound lane of
Main Street, he made a U-turn and followed as it proceeded to turn south on Bridge
Street and then west on Mineral King Avenue, before entering the on-ramp to westbound
State Highway 198. The Fairmont traveled “consistent with” the speed limit and made
appropriate stops at the stop signs and traffic signals on the city streets. Despite the
circumstance that the on-ramp was, as Officer Wightman testified, “quite long enough to
build proper speed to enter the freeway, [so as not to] make a danger to oncoming traffic
that is going faster,” upon entering the highway the Fairmont proceeded at 40 miles per
hour, well below the posted speed limit of 55 miles per hour. Although Officer
Wightman also noticed that the Fairmont‟s engine sounded as though it was “running
rough,” he testified he did not believe that the sound of the engine indicated mechanical
problems accounting for the vehicle‟s slow speed on the highway. Officer Wightman
testified the “main reason” he was becoming more suspicious about the occupants of the
vehicle was that “they turned onto [Highway] 198 and were traveling only forty miles an
hour with no other vehicles in sight, except for my own.” Officer Wightman further
testified his suspicions also were aroused because, based upon his experience, the
Fairmont‟s slow speed possibly indicated that the driver was intoxicated. During his
years of service as a patrol officer, which involved “hundreds” of “DUI” traffic stops, he
39
became familiar with common signs and symptoms of intoxicated drivers, one of which
was driving at an abnormally slow speed for no apparent reason.
As he followed the Fairmont, Officer Wightman radioed a police dispatcher to
check its registration, and was informed that Pontbriant was the registered owner and that
the vehicle had not been reported stolen. After the Fairmont had traveled on the highway
at 40 miles per hour for approximately one mile, Officer Wightman initiated a traffic stop
by activating his patrol vehicle‟s emergency lights, and the Fairmont pulled over. When
questioned by the prosecutor at the hearing on the motions to suppress, Officer Wightman
agreed that his suspicion that the driver was intoxicated was the “main reason for the
stop,” but it was “[a]bsolutely” the case that his “suspicions concerning the possible theft
of that vehicle [were] part of the reason why” he stopped it.
Officer Wightman identified the driver and the passenger as Letner and Tobin,
respectively. During his subsequent inquiries concerning why defendants were in
possession of the car, and whether Letner had been driving while under the influence of
alcohol or a drug, Officer Wightman conducted a brief search of defendants and the car,
which uncovered items belonging to defendants, beer bottles of the same brands later
found at the murder victim‟s house, and Letner‟s buck knife, which Letner was carrying
in his pants pocket. Letner told Officer Wightman that the Fairmont belonged to Ivon
Pontbriant, and that she had given him permission to drive it. Letner said that Pontbriant
lived on Jacob Street, but he claimed he did not know the exact address or her telephone
number. In addition, defendants each made inconsistent and apparently untruthful
statements concerning their destination. When the car subsequently was impounded and
more thoroughly searched, a rag with blood on it consistent with Tobin‟s blood, and a hat
belonging to Letner, also were found in the car.
The trial court denied defendants‟ motions to suppress, finding “there was
reasonable suspicion, based on the totality of the circumstances testified to by the officer.
[¶] First of all, the Court believes that the officer had a right to be suspicious about the
40
movement of cars in that area, in which he first encountered the Ford Fairmont in which
the defendants were riding.” The court noted that the daily bulletins issued by the police
department reported “numerous car thefts” in the area. Although it was not part of the
record, the court noted its own personal knowledge that various car lots were in the area,
and that it was “obvious that this is in downtown Visalia, that this is not an area in which
there is housing in which you expect people to be leaving their residences and going to
other places. [¶] There are no supermarkets, and the — so what you are left with is the
downtown area in which there are probably a couple bars in the vicinity, and some car
lots.” In the trial court‟s view, “that in itself wouldn‟t have given the officer any right to
stop this car. But he certainly had every right to follow it.” The court stated that Officer
Wightman, however, “did develop a reasonable suspicion based on slow speed. [¶]
The — we have had a lot of testimony and diagrams [regarding the area], and this Court
has come onto the freeway at the location which these defendants went on it, and which
the officer followed. [¶] That is a rather long descending ramp onto the freeway.
There‟s adequate opportunity to accelerate from that point, up through the Mooney
overcrossing, and the — the speed, plus the location [at] which these defendants were
originally observed, plus the fact that in my opinion the opportunity that they would have
had to get this car up to speed but didn‟t, and the — the fact that the officer was aware of
thefts in the area, . . . all gave the officer reasonable opportunity — reasonable suspicion
to stop this car. [¶] And once stopped, then the observations he made of the driver gave
more than adequate grounds to proceed as he did.”
b. Discussion
As an initial matter, we observe that the evidence and arguments presented by
defendants at the pretrial proceedings attempted to establish primarily that the reasons
Officer Wightman offered for the stop were merely pretextual — essentially defendants
contended that Officer Wightman had a grudge against them from prior encounters,
41
recognized them when the Fairmont first turned in front of the patrol car at the
intersection, decided to stop them at the beginning of the encounter, and that the officer
emphasized the possibility that the car had been stolen and the driver had been
intoxicated as pretexts to justify his conduct. The United States Supreme Court,
however, has since made clear that Fourth Amendment challenges based upon a claim
that a seizure or search was “pretextual” are without merit. (See Whren v. United States
(1996) 517 U.S. 806, 813.) Defendants, properly, do not on appeal renew their
contentions of a pretextual stop.9 To the extent, however, that they contend that Officer
Wightman subjectively had abandoned the notion the car was stolen before stopping it,
and that therefore we must evaluate the reasonableness of the stop solely on the basis of
whether there was reasonable suspicion the driver of the Fairmont was intoxicated, this
contention is without merit both as a matter of fact and of law. First, Officer Wightman
ultimately testified that when he initiated the traffic stop, he harbored suspicions of both
an intoxicated driver and a stolen car. Second, “[a]n action is „reasonable‟ under the
Fourth Amendment, regardless of the individual officer‟s state of mind, „as long as the
circumstances, viewed objectively, justify [the] action.‟ [Citation.] The officer‟s
subjective motivation is irrelevant.” (Brigham City v. Stuart (2006) 547 U.S. 398, 404;
see also Whren, supra, 517 U.S. at p. 814 [“the Fourth Amendment‟s concern with
„reasonableness‟ allows certain actions to be taken in certain circumstances, whatever the
subjective intent” of the officer]; People v. Sanders (2003) 31 Cal.4th 318, 334.)
“In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
9
The trial court, in rejecting defendants‟ claim that the stop was pretextual, found
that Officer Wightman had not recognized defendants when they turned in front of the
patrol car, and consequently did not know who was in the Fairmont until he stopped the
vehicle.
42
applied has been violated. We review the court‟s resolution of the factual inquiry under
the deferential substantial-evidence standard. The ruling on whether the applicable law
applies to the facts is a mixed question of law and fact that is subject to independent
review.” (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134.) On appeal we
consider the correctness of the trial court‟s ruling itself, not the correctness of the trial
court‟s reasons for reaching its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976 [if
the trial court‟s ruling is correct “ „ “upon any theory of the law applicable to the case, it
must be sustained regardless of the considerations which may have moved the trial court
to its conclusion” ‟ ”]; People v. Braeseke (1979) 25 Cal.3d 691, 700-701.)
“The Fourth Amendment protects against unreasonable searches and seizures.
[Citations.] „A detention is reasonable under the Fourth Amendment when the detaining
officer can point to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained may be
involved in criminal activity.‟ [Citation.] Ordinary traffic stops are treated as
investigatory detentions for which the officer must be able to articulate specific facts
justifying the suspicion that a crime is being committed. [Citations.] [¶] . . . [¶] Law
enforcement officers may „draw on their own experience and specialized training to make
inferences from and deductions about the cumulative information available to them that
“might well elude an untrained person.” [Citations.]‟ [Citation.].” (People v. Hernandez
(2008) 45 Cal.4th 295, 299.)
As the United States Supreme Court has stated: “The reasonableness of a seizure
under the Fourth Amendment is determined „by balancing its intrusion on the individual‟s
Fourth Amendment interests against its promotion of legitimate government interests.‟
[Citation.]” (Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cty. (2004) 542 U.S.
177, 187-188.) This court has recognized that “[t]he level of intrusion of personal
privacy and inconvenience involved in a brief vehicle stop is considerably less than [an]
„embarrassing police search‟ on a public street,” and that “ „in light of the pervasive
43
regulation of vehicles capable of traveling on the public highways, individuals generally
have a reduced expectation of privacy while driving a vehicle on public thoroughfares.‟
[Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1087.)
Even in a general sense, the reasonable suspicion standard of Terry v. Ohio (1968)
392 U.S. 1 is not a particularly demanding one, but is, instead, “considerably less than
proof of wrongdoing by a preponderance of the evidence.” (United States v. Sokolow
(1989) 490 U.S. 1, 7.) “In reviewing the propriety of an officer‟s conduct, courts do not
have available empirical studies dealing with inferences drawn from suspicious behavior,
and we cannot reasonably demand scientific certainty from judges or law enforcement
officers where none exists. Thus, the determination of reasonable suspicion must be
based on commonsense judgments and inferences about human behavior.” (Illinois v.
Wardlow (2000) 528 U.S. 119, 124-125.) Further, as the high court repeatedly has
explained, the possibility of innocent explanations for the factors relied upon by a police
officer does not necessarily preclude the possibility of a reasonable suspicion of criminal
activity. (United States v. Arvizu (2002) 534 U.S. 266, 274 (Arvizu) [“Although each of
the series of acts [in Terry] was „perhaps innocent in itself,‟ we held that, taken together,
they „warranted further investigation.‟ ”]; Sokolow, supra, 490 U.S. at p. 9 [holding that
factors that by themselves were “quite consistent with innocent travel” collectively gave
rise to reasonable suspicion]; see also People v. Glaser (1995) 11 Cal.4th 354, 373 [“that
a person‟s conduct is consistent with innocent behavior does not necessarily defeat the
existence of reasonable cause to detain. [Citation.] What is required is not the absence
of innocent explanation, but the existence of „specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant that intrusion‟ ”].)
In determining whether a search or seizure was supported by a reasonable suspicion of
criminal activity, “ „the relevant inquiry is not whether particular conduct is “innocent” or
“guilty,” but the degree of suspicion that attaches to particular types of noncriminal
44
acts.‟ ” (Sokolow, supra, 490 U.S. at p. 10.) Indeed, the United States Supreme Court
has acknowledged that by allowing the police to act based upon conduct that was
“ambiguous and susceptible of an innocent explanation,” the court in Terry “accept[ed]
the risk that officers may stop innocent people.” (Wardlow, supra, 528 U.S. at pp. 125-
126; see, e.g., In re Raymond C. (2008) 45 Cal.4th 303, 306-308 [police officer had
reasonable suspicion to conduct a traffic stop on a vehicle displaying no rear license plate
or a temporary operating permit in the rear window, despite the circumstances that the
vehicle otherwise was being driven in a lawful manner and there was a temporary permit
in the front window].)
In the present case, the relevant facts — that is, setting aside the irrelevant issue of
Officer Wightman‟s subjective beliefs concerning the justification for the stop — are as
follows. When Officer Wightman first observed the Ford Fairmont at the intersection of
Main and Garden Streets, its exterior, unlike other cars traveling in the area, was beaded
with water, although it had stopped raining hours before. A reasonable officer could
suspect from this circumstance that the car had been parked nearby until fairly recently.
Officer Wightman knew that in the immediate area were a number of car dealerships that
had reported vehicle tamperings, burglaries, and thefts in the preceding months. Indeed,
the Ford dealership adjacent to that intersection had reported the theft of a vehicle
approximately one week earlier. It was midnight on a Tuesday night, when relatively few
persons are working or otherwise away from home and hence when vehicle thefts from a
car dealership more readily might be committed. Officer Wightman, following the
Fairmont in his marked patrol car, observed that after the vehicle entered the highway (at
that point a freeway), it accelerated to a speed of only 40 miles per hour, well below the
speed limit, and traveled at that speed for approximately one mile, that is, for more than
one minute. In these circumstances, a reasonable officer might suspect the driver of the
car was attempting to avoid contact with the police. (See United States v. Villalobos (5th
Cir. 1998) 161 F.3d 285, 291 [“noticeable deceleration in the presence of a patrol car can
45
contribute to reasonable suspicion, even though drivers often slow when they see law
enforcement personnel”]; United States v. Lopez-Martinez (10th Cir. 1994) 25 F.3d 1481,
1486 [“maintaining a noticeably slow speed in the presence of a police officer may
suggest nervousness”]; People v. Gibson (1963) 220 Cal.App.2d 15, 20 [“The fact that a
driver proceeds at a speed slower than the speed limit under circumstances where he
might normally proceed at the higher speed also is a factor appearing to justify an
officer‟s investigation.”].) We therefore conclude Officer Wightman pointed to specific
articulable facts that, considered in light of the totality of the circumstances, provided
“some objective manifestation” that one or both of the individuals in the Fairmont may
have been involved in criminal activity, including theft of the automobile, and were
attempting to avoid apprehension.
Defendants point to various details that, they contend, diminish the suspicious
nature of the articulable facts listed above. For example, Officer Wightman had learned
prior to the traffic stop that the Fairmont had not been reported stolen and was registered
to a private person (not a dealership). Defendants also assert that the car might have been
traveling on the highway at a slow speed because of mechanical difficulties, made
apparent to the officer by the sound of the engine “running rough,” possibly unsafe road
conditions because of the rain that had fallen earlier that night, or because the driver was
anticipating an upcoming reduction in the speed limit when the freeway ended. As
mentioned above, however, such possible innocent explanations for an officer‟s
observations do not preclude the conclusion that it was reasonable for the officer to
suspect that criminal activity was afoot. “ „Indeed, the principal function of [police]
investigation is to resolve that very ambiguity and establish whether the activity is in fact
legal or illegal . . . .‟ [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 233; see also
Arvizu, supra, 534 U.S. at p. 274 [the totality-of-the-circumstances standard precludes a
“divide-and-conquer analysis” under which factors that are “readily susceptible to an
innocent explanation [are] entitled to „no weight‟ ”].) Moreover, in the present case
46
several of the cited circumstances do not undercut the suspicion of criminal activity. A
reasonable officer in Officer Wightman‟s circumstances might surmise that the Fairmont
had been stolen within the previous minutes, at a time when the dealerships were closed
and most persons were asleep, and that therefore it would be unlikely the owner had
discovered the theft, let alone reported it to the police. The circumstance that the
Fairmont was registered to a private person did not signify that it could not have been
taken from a dealership — the dealer might have recently purchased it and not yet
updated the ownership records, or the car could have been at the dealership for repairs.
There was no evidence presented at the hearing suggesting that the roads (as opposed to
cars parked in the downtown area) were wet or unsafe to the point where it would be
necessary or prudent for a driver to travel on the freeway at a significantly reduced speed.
Similarly, as to the performance of the Fairmont‟s engine, Officer Wightman testified
that its sound did not indicate to him that the vehicle was incapable of achieving a speed
greater than the 40 miles per hour it was traveling on the highway, and defendants
presented no evidence to the contrary. In addition, although it might not appear that the
driver of the Fairmont had been trying to avoid the officer when driving on the city
streets before entering the freeway, a reasonable officer in these circumstances
nonetheless might suspect that traveling at a slow speed on the freeway reflected an
attempt by the driver to avoid contact with the police.
For these reasons, we conclude the trial court properly found that Officer
Wightman was aware of specific articulable facts that, viewed in their totality, supported
a reasonable suspicion that the occupants of the Fairmont might be engaged in criminal
activity, justifying his action in stopping the vehicle. As the United States Supreme
Court has stated, “[a] brief stop of a suspicious individual, in order to determine his
identity or to maintain the status quo momentarily while obtaining more information,
may be most reasonable in light of the facts known to the officer at the time.” (Adams v.
47
Williams (1972) 407 U.S. 143, 146.) The trial court correctly denied defendants‟ motions
to suppress the evidence obtained as a result of the vehicle stop.
4. Denial of Motions to Sever Defendants’ Trials at the Guilt Phase (Letner,
Tobin)
Each defendant filed a pretrial motion to sever his trial at the guilt phase from that
of the other defendant, arguing that their defenses would be antagonistic and that their
constitutional right to confrontation would be violated by the admission of their
statements incriminating each other. (See Bruton v. United States (1968) 391 U.S. 123 [a
nontestifying codefendant‟s extrajudicial statement that incriminates both himself or
herself and the other defendant is inadmissible]; People v. Aranda (1965) 63 Cal.2d 518.)
As defendants observed, Tobin made statements to his mother and Jeanette Mayberry
admitting he was at Pontbriant‟s house on the night of the murder, but asserting he left
before Letner and at a time when Pontbriant was unharmed, whereas Letner asserted in
the letters written to inmate Danny Payne, and in statements made to Investigator
Johnson, Robert Hernandez, and Leo Pike, that Letner was present when Tobin killed
Pontbriant. The trial court denied the severance motions, with the understanding the
prosecutor would not be permitted to introduce statements that posed an Aranda/Bruton
problem. Defendants contend on appeal that the denial of their motions was an abuse of
discretion that violated their statutory rights, as well as their state and federal
constitutional rights.10
“Section 1098 provides in pertinent part: „When two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they must be
10
Tobin also filed a pretrial motion to sever his penalty phase trial from that of
Letner, and renewed that motion at several points during the penalty phase. During the
presentation of penalty phase witnesses, Letner also made an oral motion to sever the
remainder of the penalty phase trial. Defendants‟ appellate challenges to the trial court‟s
denial of those motions is discussed post, in part II.C.1.
48
tried jointly, unless the court order[s] separate trials.‟ Our Legislature has thus
„expressed a preference for joint trials.‟ [Citation.] But the court may, in its discretion,
order separate trials „in the face of an incriminating confession, prejudicial association
with codefendants, likely confusion resulting from evidence on multiple counts,
conflicting defenses, or the possibility that at a separate trial a codefendant would give
exonerating testimony.‟ [Citations.] [¶] We review a trial court‟s denial of a severance
motion for abuse of discretion based on the facts as they appeared at the time the court
ruled on the motion. [Citation.] If the court‟s joinder ruling was proper at the time it was
made, a reviewing court may reverse a judgment only on a showing that joinder
„ “resulted in „gross unfairness‟ amounting to a denial of due process.” ‟ ” (People v.
Avila (2006) 38 Cal.4th 491, 574-575 (Avila).)
To the extent defendants contend the trial court abused its discretion by finding the
defense cases were not so conflicting as to require a severance, they are incorrect.
Initially, it must be observed that this was a “ „ “classic case” ‟ ” for a joint trial, because
defendants mutually were charged with the same crimes arising from the same events.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).) The circumstance
that Letner and Tobin might attempt to fix blame on each other did not by itself require
separate trials.11 “If the fact of conflicting or antagonistic defenses alone required
11
We observe, however, that Tobin‟s defense did not rely upon establishing the guilt
of Letner, but instead asserted that the victim was unharmed when Tobin departed and
that Tobin had no knowledge of what subsequently happened to her.
We also observe that the circumstance that Letner ultimately chose not to testify at
the guilt phase of the trial — and therefore did not accuse Tobin of the murder, but
instead attacked the sufficiency of the prosecution‟s evidence — does not affect our
resolution of the contention that the trial court abused its discretion in denying the pretrial
severance motions. The court properly and necessarily based its ruling upon the record
before it, which clearly left open the possibility that Letner might accuse Tobin of having
committed the murder.
49
separate trials, it would negate the legislative preference for joint trials and separate trials
„would appear to be mandatory in almost every case.‟ ” (People v. Hardy (1992) 2
Cal.4th 86, 168.) Accordingly, we have concluded that a trial court, in denying
severance, abuses its discretion only when the conflict between the defendants alone will
demonstrate to the jury that they are guilty. If, instead, “there exists sufficient
independent evidence against the moving defendant, it is not the conflict alone that
demonstrates his or her guilt, and antagonistic defenses do not compel severance.”
(Coffman, supra, 34 Cal.4th at p. 41; see also People v. Carasi (2008) 44 Cal.4th 1263,
1297-1298 [“a joint trial is prohibited only where „ “the conflict is so prejudicial that
[the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict
alone demonstrates that both [defendants] are guilty” ‟ ”]; Avila, supra, 38 Cal.4th at
pp. 575-576.)
When the trial court ruled in the present case on the motions to sever, the evidence
before it — the testimony presented at the preliminary hearing — demonstrated that the
conflict between the potential defenses alone was not likely to lead the jury to reach
guilty verdicts. The evidence established that both defendants knew Pontbriant was alone
at her house and possessed a car and cash for the rent. Both defendants were found
traveling out of town in the victim‟s car on the night of the murder, and their belongings
were found in the trunk. They both provided conflicting accounts of where they were
going. They subsequently abandoned the car, leaving their possessions inside, and fled.
Moreover, forensic evidence discovered at the scene and in the victim‟s car pointed
toward each defendant‟s involvement in the murder. Finally, both defendants made
statements that were self-incriminating (apart from the excluded portions of the
statements that incriminated the other defendant). As in People v. Turner (1984) 37
Cal.3d 302, 313, in which we found no abuse of discretion in permitting a joint trial of
the defendants, when the trial court ruled on the motions to sever in the present case, “the
court was faced with two men charged with [a] murder[] under circumstances in which
50
all the events surrounding the crimes and ultimate arrests involved them jointly.” For
these reasons, the trial court did not abuse its discretion by denying their motions to
sever.
To the extent defendants assert that additional grounds not presented to the trial
court demonstrate the joint trial resulted in gross unfairness amounting to a denial of due
process of law, we are not persuaded.
Both defendants urge that severance was required because the prosecution
employed the joint trial to join a strong case with a weak one, and to take advantage of a
“prejudicial association” between the two defendants. We disagree. Notably, each
defendant asserts the evidence against him was weak compared to the stronger evidence
against his codefendant. We conclude, however, that the evidence presented against each
defendant at trial was, in general, of similar weight. The strengths and weaknesses of the
prosecution‟s case — considering its circumstantial nature, the credibility of the
witnesses, and the force of the physical evidence — for the most part were the same for
both defendants. We cannot say that the quantity and quality of the evidence implicating
one defendant compared to the other was so dissimilar that the jury likely convicted both
defendants based upon the strength of the evidence against only one of them.
Similarly, we do not discern any inappropriate reliance upon the prejudicial nature
of the association between the two defendants. Defendants observe that the prosecutor
acknowledged to the jury it was difficult to point to evidence that definitively established
the role of each defendant in the crimes committed against Pontbriant, but the prosecutor
nonetheless argued that the evidence, including defendants‟ history of close friendship,
demonstrated they were equally culpable. We reject defendants‟ contention that this
argument improperly appealed to the jury to consider “guilt by association” — an
51
improper consideration that could have been avoided by severance of defendants‟ trials.12
A prejudicial association justifying severance will involve circumstances in which the
evidence regarding one defendant might make it likely the jury would convict that
defendant of the charges and, further, more likely find a codefendant guilty based upon
the relationship between the two rather than upon the evidence separately implicating the
codefendant. (See People v. Chambers (1964) 231 Cal.App.2d 23, 29 [concluding that
the defendant “was probably fastened with vicarious responsibility for the long-continued
brutality of [the codefendant],” and that the jury likely convicted the defendant based
upon a “notion of joint moral responsibility” rather than personal guilt]; People v. Massie
(1967) 66 Cal.2d 899, 917 & fn. 19 [citing Chambers concerning “prejudicial association
with codefendants” warranting severance]; People v. Biehler (1961) 198 Cal.App.2d 290,
298 [“the vices inherent in a mass trial such as was had in the instant case are the danger
that the jury will find one or more defendants guilty as charged because of his association
with evil men”]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1286 [“Since
defendants were crime partners in several of the robberies and in the murder, prejudicial
association with a codefendant is not a factor.”].) The prosecution‟s argument in the
present case — that it was probable Letner and Tobin acted in concert, because they had
a history of doing so — was not an appeal to find guilt by association, but rather was a
proper argument based upon reasonable inferences the jury could draw from the evidence
it had heard. (Cf. People v. Champion (1995) 9 Cal.4th 879, 921 [the prosecution‟s
introduction of evidence of defendants‟ membership in a criminal street gang was not an
attempt to prove “guilt by association”; evidence of gang membership “formed a
12
We also observe that during the trial, defendants did not object to the prosecutor‟s
argument or request an admonition — for example, a reminder that the jury was required
to consider separately the question of each defendant‟s guilt. (As noted post, however, the
jury ultimately was so instructed).
52
significant evidentiary link in the chain of proof tying them to the crimes”].) Moreover,
the jury repeatedly was instructed at the conclusion of the guilt phase that it must
consider separately the evidence against each defendant and reach a verdict as to each
based solely upon the evidence admitted against him. Although Letner asserts the
“reality of trial practice” is that such instructions are ineffective, we presume the jury
followed these instructions. (Coffman, supra, 34 Cal.4th at pp. 43-44.) The prosecutor‟s
argument did not result in gross unfairness that would warrant setting aside the verdict
rendered following the joint trial.
Letner also asserts that severance was required because Tobin acted as a “second
prosecutor,” thereby reducing the prosecution‟s burden to prove its case against Letner,
as well as adversely affecting Letner‟s ability to present his own defense. For the most
part, this claim appears to be a variation of the claim we already have rejected,
concerning the necessity for severance because of defendants‟ allegedly conflicting
defenses. Tobin‟s presentation of evidence tending to incriminate Letner did not lessen
the prosecution‟s burden, or result in gross unfairness amounting to a denial of due
process. As we have explained, because there was sufficient independent evidence of
guilt, the conflict between defendants did not lead by itself to Letner‟s conviction, and
therefore severance was not required.
Further, the record does not confirm Letner‟s contention on appeal that he chose
not to testify at the guilt phase because of a concern related to his joint trial; Letner and
his attorney offered ambiguous explanations for this decision.13 In addition, the assertion
13
According to his counsel, Letner‟s decision not to testify “is the decision reached
by the defendant as a result of the state of the evidence, and the evaluation and with
regard to possible impeachment testimony which might be brought before the Court. [¶]
His rights with regard to testifying have been explained to him. [¶] He feels
uncomfortable testifying at this stage, due to the fact that it is a joint trial. Due to the fact
some evidence may or may not be admissible in this trial that may have been admissible
in a single trial. [¶] He wishes — he‟s always moved for that purpose, so that he could
(footnote continued on next page)
53
that Letner chose not to testify because he was jointly tried with Tobin is contradicted by
Letner‟s penalty phase testimony that the reason he did not testify at the guilt phase was
that he did not want to have a “rat jacket” in prison. Even if the record established that
Letner chose not to testify because of some concern related to his joint trial with Tobin,
Letner does not offer any authority supporting his claim that, despite proper joinder of the
trial, the strategic decision he was required to make between testifying and remaining
silent resulted in a gross unfairness amounting to a denial of due process and in other
respects denied him his constitutional rights. As we have observed, “ „[T]he criminal
process . . . is replete with situations requiring the “making of difficult judgments” as to
which course to follow. [Citation.] Although a defendant may have a right, even of
constitutional dimensions, to follow whichever course he chooses, the Constitution does
not by that token always forbid requiring him to choose.‟ ” (People v. Caro (1988) 46
Cal.3d 1035, 1056 [quoting McGautha v. California (1971) 402 U.S. 183, 213].)
Similarly, Letner‟s contention that the jury held against him his failure to testify at the
guilt phase, even though the trial court instructed the jury not to do so, lacks any support
in the record.
In sum, defendants have failed to demonstrate that the trial court abused its
discretion by denying their motions to sever their joint trial on the issue of guilt. Nor
have they shown that any aspects of the joint trial, when considered separately or
cumulatively, resulted in gross unfairness amounting to a denial of due process or a
violation of their constitutional rights to a reliable and individualized verdict.
(footnote continued from previous page)
testify. [¶] But the way things have turned out in this case he‟s chosen not to testify.
Letner stated, “the reason I didn‟t testify was because they promoted all these
liars. [¶] And I get up there, and they‟re just going to hear all this stuff.”
54
5. Use of Leg Brace Restraints During Jury Voir Dire (Letner)
On Monday, November 20, 1989, the trial court, having concluded individual voir
dire of the prospective jurors, began group voir dire of those prospective jurors who had
not been excused. Before the proceedings began, however, defendants objected that, for
the first time during the proceedings, the sheriff‟s deputies had required the two
defendants to wear leg brace restraints under their pants. A sergeant with the sheriff‟s
office told the court that the deputies had security concerns because Letner, while
wearing normal restraints, had attempted to assault another inmate, and both defendants
had been seen practicing martial arts kicks in the jail‟s exercise yard. (We also note that,
as described above, Letner had escaped from custody while being extradited to California
to face the present charges.) The trial court found that the leg braces did not appear to be
unduly restrictive, could not be easily seen, and were “not likely to create any possibility
of prejudice.” The court stated it therefore would “defer” to the deputies‟ decision to
apply the restraints.
The following day, after the jury had been empanelled, the trial court noted for the
record that after its ruling the previous day permitting the use of restraints, Tobin‟s leg
brace had been damaged and was unusable. The court stated it had determined that no
other restraints should be imposed, and therefore defendants would not be restrained for
the remainder of the trial.
Letner contends on appeal that requiring him to wear the leg brace on November
20, 1989, violated his rights under the state and federal Constitutions to due process, to
the assistance of counsel, and to present a defense. His contention is unpersuasive. The
applicable rule is that “ „[a] defendant cannot be subjected to physical restraints of any
kind in the courtroom while in the jury‟s presence, unless there is a showing of a manifest
need for such restraints.‟ [Citation.] „The imposition of physical restraints in the absence
of a record showing of violence or a threat of violence or other nonconforming conduct
will be deemed to constitute an abuse of discretion‟ under state law. [Citation.] Under
55
the federal Constitution, where a court ordered a defendant, without adequate
justification, to wear restraints that were seen by the jury, the state must prove beyond a
reasonable doubt that the unjustified shackling did not contribute to the verdict.
[Citation.] „The trial court may not delegate to law enforcement personnel the decision
whether to shackle a defendant.‟ [Citation.]” (People v. Ervine (2009) 47 Cal.4th 745,
773 (Ervine).)
Despite Letner‟s speculation to the contrary, there is no evidence in the record that
any of the prospective jurors were able to see his leg brace. Indeed, the trial court, during
record settlement proceedings, found that the leg brace was not visible to the prospective
jurors. In addition, Letner was restrained on the day prior to that on which the jury was
empanelled, and it is unclear how many, if any, of the jurors who ultimately served on the
jury would have seen the brace that day.
Letner contends, however, that under the high court‟s decision in Deck v. Missouri
(2005) 544 U.S. 622, respondent must establish beyond a reasonable doubt that the
prospective jurors did not see the leg brace. Deck does not support his contention. In
that case, the high court observed that the record “makes clear that the jury was aware of
the shackles” (id. at p. 634), and held that “where a court, without adequate justification,
orders the defendant to wear shackles that will be seen by the jury, the defendant need not
demonstrate actual prejudice to make out a due process violation. The State must prove
„beyond a reasonable doubt that the [shackling] error complained of did not contribute to
the verdict obtained.‟ ” (Id. at p. 635, italics added.). In Deck there was no dispute that
the restraints were visible to the jury — a circumstance that courts consistently have
viewed as inherently prejudicial. In the present case, we do not presume the prospective
jurors viewed the restraint, and there is no evidence in the record demonstrating they did
observe it.
There also is no evidence in the record that the leg brace was so physically
restrictive or uncomfortable that Letner‟s ability to assist his attorney in conducting voir
56
dire of the prospective jurors was impaired. Letner‟s reliance upon our decision in
People v. Mar (2002) 28 Cal.4th 1201 (Mar), in support of this aspect of his claim, is
unavailing. First, that case concerned the use of a “stun belt,” a device worn around the
defendant‟s waist, capable of delivering “ „an eight-second, 50,000-volt electric shock if
activated by a remote transmitter which is controlled by an attending officer. The shock
contains enough amperage to immobilize a person temporarily and cause muscular
weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the
ground by the shock and shakes uncontrollably. Activation may also cause immediate
and uncontrolled defecation and urination, and the belt‟s metal prongs may leave welts on
the wearer‟s skin requiring as long as six months to heal. An electrical jolt of this
magnitude causes temporary debilitating pain and may cause some wearers to suffer
heartbeat irregularities or seizures.‟ ” (Id. at p. 1215.) There is no evidence that the leg
brace worn by Letner created a remotely comparable level of potential pain, injury, and
humiliation, such that Letner‟s ability to concentrate and participate in the trial
proceedings similarly might have been affected. The sole evidence in the record
concerning any possible adverse physical effect of the brace was Tobin‟s statement to the
trial court that the brace he wore was “very” uncomfortable.
Second, in Mar the credibility of the witnesses, including the defendant, was a key
issue, and the defendant stated on the record that wearing the stun belt “made it difficult
for him to think clearly and that it added significantly to his anxiety, and the trial
transcript confirm[ed] that defendant was nervous while testifying at trial.” (Mar, supra,
28 Cal.4th at p. 1224.) In Mar, therefore, use of the stun belt could have affected a
critical aspect of the defense case: the jury‟s perception concerning whether the
defendant was truthful in his testimony. In the present case, there is no evidence in the
record demonstrating that Letner‟s ability to participate was affected in any manner by
his wearing the leg brace, and the proceeding in question (a single day of jury voir dire)
57
was not of the same critical importance to Letner‟s participation as was the defendant‟s
testimony in his own defense in Mar.
Accordingly, even were we to conclude that the trial court erred by choosing to
“defer” to the sheriff‟s deputies in permitting the use of the leg brace for one day of the
proceedings, any error was plainly harmless. (Ervine, supra, 47 Cal.4th at pp. 773-774
[the unjustified shackling of a defendant is harmless when the jury did not see the
restraint and there was no impairment of the defendant‟s ability to communicate with
counsel or participate in his or her defense].)
B. Guilt Phase Issues
1. Assertedly Erroneous Evidentiary Rulings
a. Admission of Letner’s Statements Against Tobin as Adoptive
Admissions (Tobin)
Tobin contends the trial court abused its discretion by admitting against him the
statement made by Letner to Officer Wightman, when the officer conducted the vehicle
stop of Pontbriant‟s car, that Letner was “taking [my] friend home.” Tobin asserts, as he
did in the trial court, that the statement was hearsay under section 1200 of the Evidence
Code,14 and that there was an insufficient foundation for admitting it under the exception
applicable to “adoptive admissions” under Evidence Code section 1221.15 As the
prosecutor and the trial court observed at the trial, however, the statement was not
14
Evidence Code section 1200 provides that hearsay evidence — defined as
“evidence of a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated” — is inadmissible
except as provided by law.
15
Evidence Code section 1221 provides that “[e]vidence of a statement offered
against a party is not made inadmissible by the hearsay rule if the statement is one of
which the party, with knowledge of the content thereof, has by words or other conduct
manifested his adoption or his belief in its truth.”
58
hearsay, and therefore whether or not it constituted an “adoptive admission” under the
statute is of no moment. Letner‟s statement that he was “taking [my] friend home” was
not offered to demonstrate that Tobin “adopted” the truth of the matter asserted, but
rather, because the statement was a lie, to demonstrate consciousness of guilt. This false
statement was relevant because it was made (and the jury could infer its falsity from other
evidence), and not because it was a true statement. Because the statement was not
inadmissible under the hearsay rule, it was unnecessary to establish whether it fell within
the adoptive-admission exception to the hearsay rule. (See, e.g., People v. Curl (2009) 46
Cal.4th 339, 362 [the inconsistent-statement hearsay exception under Evid. Code, § 1202
does not apply to a statement admitted for the nonhearsay purpose of showing
consciousness of guilt]; People v. Noguera (1992) 4 Cal.4th 599, 624-625.) The trial
court did not err by overruling Tobin‟s objection.
Although Tobin has failed to articulate the point adequately either in the trial court
or on appeal, arguably the statement should have been admitted as evidence only of
Letner‟s, and not Tobin‟s, consciousness of guilt. The trial court touched on the subject,
noting that in its view, the statement‟s admissibility against Tobin was a “question of
fact,” and the court offered to instruct concerning “when somebody can be deemed to
adopt or not adopt an admission like that if you want one.” No such instruction was
given during Officer Wightman‟s testimony or at the conclusion of the guilt phase. Even
assuming Tobin did not forfeit the claim that the trial court erroneously failed to instruct
the jury that the statement could be considered only as to Letner, we conclude that any
possible error was harmless. Officer Wightman also testified that Tobin himself told
Wightman they were taking Tobin home to the house on South Crenshaw where he
resided with a woman named Jeanette, although it was established at trial that Tobin had
not resided there for some time. Accordingly, the jury had before it similar evidence
from Tobin himself revealing potential consciousness of guilt.
59
b. Cross-Examination of Tobin Regarding Stolen Property (Letner,
Tobin)
Prior to trial, the prosecution informed the trial court it intended to present
evidence indicating that Letner had stolen from a local beauty parlor the bags of beauty
products found in Pontbriant‟s car after the murder. The prosecutor argued that the theft
of the items was relevant to establish that defendants had brought the items with them in
the car in order to attempt to sell them to raise money for their escape. Defendants
objected to the admission of this evidence on the ground it constituted irrelevant “other
crimes” evidence that improperly would imply defendants were the type of individuals
who committed burglaries, such as the offense charged in the present case. The trial
court ruled that the evidence would be admissible to demonstrate, as the prosecutor
argued, consciousness of guilt reflected in a plan to facilitate defendants‟ escape. The
court found that the possible prejudicial effect of admitting this evidence was slight in
view of the nature of the charges, and advised that it would instruct the jury that the
evidence was admitted for a limited purpose.16
During the prosecution‟s case-in-chief, Jeanette Mayberry testified that the bags of
beauty products belonged to Letner, and that he told her he stole the items from a store in
Visalia. Upon a defense objection, the trial court refused to strike the testimony but
admonished the jury that “as to whether he stole these, or didn‟t steal them is not an issue
before you, and you shouldn‟t consider that as to whether [defendants] are guilty or not
16
The court gave such an instruction at the conclusion of the guilt phase: “Evidence
has been introduced showing that a defendant committed a crime other than that for
which he is on trial. [¶] Such evidence, if believed, was not received, and may not be
considered by you to prove that defendant is a person of bad character, or he or she had a
disposition to commit crimes . . . . [¶] Such evidence was received, and may be
considered by you only for the limited purpose of determining if it tends to show, one,
motive for flight, or two, to facilitate flight from crime.”
60
guilty of the crimes with which they are charged.” The prosecution presented no other
evidence concerning the stolen beauty products during its case-in-chief.
During his direct examination, Tobin testified that he knew the bags of beauty
products had been placed in Pontbriant‟s car. He also testified on direct examination that
after defendants spent the night in the house on South Crenshaw, Letner wanted to return
to the car but Tobin “didn‟t want to go near the car.” On cross-examination, the
prosecutor asked Tobin a number of questions concerning the beauty products. In
response to an initial question regarding whether Letner had said he had stolen the items,
Tobin answered, “He may have,” but after several more questions he stated Letner had
told him only that the items were “hot,” meaning they had been stolen. Neither defendant
objected to the prosecutor‟s questions. Later, on cross-examination by Letner‟s attorney,
Tobin testified that when Letner drove onto the highway, Letner was hoping — because
of his concern regarding the stolen items inside the vehicle — that the police car would
stop following them.17 Tobin also testified that the “major reason” he did not wish to
return to Pontbriant‟s car was because the stolen beauty products were still inside, and
thus he and Letner decided to abandon the vehicle.
On appeal, defendants contend that the trial court erred by permitting the
prosecutor to question Tobin concerning the beauty products having been stolen, and that
the admission of this testimony violated defendants‟ constitutional rights. Initially,
defendants incorrectly assert that defense counsel objected to the questions seeking to
elicit Tobin‟s knowledge that the beauty products had been stolen. To the contrary, both
defense attorneys objected only when — after moving on from the issue of Tobin‟s
17
Counsel also asked Tobin, “Now, as to whether or not [Letner] stole those, that‟s
not an issue today. [¶] But . . . you believed that they were stolen property?” After
Tobin answered, “Yes,” counsel asked him, “And [Letner], at least, believed they were
stolen property, as far as you knew?” Tobin again answered, “Yes.”
61
knowledge that the items were stolen, and questioning Tobin regarding the toolbox that
also was found in Pontbriant‟s car — the prosecutor asked, “Would Richard Letner take
stolen items to the swap meet and sell them regularly?” The trial court sustained this
objection. Defense counsel again objected when the prosecutor later inquired where the
tools sold by defendants at the swap meets came from, and those objections again were
sustained. Defendants therefore forfeited their appellate challenges regarding the stolen
beauty products by failing to object during the prosecutor‟s examination. (People v.
Ledesma (2006) 39 Cal.4th 641, 714.) Moreover, even assuming that defendants‟ pretrial
objections to the prosecutor‟s offer of proof concerning the stolen beauty products
constituted an in limine motion to exclude evidence of this nature, defendants were
required to renew their objection at trial, when the trial court would have the opportunity
to evaluate their objections in light of the actual evidence presented. (People v. Brown
(2003) 31 Cal.4th 518, 547 [“[t]he general rule is that „when an in limine ruling that
evidence is admissible has been made, the party seeking exclusion must object at such
time as the evidence is actually offered to preserve the issue for appeal‟ ”].) The
requirement of a contemporaneous objection is especially applicable in the present case,
because prior to trial defendants objected to the prosecution‟s presentation of the
evidence in its case-in-chief, and the testimony challenged on appeal was elicited in the
course of cross-examining Tobin during his own defense case, following (1) his
testimony on direct examination establishing that he knew the beauty products had been
placed in the car, (2) Jeanette Mayberry‟s testimony indicating that the items were stolen,
and (3) the trial court‟s admonition to the jury not to consider Mayberry‟s testimony with
regard to the identity of the thief. (People v. Morris (1991) 53 Cal.3d 152, 190 [an in
limine motion, without a contemporaneous objection at trial, is sufficient to preserve an
objection for appeal only when “(1) a specific legal ground for exclusion is advanced and
subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body
of evidence; and (3) the motion is made at a time before or during trial when the trial
62
judge can determine the evidentiary question in its appropriate context”].) Indeed, one
reasonably might conclude Letner and Tobin purposefully chose not to object to the
prosecutor‟s cross-examination, in the hope of using evidence of the stolen character of
the items to explain why defendants drove onto the highway (rather than to Pontbriant‟s
house, where they purportedly were to store their belongings) when the officer followed
them, and why they abandoned the car (and their belongings) on the side of the road after
the traffic stop. Because on appeal defendants challenge the admissibility of Tobin‟s
testimony based primarily upon their pretrial arguments and the trial court‟s ruling, and
because their failure to object to the testimony during the cross-examination denied the
prosecutor an opportunity to justify its admission in light of the state of the evidence at
that point in the trial, and denied the trial court an opportunity to decide this issue in the
first instance, their claims are forfeited. In any event, based upon the record before us,
we cannot conclude the trial court abused its discretion by allowing the prosecutor to
question Tobin concerning a subject that Tobin brought up in his own testimony. (People
v. Mayfield (1997) 14 Cal.4th 668, 754 (Mayfield) [cross-examination can explore a
defendant‟s testimony in greater detail than the direct testimony, and, in general, the
permissible scope of cross-examination is very wide].)
2. Assertedly Insufficient Evidence
At the close of the prosecution‟s case-in-chief, defendants moved pursuant to
section 1118.1 to dismiss the charges of attempted forcible rape, robbery, and burglary
and the related special circumstance allegations, based upon the alleged insufficiency of
the evidence. The trial court denied the motions. On appeal, defendants renew their
challenges to the sufficiency of the evidence. As discussed below, we conclude the
evidence is sufficient to support the convictions and the findings regarding the special
circumstance allegations. Because there was sufficient evidence to sustain all of the
convictions and findings, defendants‟ contention that their death sentences must be
63
vacated if any one of the convictions or special circumstance findings is reversed also
fails.18
Defendants initially contend that because they have been sentenced to death, we
are required by the Eighth Amendment to the United States Constitution to apply a
“heightened” standard of review to their claims, rather than the standard we routinely
apply in both capital and noncapital cases, which is “review [of] the entire record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence — that is, evidence that is reasonable, credible, and of solid value — from
which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt” (People v. Cole (2004) 33 Cal.4th 1158, 1212), “presum[ing] in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence” (People v. Kraft (2000) 23 Cal.4th 978, 1053).19 Defendants are
mistaken. As the United States Supreme Court has held in a similar context, “the
standard of federal [constitutional] review for determining whether a state court has
violated the Fourteenth Amendment‟s guarantee against wholly arbitrary deprivations of
liberty is equally applicable in safeguarding the Eighth Amendment‟s bedrock guarantee
against the arbitrary or capricious imposition of the death penalty.” (Lewis v. Jeffers
18
To the extent defendants contend on appeal that the trial court erred by denying
their motions for acquittal made at the conclusion of the prosecution‟s case-in-chief, this
contention is without merit. As we shall explain, based upon our review solely of the
evidence presented in the prosecution‟s case-in-chief, that evidence is sufficient to
support the jury‟s verdicts on all of the charges and allegations. Accordingly, the trial
court properly denied the motions for acquittal. (See People v. Harris (2008) 43 Cal.4th
1269, 1286 [“On a motion for judgment of acquittal under section 1118.1, the trial court
applies the same standard as an appellate court reviewing the sufficiency of the
evidence.”].)
19
In capital cases, we apply this same standard in reviewing the sufficiency of the
evidence supporting both the convictions and the special circumstance findings. (People
v. Rowland (1992) 4 Cal.4th 238, 271.)
64
(1990) 497 U.S. 764, 782 [applying the standard established in Jackson v. Virginia
(1979) 443 U.S. 307, to federal constitutional review of the state court‟s finding of an
aggravating circumstance in a capital case].) As the high court observed in Jeffers, the
application of the facts to the law at a state court trial — that is, the determination of
whether the evidence is sufficient to sustain the charges — is a question of state law,
except to the extent that the determination of sufficiency at issue was arbitrary or
capricious under the federal due process or cruel and unusual punishment clauses. The
application of state law in determining the sufficiency of the evidence will be considered
arbitrary and capricious, and therefore a federal constitutional violation, “if and only if no
reasonable sentencer [or factfinder] could have so concluded.” (Jeffers, supra, 497 U.S.
at p. 783.) Accordingly, we apply the standard of review set forth above to ensure that
defendants‟ state and federal rights are protected.
We also observe that for the most part, defendants dispute the persuasive value of
the evidence that was admitted against them, pointing to various inconsistencies and
inadequacies in the testimony of several witnesses and the physical evidence. In our
limited role on appeal, “[c]onflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury
(2003) 30 Cal.4th 342, 403.) Further, “if the circumstances reasonably justify the jury‟s
findings, the judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.” (People v. Farnam (2002) 28 Cal.4th
107, 143.) Accordingly, we need not — and do not — address all of defendants‟
assertions of conflicts in the evidence, or their alternative theories regarding the
inferences that should have been drawn from the evidence.
65
In general, the evidence presented was sufficient for a rational trier of fact to find
that Ivon Pontbriant was murdered in her residence during the evening hours of Tuesday,
March 1, 1988, and that defendants arrived at her home together that night while she was
alive and departed from the house together in her car after she was murdered.
Defendants‟ challenges focus upon the adequacy of the evidence (or the asserted lack of
evidence) to establish what occurred while they were at the victim‟s house — that is,
whether the evidence was sufficient to enable the jury to find that each of the two
defendants intended to and did commit, or aid and abet in the commission of, the charged
offenses, and to find true the related special circumstance allegations as to each
defendant.
a. Attempted Rape (Letner, Tobin)
Defendants contend that the evidence presented in the prosecution‟s case-in-chief
was insufficient to establish that an attempted forcible rape was committed and, even if
the crime was committed, which of the defendants participated either as a perpetrator or
an aider and abettor. We disagree.
“Conviction of the crime of attempted forcible rape requires proof the defendant
formed the specific intent to commit the crime of rape and performed a direct but
ineffectual act, beyond mere preparation, leading toward the commission of a rape.
[Citations.] The elements of the crime of forcible rape are „an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator . . . . [¶] . . . [¶] [w]here it
is accomplished against a person‟s will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the person of another.‟ (§ 261, subd.
(a)(2).)” (People v. Rundle (2008) 43 Cal.4th 76, 138 [fns. omitted] (Rundle).) The
felony-murder special circumstance, section 190.2, subdivision (a)(17), requires that
“[t]he murder was committed while the defendant was engaged in, or was an accomplice
in, the commission of, attempted commission of, or the immediate flight after
66
committing, or attempting to commit” one or more of the enumerated felonies. At the
time Pontbriant was murdered, the law provided that, as to the actual killer, “intent to kill
[was] not an element of the felony-murder special circumstance; but when the defendant
[was] an aider and abett[o]r rather than the actual killer, intent must be proved before the
trier of fact can find the special circumstance to be true.” (People v. Anderson (1987) 43
Cal.3d 1104, 1138-1139 (Anderson).)20
To summarize the evidence (drawing all reasonable inferences in favor of the
prosecution), Pontbriant‟s body was found unclothed except for her brassiere, which was
around her waist, and her socks. Her sweater had been cut at the neck and ripped the rest
of the way down to the bottom, but the sleeves were intact. Because her hands were tied
behind her back, the condition of her sweater indicated she was bound after having been
undressed. Her pants and underwear had fecal matter on them. Pontbriant had been
severely beaten, and several clumps of her hair had been pulled from her head. Several
of Letner‟s hairs, which had been pulled out of his head, and several hairs that could have
been pubic hairs from an unidentifiable donor, were found on Pontbriant‟s chest when her
body was rolled over. Semen that could have been deposited by Tobin, but not Walter
Gilliland, and blood consistent with Tobin‟s, were found in the bedroom, along with a
baseball hat that contained several of Letner‟s hairs. A beer bottle was tightly wedged
between Pontbriant‟s legs, near her genitals. This evidence was sufficient for the jury to
find that defendants attempted to rape Pontbriant. The jury also reasonably could have
found the murder was committed for the purpose of preventing Pontbriant from reporting
20
In 1990, subsequent to Pontbriant‟s murder, the voters adopted Proposition 115,
modifying aider-and-abettor liability under the felony-murder special circumstance to
provide that “a person other than the actual killer is subject to the death penalty or life
without parole if that person was a major participant in the underlying felony . . . and
either intended to kill or acted with reckless indifference to human life.” (People v.
Cleveland (2004) 32 Cal.4th 704, 752; § 190.2, subds. (c) & (d).)
67
the attempted rape to the authorities, and accordingly had occurred while defendants were
engaged in the commission of the attempted rape, or their immediate flight after
committing the crime. (§ 190.2, subd. (a)(17); People v. Guzman (1988) 45 Cal.3d 915,
952.)
Defendants point out that there was no evidence of sexual activity or trauma on
Pontbriant‟s genitals. Defendants, of course, were charged with an attempted rape, not a
completed rape, and thus the absence of evidence that Pontbriant actually was raped does
not preclude a finding of guilt. Furthermore, contrary to defendants‟ suggestion, there is
no requirement that the prosecution establish why an attempted rape was unsuccessful.21
Nonetheless, a rational trier of fact could have found that the plan to have sexual
intercourse with Pontbriant was abandoned because she had defecated in her clothing and
had fecal matter on her body. Thus the lack of evidence of sexual activity on
Pontbriant‟s body reasonably may be explained, in contrast to those prior cases in which
we have considered the lack of evidence of a sexual assault as an indication that an
attempted rape or rape did not occur. (Cf. Rundle, supra, 43 Cal.4th at p. 139
[recognizing that the absence of evidence of a sexual assault may rebut other inferences
suggesting that the perpetrator intended to have sexual contact with the victim, but
holding that, in that case, the inconclusive nature of the evidence (because of the
decomposition of the victim‟s body) concerning whether a sexual assault had occurred
did not rebut such inferences].)
Defendants observe that we previously have held that the unclothed state of a
murder victim is, by itself, insufficient to prove that a rape or attempted rape has
occurred. (See People v. Johnson (1993) 6 Cal.4th 1, 41.) In the present case, however,
21
Indeed, the prosecution also need not prove that the attempt failed. (Rundle,
supra, 43 Cal.4th at p. 138, fn. 28 [“Under section 663, a defendant can be convicted of
an attempt to commit a crime even though the crime, in fact, was completed.”].)
68
a number of other circumstances, considered in conjunction with Pontbriant‟s nearly total
nudity, support the jury‟s verdict. The jury reasonably could have found Pontbriant had
been bound after defendants forcibly undressed her, supporting the inference that they
planned to do something to her that would be facilitated by her being unclothed, and in
which she would not be a willing participant. In addition, the presence of sperm in the
bedroom that could have been deposited by Tobin (but not Gilliland), the hairs found on
Pontbriant‟s chest, and the bottle that was wedged between her legs near her genitals
reasonably could be viewed as evidence of a sexual component of defendants‟ actions.
Defendants are correct in asserting that there is no direct evidence establishing
which one of them performed which act against Pontbriant (other than Tobin‟s testimony
that he had nothing to do with what happened to her, which the jury clearly rejected).
The jury‟s reliance upon circumstantial evidence and the reasonable inferences to be
drawn from that evidence, in determining whether both defendants were guilty, does not
demonstrate, as defendants urge, that the verdict was the result of speculation. Rather,
the evidence and the ensuing inferences adequately support the jury‟s finding that
defendants both were guilty of attempting to rape Pontbriant and of intentionally killing
her while they were engaged in committing that crime.
The evidence established that defendants had a history of acting in concert. They
had been friends for several years, they resided together in various dwellings during their
time in Visalia, and they engaged together in activities such as selling items at the local
swap meet, practicing Karate, and drinking and conversing at the Break Room Bar.
There was, in fact, evidence demonstrating that they supported each other in criminal
activities: Jeanette Mayberry testified that while Tobin assaulted her at the apartment on
Bridge Street two days before Pontbriant‟s murder, Letner, in addition to yelling insults
at Mayberry, encouraged Tobin to continue striking her. The evidence together with
reasonable inferences established that defendants went together to Pontbriant‟s house on
the night of the murder, left together in her car after she was killed, both lied to Officer
69
Wightman regarding where they were going, fled to Iowa together, and eventually were
arrested together. Neither of them had steady jobs or employment prospects in Visalia,
and both of them had tenuous living arrangements: they were soon to be evicted from the
Murray Street apartment for failing to pay the rent, and Jeanette Mayberry had just
thrown Tobin out of the Bridge Street apartment after a dramatic fight between them.
Forensic evidence reasonably could be viewed as indicating that both defendants directly
were involved in attempting to rape the victim: Letner‟s hairs, which had been forcefully
removed from his head, were found on Pontbriant‟s body, and semen and blood,
consistent with having come from Tobin, were found in the bedroom. Although
defendants attack the significance of the evidence and offer alternative explanations for
its existence, we cannot say that no rational trier of fact could have determined that the
evidence supported the finding that defendants, acting according to a common plan to
attack Pontbriant and steal her car in order to leave town, committed an attempted rape,
that Pontbriant‟s murder occurred during the course of the attempted rape, and that
defendants shared an intent to kill her in order to facilitate their escape. (See § 31
[defining as principals in a crime all persons who commit the crime or aid and abet in its
commission]; People v. Richardson (2008) 43 Cal.4th 959, 1023 (Richardson) [“An aider
and abettor is one who acts with both knowledge of the perpetrator‟s criminal purpose
and the intent of encouraging or facilitating commission of the offense.”]; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1130 [the evidence was sufficient for the jury to infer
that the attackers‟ actions were coordinated pursuant to a joint plan].)
b. Robbery (Letner, Tobin)
Defendants‟ challenges to the robbery convictions and special circumstance
findings proceed along lines similar to their challenges to the attempted rape charges:
they dispute the credibility of the witnesses, minimize the significance of the physical
evidence, and contest the inferences that may be drawn from the evidence to establish
70
their guilt. But, as we have observed, on appeal we do not judge the trustworthiness of
witnesses, reweigh the evidence, or assess for ourselves which interpretation of the
evidence is the “right” one. Resolving the conflicts in the evidence was the province of
the jury, and we cannot say that no rational trier of fact reasonably could have found
defendants guilty of having robbed Pontbriant. Moreover, even were we to discount the
testimony of Walter Gilliland and Earl Bothwell, as defendants urge us to do, we still
would conclude a rational trier of fact could find defendants guilty of robbing Pontbriant
and intentionally murdering her while engaged in that robbery.
“Robbery is „the felonious taking of personal property in the possession of
another, from [her] person or immediate presence, and against [her] will, accomplished
by means of force or fear.‟ (§ 211.) The intent to steal must be formed either before or
during the commission of the act of force.” (People v. Wallace (2008) 44 Cal.4th 1032,
1077 (Wallace).)
The jury reasonably could find that defendants were in possession of Pontbriant‟s
car, shortly after she was violently murdered. Based upon this evidence — by itself —
the jury reasonably could infer that defendants removed Pontbriant‟s car against her will
by killing her, thus committing a robbery and an intentional murder while engaged in a
robbery. (Hughes, supra, 27 Cal.4th at p. 357 [“We have stated that „when one kills
another and takes substantial property from the victim, it is ordinarily reasonable to
presume the killing was for purposes of robbery.‟ ”]; People v. Navarette (2003) 30
Cal.4th 458, 499 [“While it may be true that one cannot rob a person who is already dead
when one first arrives on the scene, one can certainly rob a living person by killing that
person and then taking his or her property.”].) For the same reasons expressed above
regarding defendants‟ challenges to the attempted rape findings, it was reasonable for the
jury to find that both defendants intended to rob and kill Pontbriant, and aided and
abetted each other in doing so. Defendants argue that it was possible they decided to take
Pontbriant‟s car only after they killed her. “The existence of this possibility [of after-
71
formed intent to steal], however, does not render the evidence insufficient.” (Wallace,
supra, 44 Cal.4th at p. 1078; Hughes, supra, 27 Cal.4th at pp. 357-358 [circumstances
that the defendant left other items of value in victim‟s home, and that there was “slim”
evidence suggesting when the intent to steal was formed, did not render unreasonable a
finding that the defendant committed a robbery].) We therefore conclude the evidence
was sufficient to support the jury‟s verdicts and findings on the robbery charges and the
related special circumstance allegations.
Tobin urges that the jury could not reasonably have found the taking of
Pontbriant‟s property was against her will and accomplished by force or fear, because she
might have been intoxicated to the point of unconsciousness at the time of the theft. We
disagree. A rational trier of fact clearly could have found that, had Pontbriant been
unconscious from drinking, defendants would not need to severely beat her, pull out her
hair, and bind her arms behind her back. Further, had she lost consciousness at some
point, a rational juror could find that she could not have remained in that condition during
such an assault. As mentioned above, the circumstance that defendants might have
rendered Pontbriant unconscious or killed her prior to actually taking the keys to her car
did not preclude a finding that they committed the offense of robbery, so long as they
previously formed the intent to steal. (See also People v. Frye (1998) 18 Cal.4th at 894,
956.)
In presenting his claim of insufficient evidence, Letner additionally asserts that the
prosecutor‟s presentation of Walter Gilliland‟s testimony establishing that he gave the
rent money to Pontbriant in defendants‟ presence constituted prosecutorial misconduct,
because the prosecutor knew or should have known this testimony was false. Even if
Letner had not forfeited this contention by failing to raise it in the trial court, it lacks
merit. The prosecutor properly could have concluded that the various inconsistencies in
Gilliland‟s testimony and pretrial statements created a credibility issue for the jury to
resolve. “When . . . the prosecution has doubts as to the truth of a statement it intends to
72
present at trial, it must disclose to the defense any material evidence suggesting that the
statement in question is false. But, notwithstanding those doubts, the prosecutor may still
present the statement to the jury.” (People v. Harrison (2005) 35 Cal.4th 208, 242.)
c. Burglary (Letner, Tobin)
Similar to their other challenges to the sufficiency of the evidence, defendants
point to evidence that assertedly contradicts the finding that they entered Pontbriant‟s
home with the intent to commit a felony and committed the murder while engaged in the
commission of the burglary. (See § 459 [“Every person who enters any house . . . with
intent to commit grand or petit larceny or any felony is guilty of burglary.”].) As
discussed above, however, we have concluded there was sufficient evidence for the jury
to find that defendants robbed and attempted to rape Pontbriant. As the prosecution
argued to the jury, it is reasonable to infer from the circumstance that defendants
committed these crimes that they possessed the intent to do so at the time they entered
Pontbriant‟s house. A rational juror reasonably could find that a purely social visit to a
friend‟s house did not spontaneously lead to the attempted rape, robbery, and brutal
murder of the hostess. The circumstance that Pontbriant may have willingly invited
defendants into her house is of no consequence. (Wallace, supra, 44 Cal.4th at p. 1060
[“The crime of burglary, however, requires only an entry with the requisite intent; the
entry need not be accomplished by force (italics omitted).”].) The circumstance that
defendants apparently waited some period of time prior to attacking Pontbriant, during
which the three of them consumed alcoholic beverages, could be viewed as an attempt to
make defendants‟ task easier by reducing the possibility that Pontbriant would be able to
resist. Further, Letner‟s participation in the telephone calls with Edward Burdette and
Kathy Coronado could indicate he was not concerned whether they in turn eventually
would inform the police he had been present in Pontbriant‟s house, because he believed
either that the person with whom Pontbriant was speaking on the telephone when
73
defendants first arrived knew that Letner was there, or that, if the police were to begin
looking for him, he nonetheless would be able to escape to Iowa. Alternatively, the jury
reasonably could find that Letner simply joined in the telephone calls in anger or on
impulse, without reflecting upon the possible consequences. In sum, as we recently
observed regarding a similar challenge, “possession . . . of goods stolen from the victim‟s
home shortly after the crimes is strong circumstantial evidence that [defendant] harbored
the intent to commit larceny when he entered her home. [Citation.] Moreover, „[t]here is
no better proof that [defendant] entered the [victim‟s house] with intent to commit
robbery than a showing he did in fact commit robbery after his entry.‟ [Citation.]”
(People v. Abilez (2007) 41 Cal.4th 472, 508 (Abilez).) Accordingly, we conclude the
evidence was sufficient to support the jury‟s finding that defendants committed a
burglary and intentionally killed Pontbriant while engaged in the burglary.
d. Premeditation and Deliberation
Defendants also challenge the sufficiency of the evidence supporting the jury‟s
first degree murder verdicts, to the extent these verdicts were based upon a theory of
premeditated and deliberated murder.22 “ „We need not consider this claim since reversal
is not necessary when the court can determine from the record that the verdict rested on a
theory which is supported by sufficient evidence. [Citation.]‟ [Citation.] We properly
can, and do, make that determination here.” (Rundle, supra, 43 Cal.4th at p. 141.) As
discussed ante, the evidence was sufficient to support a finding that defendants entered
Pontbriant‟s residence with the intent to commit a felony therein, robbed her and
attempted to rape her, and that, pursuant to section 189, Pontbriant was murdered in the
course of these crimes. The jury also found true the special circumstance allegations that
22
The jury‟s verdict did not specify whether it found defendants guilty of first
degree premeditated and deliberated murder, or felony murder.
74
defendants murdered Pontbriant while engaged in committing or attempting to commit
each of the underlying felonies, which indicates the jury necessarily found the elements
of first degree felony-murder had been proved. Therefore, we need not decide whether,
in addition, there was sufficient evidence to prove that Pontbriant‟s murder was the result
of premeditation and deliberation. (Ibid.)
Defendants also contend that even if there was sufficient evidence of
premeditation and deliberation, their first degree murder convictions should be reversed
because the jury may have relied upon the felony murder theory of liability, which, they
assert, was not supported by sufficient evidence. We have concluded, however, that
felony-murder liability was established by sufficient evidence.
e. Mental State for Special Circumstances (Tobin)
Tobin contends that as a matter of California law, there can be no special
circumstance finding based upon a defendant‟s having killed the victim during an
attempted rape. He asserts that such a killing cannot further the purpose of committing a
rape, because it is legally impossible to rape a dead person. We recently rejected the
identical claim in Rundle, supra, 43 Cal.4th at pages 155-156, and have no reason to
revisit that conclusion.
3. Asserted Prosecutorial Misconduct
Defendants claim several instances of asserted guilt-phase prosecutorial
misconduct denied them their rights under both the state and federal Constitutions. As
we shall explain, no misconduct by the prosecutor warrants reversing their convictions
and sentences. “Under California law, a prosecutor commits reversible misconduct if he
or she makes use of „deceptive or reprehensible methods‟ when attempting to persuade
either the trial court or the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted. [Citation.]
Under the federal Constitution, conduct by a prosecutor that does not result in the denial
75
of the defendant‟s specific constitutional rights — such as a comment upon the
defendant‟s invocation of the right to remain silent — but is otherwise worthy of
condemnation, is not a constitutional violation unless the challenged action „ “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.” ‟
[Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 298 (Riggs).)
Defendants did not object to all of the instances of asserted misconduct they raise
on appeal. “ „ “[A] defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion — and on the same ground — the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]” ‟ [Citation.]” (Riggs, supra, 44 Cal.4th at p. 298.) We
previously have rejected the notion, advanced by defendants, that the trial court had a
responsibility to intervene on their behalf, such that the failure to object and request an
admonition regarding each alleged act of misconduct is excused. (Ibid.) Defendants
present no compelling reason to revisit that decision. We shall address on a claim-by-
claim basis defendants‟ contentions that their failure to object to a particular instance of
asserted misconduct and to request an admonition is excused because their having done
so would have been futile or ineffective. “Because, as discussed below, we conclude that
the prosecutor committed no prejudicial misconduct, it follows there was no pervasive
misconduct that otherwise excused defendant[s‟] failure to object to the individual
instances of misconduct” they raise on appeal. (Ibid.)
a. Cross-Examination of Tobin Regarding the Term “Instant Death”
(Letner, Tobin)
During the prosecution‟s case-in-chief, the prosecutor notified the trial court that
she intended to call as witnesses two persons who knew defendants in Napa in the late
1970‟s. These witnesses would testify that defendants spoke of and were seen practicing
a martial arts technique causing the “instant death” of a victim by stabbing the sides and
base of the victim‟s neck. The prosecutor contended this testimony should be admitted as
76
circumstantial evidence tending to demonstrate that defendants murdered Pontbriant,
because her wounds could have been inflicted by someone attempting to cause this
manner of “instant death.” Defendants objected on the ground that, pursuant to section
352 of the Evidence Code, the probative value of the testimony on the subject of “instant
death” would be grossly outweighed by the risk of undue prejudice and the consumption
of time, because of (1) the prejudicial nature of the testimony indicating that defendants
practiced such acts, (2) the remoteness of the events to which the witnesses would testify,
and (3) the circumstance that these witnesses were “enemies” of defendants and therefore
were of questionable credibility, necessitating essentially a trial within a trial concerning
the various incidents that caused the rifts between them and defendants. The trial court
sustained defendants‟ objections to the testimony, finding that the evidence would tend to
establish defendants had “a murderer‟s disposition,” and that the method was not so
sufficiently unique that the evidence was of particularly compelling probative value in
establishing the identity of Pontbriant‟s killer.
Later, during Tobin‟s defense case, after he had testified he knew nothing
concerning Pontbriant‟s murder, the prosecutor asked two questions during cross-
examination regarding the term “instant death.” The following exchange occurred:
“Q [by prosecutor]: There is a term in karate that is known as instant death, isn‟t
there?
“[Objection by Tobin‟s attorney]: Your Honor, I‟m going to object to the
question.
“The Court: Overruled.
“[Tobin]: I don‟t know if there is or not.
“Q [by prosecutor]: You have never heard of instant death being caused by
sticking someone in the side of their neck at or near major arteries or veins?”
Counsel for both defendants again objected, and the trial court recessed the
proceedings to discuss the matter outside the presence of the jury.
77
Defense counsel argued that the prosecutor was engaging in “subterfuge,” in an
attempt to render admissible the previously excluded testimony from the two witnesses
concerning defendants‟ familiarity with the instant death technique, by eliciting a denial
from Tobin that then would be impeached by the witnesses. The prosecutor argued that
the trial court‟s prior ruling concerned evidence proposed to be presented as part of the
prosecution‟s case-in-chief, and that the context in which the admissibility of the
evidence would be determined had shifted once Tobin testified he had nothing to do with
the murder. The trial court, however, restated its finding that Pontbriant‟s wounds were
not particularly unusual, and that therefore questions concerning “instant death” would
not be permitted. At the conclusion of the short recess, the trial court admonished the
jury that the statements of the attorneys, including their questions, were not evidence, that
the jury should not assume the truth of anything insinuated in a question, and that if an
objection to a question was sustained, the jury should not guess at what the answer might
have been. The trial court, however, did not strike Tobin‟s answer to the first question —
there was no request by defendants that it do so. The prosecutor then moved on to a
different subject.
During the prosecution‟s opening argument at the conclusion of the guilt phase, in
the course of asserting that the nature of the wounds to Pontbriant‟s neck showed that the
murder was “a calculated killing,” the prosecutor stated: “The location of these stab
wounds, as testified to through Dr. Walter, were placed very strategically, almost over
vital blood vessels and arteries that supply blood and take away blood from the head.
That is something known to cause what‟s called „instant death,‟ if the arteries are actually
stricken. [¶] And then we had the testimony about the spinal cord. At that location in
the neck it‟s — it‟s a very vital, vital area. And one that can also cause death very
quickly.” Neither defendant objected to the prosecutor‟s statements.
On appeal, defendants contend the prosecutor committed misconduct in
questioning Tobin concerning the “instant death” technique and then mentioning that
78
term during argument to the jury. We conclude there was no misconduct warranting
reversal of the judgments.
Assuming that defendants‟ assertions during trial that the prosecutor was engaging
in “subterfuge” were sufficient to preserve for appeal a claim of misconduct regarding the
prosecutor‟s cross-examination, defendants have failed to establish that any misconduct
occurred. We do not view as unreasonable, even though it was rejected by the trial court,
the prosecutor‟s contention that Tobin, by taking the stand and denying his involvement
in the murder, opened the door to being cross-examined concerning the possibility that
Pontbriant‟s wounds reflected a particular martial arts technique with which he was
familiar. (Mayfield, supra, 14 Cal.4th at p. 754 [the permissible scope of the cross-
examination of a testifying defendant generally is very wide]; People v. Freeman (1994)
8 Cal.4th 450, 495 [“merely asking a question to which an objection is sustained does not
itself show misconduct”].) Indeed, in their briefs, defendants mischaracterize the record.
The trial court never ruled that the prosecutor‟s questions were improper, as asserted by
defendants. The court excluded evidence concerning the subject of the “instant death”
technique from the prosecution‟s case-in-chief, but overruled the objection to the
prosecutor‟s first question and permitted Tobin‟s answer (that he had not heard of the
term “instant death”) to stand. What the court made clear in its subsequent ruling outside
the presence of the jury was that the prosecution would not be permitted to attempt to
impeach Tobin‟s answer by demonstrating that he did know of the term “instant death.”
Therefore, because Tobin had testified he had no knowledge of the “instant death”
technique, there simply was no further area of inquiry regarding that subject open to the
prosecutor. The trial court also informed the jury that it was not to rely upon the
prosecutor‟s question as evidence that the “instant death” technique existed or that Tobin
was aware of it.
For these same reasons, even if we were to conclude that the prosecutor had
engaged in misconduct, any such misconduct could not have been prejudicial. The only
79
evidence admitted at the trial on this issue was that Tobin had not heard of the term
“instant death.” Contrary to defendants‟ assertions that the jury would have been unable
to follow the trial court‟s admonition not to consider the prosecutor‟s questions as
evidence that there was such a technique and that Tobin was familiar with it, we presume
the jury followed the court‟s instructions not to do so. (Avila, supra, 38 Cal.4th at
p. 610.) There is no reasonable probability that, had the prosecutor not broached this
subject with Tobin, the jury would have reached a different verdict, nor can we conclude
that these two brief questions (which were followed by a negative response by Tobin and
the trial court‟s proper admonition concerning the applicable law) denied defendants a
fair trial.
In arguing that the jury was prejudiced by the prosecutor‟s questions, Letner‟s
reliance upon our decision in People v. Wagner (1975) 13 Cal.3d. 612, 619-620, is
misplaced. That case involved a situation in which a prosecutor attempted to impeach the
defendant‟s testimony regarding his good moral character by asking a series of highly
detailed questions concerning asserted specific criminal activities (not felony
convictions) by the defendant for which the prosecutor offered no independent evidence.
The defendant answered in the negative to each question. (Id. at pp. 616-617.) We
concluded that attempting to rebut the defendant‟s character evidence in such a manner
was improper, and that the impropriety was not cured by the circumstance that the
defendant had answered “no” to each question and the trial court later had admonished
the jury not to view the attorneys‟ statements as evidence. As we observed, a prosecutor
may not “interrogate witnesses solely „for the purpose of getting before the jury the facts
inferred therein, together with the insinuations and suggestions they inevitably contained,
rather than for the answers which might be given.‟ ” (Id. at p. 619.) In addition, we
noted that the subject matter at issue in Wagner (the defendant‟s credibility) was crucial
to resolving the charges, and that the evidence in favor of and against a finding of guilt
was closely balanced. (Id. at p. 621.)
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The extent and possible effect of any prosecutorial impropriety in the present case
was in no way comparable: the questioning was not part of an attempt to impeach
Tobin‟s asserted good moral character; the subject matter of the questions (whether Tobin
knew of the “instant death” technique) did not focus upon specific instances of unproved
criminal activity or involve a critical aspect of the trial; the extent of the questioning was
quite limited; the evidence of defendants‟ guilt or innocence was not closely balanced;
and it does not appear that the prosecutor asked the questions without regard to what
Tobin‟s answers might be. Accordingly, we discern no reasonable probability that the
questions were prejudicial. The possibility that Letner was prejudiced is even more
remote, in light of the circumstance that the prosecutor never asked any questions
concerning Letner‟s knowledge of the technique.
Turning next to the prosecutor‟s observation during argument to the jury that
stabbing someone in a way that cuts the blood vessels in the victim‟s neck “is something
known to cause what‟s called „instant death,‟ ” we note that defendants did not object at
trial to this comment. An objection on the ground that, for example, the argument
referred to facts not in evidence (e.g., defendants‟ knowledge of the “instant death”
technique), together with a request for an admonition, would not have been futile or
ineffective. Therefore, defendants have forfeited their appellate claim of misconduct. In
any event, no misconduct occurred.
The prosecution‟s pathology expert did, in fact, testify that had both of
Pontbriant‟s carotid arteries been severed by the stab wounds in her neck, “a loss of
consciousness would have been very quick, almost immediate. [¶] A death depends on
how you define death. [¶] But the actual cessation of brain function and the heart action
may have taken several minutes to occur.” The expert also agreed that the severing of the
spinal cord in the area in which Pontbriant was cut could cause death to occur “basically,
instantly.” The prosecutor reasonably could argue from this testimony that the wounds
inflicted upon Pontbriant could have caused what the expert called an instant death, and
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that this was evidence of a calculated murder rather than of merely haphazard actions.
Even were we to conclude the prosecutor improperly was attempting to refer the jury
back to the cross-examination of Tobin regarding the subject of the “instant death”
technique, and to argue facts not in evidence (that there was a martial arts technique
called “instant death” with which Tobin was familiar), there is no possibility of prejudice.
Such an oblique reference to a subject that had been mentioned very briefly in the midst
of trial more than a week earlier was not likely even to attract the jury‟s notice.
Moreover, as mentioned above, we presume that, even had the jury recognized the
reference, it would have followed the trial court‟s instructions not to consider the
attorneys‟ statements and questions as evidence of any fact. Accordingly, there is no
reasonable possibility that in the absence of the prosecutor‟s comment the jury would
have reached a verdict more favorable to defendants, nor were they deprived of a fair
trial.
b. Failure to Provide Defendants with Criminal History of Prosecution
Witness Jeanette Mayberry (Letner, Tobin)
On January 25, 1990, during the presentation of penalty phase witnesses, Letner‟s
attorney notified the trial court that the defense had discovered that prosecution witness
Jeanette Mayberry had an outstanding warrant for her arrest on a misdemeanor petty theft
charge from a neighboring county, and had two criminal matters pending in the Tulare
County court. The arrest warrant stemmed from a misdemeanor charge of petty theft
filed in 1986 in Fresno County. In May 1989, prior to the commencement of defendants‟
trial, Mayberry separately was charged in Tulare County with a felony for writing bad
checks, and a misdemeanor for the theft of clothing from a department store. In July of
that year she pleaded guilty to the Tulare theft charge and was sentenced to 30 days in
jail. Also in July, the bad check charge was reduced to a misdemeanor, to which she
pleaded guilty in August. She received an additional sentence of 30 days‟ incarceration.
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In August, execution of both sentences was stayed until January 3, 1990, and on that date
was further stayed to February 6, 1990.
Letner moved for a mistrial on the basis that he had been deprived of the
opportunity to cross-examine Mayberry concerning these pending criminal matters and
any influence they might have had upon her guilt phase testimony. The trial court
observed it was impossible at that point in the trial to remedy the failure to disclose these
matters, and therefore the court would revisit the issue after conclusion of the trial. Both
defendants in their subsequent motions for new trial raised the prosecution‟s failure to
disclose these matters. The trial court denied the motions, finding that Mayberry‟s
testimony “was not terribly material” to establishing defendants‟ guilt, and further that
the undisclosed matters were “of extremely questionable character as to impeachment
value.” On appeal, defendants contend the prosecutor‟s failure to disclose these matters
to the defense violated their federal constitutional rights under Brady v. Maryland (1963)
373 U.S. 83 (Brady) and the parallel state constitutional provisions. Defendants,
however, have failed to establish that their constitutional rights were violated.
“In Brady, the United States Supreme Court held „that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.‟ [Citation.] The high court has since held that the duty to
disclose such evidence exists even though there has been no request by the accused
[citation], that the duty encompasses impeachment evidence as well as exculpatory
evidence [citation], and that the duty extends even to evidence known only to police
investigators and not to the prosecutor [citation]. Such evidence is material „ “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” ‟ [Citation.] In order to comply with Brady,
therefore, „the individual prosecutor has a duty to learn of any favorable evidence known
83
to the others acting on the government‟s behalf in the case, including the police.‟
[Citations.]” (People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar).)
“ „[T]he term “Brady violation” is sometimes used to refer to any breach of the
broad obligation to disclose exculpatory evidence — that is, to any suppression of so-
called “Brady material” — although, strictly speaking, there is never a real “Brady
violation” unless the nondisclosure was so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict. There are three
components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.‟ [Citation.] Prejudice, in this context, focuses on „the materiality of the
evidence to the issue of guilt and innocence.‟ [Citations.] Materiality, in turn, requires
more than a showing that the suppressed evidence would have been admissible [citation],
that the absence of the suppressed evidence made conviction „more likely‟ [citation], or
that using the suppressed evidence to discredit a witness‟s testimony „might have
changed the outcome of the trial‟ [citation]. A defendant instead „must show a
“reasonable probability of a different result.” ‟ [Citation.]” (Salazar, supra, 35 Cal.4th at
pp. 1042-1043.) We independently review the question whether a Brady violation has
occurred, but give great weight to any trial court findings of fact that are supported by
substantial evidence. (Salazar, at p. 1042.)
Defendants have satisfied the first two components of the Brady analysis. As the
prosecutor herself admitted at the hearing on the new trial motions, there was an
obligation to disclose to the defense the information concerning the pending matters,
even if she and the investigators were unaware of them or inadvertently failed to disclose
them. And the circumstance that a prosecution witness faced pending criminal matters,
some of which were being prosecuted by the same district attorney‟s office prosecuting
the defendant, constitutes evidence “favorable” to the defense, in that a jury could view
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this circumstance as negatively impacting the credibility of testimony by the witness that
was helpful to the prosecution. Like the trial court, we are not convinced, however, that
the evidence was material.
The parties dispute the significance of Mayberry‟s testimony in view of the total
sum of the evidence presented at the guilt phase of the trial. Defendants assert her
testimony was very significant, whereas the Attorney General urges that the testimony
primarily was cumulative of other evidence before the jury. A correct assessment lies
somewhere between these two extremes. As the trial court observed, Mayberry‟s
testimony provided some evidence establishing motive — that defendants were ready to
leave Visalia because of their unemployment, and because of the fights that took place
between Tobin and Mayberry on the day and night preceding the murder. Mayberry also
provided evidence concerning defendants‟ relationship with each other, including, as
mentioned above, the circumstance that Letner encouraged Tobin to continue striking her
during the fight at the apartment, and testimony establishing that defendants lied when
they told Officer Wightman where they were going when they were stopped in the
victim‟s car. Although Mayberry‟s testimony had some significance at the trial, its
importance is not comparable to those circumstances in which we have acknowledged
that the suppression of possible impeachment evidence would be material under Brady. “
„In general, impeachment evidence has been found to be material where the witness at
issue “supplied the only evidence linking the defendant(s) to the crime” [citations], or
where the likely impact on the witness‟s credibility would have undermined a critical
element of the prosecution‟s case [citation].‟ ” (Salazar, supra, 35 Cal.4th at p. 1050.)
Neither of these circumstances applies to Mayberry‟s testimony.
Further, even were we to conclude that Mayberry‟s testimony concerned a critical
element of the prosecution‟s case, we would agree with the trial court‟s assessment that
the undisclosed information concerning her pending criminal matters would not have
undermined her credibility to any significant degree. The inference defendants would
85
draw from the circumstances that (1) Mayberry‟s felony charge was reduced to a
misdemeanor, (2) the execution of her sentences was postponed until after her testimony,
and (3) she was not arrested on the misdemeanor warrant from the neighboring county, is
that in order to receive those (and possibly other) benefits from the prosecution, she
chose to testify untruthfully.
Initially, we observe that none of the charges against Mayberry was particularly
serious, and therefore the jury might not have found compelling the theory that Mayberry
perjured herself at defendants‟ capital trial in order to obtain some relatively minor
benefit in her own pending matters. In addition, the possibility that the charges would
have had material impeachment value is contradicted by Mayberry‟s declaration
submitted with the opposition to defendants‟ motions for new trials, in which she stated
she did not speak with the prosecutor about the pending charges, did not expect or receive
any benefits for testifying, did not alter her testimony as a result of the pending matters,
and had requested (and the court had ordered) that her jail sentence be suspended so she
would not be in the jail while defendants also were incarcerated there. We presume that
had she been questioned before the jury concerning these matters, her testimony would
have been to the same effect.
More importantly, the notion that Mayberry altered her testimony in return for
favorable treatment in her criminal matters is belied by the circumstance that her
preliminary hearing testimony, given several months prior to the theft and bad check
charges filed in Tulare County, was consistent with her trial testimony. Indeed, had
defendants attempted to impeach Mayberry by introducing her then-pending matters, the
prosecution could have presented her preliminary hearing testimony (and possibly other
statements she gave to the police) as a prior consistent statement made before any motive
to lie arose, pursuant to sections 1236 and 791, subdivision (b) of the Evidence Code — a
strategy that actually might have bolstered, rather than impeached, her credibility.
Finally, the jury already had before it evidence that might have negatively impacted
86
Mayberry‟s credibility: as the trial court observed, her personal bias against Letner was
obvious, and defendants presented evidence demonstrating that the account of her fight
with Tobin that she provided to the responding police officer was somewhat inconsistent
with her trial testimony.
Defendants, in a summary fashion, urge for the first time on appeal that
Mayberry‟s convictions for petty theft and writing bad checks directly bear upon her
credibility as a witness, because those offenses were “traditional examples of crim[i]n[a]
falsi[]” (the crime of falsifying). At the time of defendants‟ trial, we had not yet decided
in People v. Wheeler (1992) 4 Cal.4th 284 that Proposition 8‟s truth-in-evidence
provision eliminated the proscription against the use of misdemeanor offenses as
impeachment evidence. (Wheeler at p. 295.) Assuming, nonetheless, that this holding
had applied in defendants‟ trial, we also take note of our conclusion in Wheeler that
misdemeanor convictions are inadmissible under the hearsay rule and furthermore, with
reference to the underlying facts of misdemeanor offenses, that trial courts retain the
authority to exclude such evidence under section 352 of the Evidence Code if
presentation of those facts would create undue prejudice, delay, or confusion,
substantially outweighing their probative value. (Wheeler at pp. 296-300.) In the present
case, because defendants failed to raise this issue in the trial court, that court was not
called upon to exercise its discretion to determine whether any part of such evidence
should have been admitted, and the record fails to provide us with any information
concerning the facts underlying Mayberry‟s offenses. Therefore, defendants‟ bare
allegation that the offenses themselves would have had value in impeaching Mayberry‟s
testimony is unsupported. In addition, as we observed in Wheeler, “a misdemeanor — or
any other conduct not amounting to a felony — is a less forceful indicator of immoral
character or dishonesty than is a felony.” (Id. at p. 296.)
In sum, defendants have failed to demonstrate that there is a reasonable probability
that had the prosecutor disclosed to defendants the then-pending criminal matters facing
87
Mayberry before the prosecution called her as a witness, the jury would have reached a
result more favorable to defendants. Accordingly, defendants have not established that
their constitutional rights were violated.
c. Guilt Phase Closing Argument (Letner, Tobin)
Defendants contend the prosecutor committed several instances of misconduct
during her guilt phase argument to the jury. Neither defendant objected to any of the
alleged misconduct, nor would such objections have been futile or ineffective.
Accordingly, defendants have forfeited their claims of misconduct. In any event, no
prejudicial misconduct occurred.
We have rejected defendants‟ claims that the prosecutor‟s mention of the term
“instant death” was prejudicial misconduct, ante, in part II.B.3.a. Defendants also
contend the prosecutor “slandered” them by arguing, in responding to defense counsel‟s
attacks upon the credibility of Earl Bothwell‟s testimony, that although Bothwell was an
admitted criminal, the jury could not expect that witnesses associated with defendants
would be upstanding citizens, because defendants could be expected “to be hanging
around with other criminals.” Defendants contend there was no evidence presented at the
guilt phase to establish they were criminals. To the contrary, the evidence demonstrated
that Tobin assaulted Jeanette Mayberry, and that Letner possessed stolen property.
Moreover, of course, evidence was presented establishing that defendants murdered
Pontbriant and stole her car, and then fled to Iowa to escape prosecution. The
prosecutor‟s argument was a permissible comment upon the evidence.
Similarly without merit are defendants‟ contentions that the prosecutor improperly
“embellished the evidence” by arguing that Walter Gilliland‟s testimony was “essentially
backed up by other evidence,” and that the blood found in the bedroom and on the rag
from Pontbriant‟s car was fresh. These statements, too, were permissible arguments
putting forth a reasonable view of the evidence. “Prosecutors have wide latitude to
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discuss and draw inferences from the evidence at trial. [Citation.] Whether the
inferences the prosecutor draws are reasonable is for the jury to decide.” (People v.
Dennis (1998) 17 Cal.4th 468, 522.)
Tobin also contends the prosecutor improperly “dwelled” upon the evidence
concerning his fight with Mayberry, because that evidence assertedly was irrelevant in
the determination whether Tobin was involved in Pontbriant‟s murder, but instead was
designed to “portray appellant as a violent man who beats up on women.” This
contention is without merit. The prosecutor commented upon the fight in the context of
attacking the credibility of Tobin‟s testimony that he and Letner had been planning for
several days prior to the murder to move to Iowa but, for largely unexplained reasons, did
not decide to leave until the night of the murder. The prosecutor‟s argument was
permissible and in no way asserted that the fight with Mayberry established Tobin‟s
propensity for committing violence against women.
4. Asserted Instructional Error
a. Aiding and Abetting (Letner, Tobin)
Defendants raise three related challenges to the instructions given by the trial court
to the jury concerning the criminal liability of an aider and abettor: (1) the instructions
did not inform the jury that in order to find the special circumstance allegations true as to
a defendant whom it found to be an aider and abettor, the jury must find that the
particular defendant intended Pontbriant would be killed; (2) the instruction regarding the
“natural and probable consequences” theory of aider-and-abettor liability failed to
identify the applicable “target offenses”; and (3) the natural-and-probable-consequences
theory of aider-and-abettor liability is unconstitutional.23 Although we agree that, with
23
Because of the error, mentioned post, in part II.B.5, in failing to transcribe all of
the trial proceedings — including the conference concerning the guilt phase jury
instructions — we shall assume defendants preserved all of the instructional challenges
(footnote continued on next page)
89
regard to the first two challenges, the instructions given were ambiguous, we conclude
there was no reasonable likelihood the jury misunderstood or misapplied them. We
already have rejected defendants‟ third challenge, and do so again here.
With regard to the special circumstance allegations, the trial court instructed the
jury with a modified version of CALJIC No. 8.80, as follows: “If you find that a
defendant in this case is guilty of murder in the first degree, you must then determine if
one or more of the following special circumstances are true or not true: [¶] Whether the
murder was done during the commission or attempted commission of robbery, or
burglary, or rape. [¶] The People have the burden of proving the truth of the special
circumstance. [¶] If you have a reasonable doubt as to whether a special circumstance is
true, you must find it to be not true. [¶] If you find beyond a reasonable doubt that
defendant was either the actual killer, or an aider and abettor, but you are unable to
decide which, then you must also find beyond a reasonable doubt that the defendant
intended to either kill a human being, or to aid another in the killing of a human being in
order to find the special circumstance to be true. [¶] On the other hand, if you find
beyond a reasonable doubt that the defendant was the actual killer, you need not find that
the defendant intended to kill a human being in order to find the special circumstance to
be true.”24 (Italics added.) The flaw in this instruction, as defendants observe, is that it
(footnote continued from previous page)
they raise on appeal. To the extent that defendants contend these asserted instructional
errors violated their substantial rights, we also review their claims pursuant to section
1259, even if these claims were forfeited.
24
The trial court earlier gave an instruction concerning aiding-and-abetting liability
for the substantive charges that included similar language highlighting the requirement
that to be liable, pursuant to the natural-and-probable-consequences theory, an aider and
abettor need not share the same intent as the perpetrator of the crime, but “[t]his rule of
law is not applicable to the special circumstances charged. [¶] In other words, if you
find that a defendant was an aider and abettor or the actual killer, but you‟re unable to
decide which, then you must also find beyond a reasonable doubt that defendant intended
(footnote continued on next page)
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failed to instruct the jury explicitly that, under then-existing law, an aider and abettor
must have had the intent that the victim be killed in order for the special circumstance
allegation to be true. (Anderson, supra, 43 Cal.3d at pp. 1138-1139.) The jury was told
that if it determined one of the defendants was the actual killer, intent to kill was not
required, and that if it could not decide whether one of the defendants was the actual
killer or an aider and abettor, it must find intent to kill in order to make a true finding.
The jury, however, was not informed what was required in the event the jury determined
that a particular defendant was an aider and abettor.25 The omission of this third
(footnote continued from previous page)
either to kill a human being, or to aid another in the killing of a human being in order to
find the special circumstance to be true.”
25
The standard unmodified CALJIC instruction applicable to murders that were
committed prior to June 6, 1990, CALJIC No. 8.80, is as follows:
“If you find [the] [a] defendant in this case guilty of murder of the first degree,
you must then determine if [one or more of] the following special circumstance[s]: [is]
[are] true or not true: ____, ____, _____, [ ____ and ____].
“The People have the burden of proving the truth of a special circumstance. If you
have a reasonable doubt as to whether a special circumstance is true, you must find it to
be not true.
“[If you find beyond a reasonable doubt that the defendant was [a co-conspirator]
[or] [an aider or abettor] [either [the actual killer] [a co-conspirator] or an aider or abettor,
but you are unable to decide which], then you must also find beyond a reasonable doubt
that the defendant with intent to kill [participated as a co-conspirator with] [or] [aided
[and abetted]] an actor in commission of the murder in the first degree, in order to find
the special circumstance to be true.] [On the other hand, if you find beyond a reasonable
doubt that the defendant was the actual killer, you need not find that the defendant
intended to kill a human being in order to find the special circumstance to be true.]”
The deficiency in the pattern instruction is that there should be an “[, or]” in the
third paragraph between “[an aider or abettor]” and “[either [the actual killer] [a co-
conspirator] or an aider or abettor, but you are unable to decide which],” so that in a case
such as the present one, the trial court would instruct the jury, “If you find beyond a
reasonable doubt that the defendant was an aider or abettor, or either the actual killer or
an aider or abettor, but you are unable to decide which, then you must also find beyond a
reasonable doubt that the defendant with intent to kill aided and abetted an actor in the
(footnote continued on next page)
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alternative made the instruction ambiguous. Accordingly, we disagree with the Court of
Appeal‟s conclusion in People v. Snead (1993) 20 Cal.App.4th 1088, 1097, that the same
instruction made it “unmistakable” that an aider and abettor must have the intent to kill,
because the instruction compares the requirement applicable when the jury cannot decide
between actual killer and aider and abettor, with — “on the other hand” — the situation
when the jury does decide upon an actual killer. In this circumstance, there are three
“hands,” not merely two, and the instruction left the jury to surmise what intent an aider
and abettor was required to have. We disapprove Snead to the extent it is inconsistent
with this opinion.
“With regard to criminal trials, „not every ambiguity, inconsistency, or deficiency
in a jury instruction rises to the level of a due process violation. The question is
“ „whether the ailing instruction . . . so infected the entire trial that the resulting
conviction violates due process.‟ ” [Citation.] “ „[A] single instruction to a jury may not
be judged in artificial isolation, but must be viewed in the context of the overall
charge.‟ ” [Citation.] If the charge as a whole is ambiguous, the question is whether
there is a “ „reasonable likelihood that the jury has applied the challenged instruction in a
way‟ that violates the Constitution.” ‟ [Citation.]” (People v. Huggins (2006) 38 Cal.4th
175, 192; see also Mayfield, supra, 14 Cal.4th at p. 777 [“For ambiguous instructions, the
test is whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.”].) We conclude, based upon our review of the record, that
there is no reasonable likelihood the jury misunderstood or misapplied this instruction.
(footnote continued from previous page)
commission of the murder in the first degree, in order to find the special circumstance to
be true.” We observe that the language of the corresponding CALCRIM instruction, No.
701, is significantly different, and makes clear that intent to kill must be proved when the
jury finds the defendant was an aider and abettor, as well as when the jury cannot decide
whether the defendant is the actual killer or an aider and abettor.
92
Although we conclude the instruction‟s meaning concerning the intent of an aider and
abettor was not “unmistakable,” certainly the jury could draw from the instruction as a
whole the inference that an aider and abettor was required to have an intent to kill. In
addition, the prosecutor presented a correct and complete statement of the law in her
arguments following the trial court‟s instructions. Indeed, the prosecutor discussed a
hypothetical bank robbery involving a robber and a getaway driver, properly contrasting
the special-circumstance intent-to-kill requirement for each participant (essentially, that
no intent to kill was required as to the robber who shoots someone in the bank, but that
intent to kill was required with respect to the driver who merely is waiting in the car
when the shooting occurs).
Moreover, there is no reasonable likelihood the jury was confused in the present
case, because it is unlikely the jury felt compelled to resolve any possible ambiguity with
regard to the intent required for an aider and abettor. The best evidence supporting a
finding beyond a reasonable doubt that one of the defendants was the actual killer (and,
therefore, the other merely was an aider and abettor) was Tobin‟s testimony that he was
uninvolved in robbing, attempting to rape, and murdering Pontbriant, thus pointing to
Letner as the actual killer. The jury obviously rejected this testimony. There was scant
remaining evidence that could have sufficiently proved that one particular defendant of
the two was the actual killer. Indeed, the prosecutor did not identify one defendant as
having killed Pontbriant, but instead argued exclusively that the evidence demonstrated
that both defendants had the intent to kill Pontbriant. The prosecutor never argued that
the jury, pursuant to that part of the instruction addressing an actual killer, need not find
intent to kill as to one of the two defendants. The jury, therefore, received sufficient
instruction concerning the law applicable to the evidence: “If you find beyond a
reasonable doubt that defendant was either the actual killer, or an aider and abettor, but
you are unable to decide which, then you must also find beyond a reasonable doubt that
the defendant intended to either kill a human being, or to aid another in the killing of a
93
human being in order to find the special circumstance to be true.” Accordingly, despite
the ambiguity in the instruction, there is no reasonable likelihood that the jury found one
defendant was the actual killer, and then based its special circumstance findings as to the
other defendant upon an erroneous notion that an aider and abettor need not possess the
intent to kill.
With regard to the “natural-and-probable-consequences” instruction concerning an
aider and abettor‟s liability for the substantive offenses, we similarly conclude the
instructions given by the trial court in the present case were ambiguous, but there is no
reasonable likelihood the jury misunderstood or misapplied the law. The trial court
instructed the jury: “One who aids and abets is not only guilty of the particular crime that
to his knowledge his confederates are contemplating, but he is also liable for the natural
and probable consequences of any criminal act that he knowingly and intentionally aided
and abetted. [¶] You must determine whether the defendant is guilty of the crimes
originally contemplated and if so, whether the crimes charged in counts one, two, three,
four and five, and the lesser included offenses were natural and probable consequences of
such originally contemplated crimes.”26 The trial court never identified which offenses
might have been “originally contemplated.” As defendants observe, the second sentence
of this instruction could be interpreted as meaning that the “crimes originally
contemplated” (often referred to as the “target offenses”) were not the charged crimes,
but were some other undefined crimes that might have given rise to the charged crimes.
It appears the instruction may have been intended to convey the notion that the jury could
find that one of the charged crimes — for example, murder — was the natural and
probable consequence of another of the charged crimes — for example, robbery — and
26
Defendants incorrectly state in their opening briefs that the trial court‟s oral
instruction varied from the written instruction. The trial court, in fact, realized it had
made an error and reread the entire instruction to the jury.
94
therefore, if, for example, one of the defendants intended only to rob Pontbriant, that
defendant still could be liable for her murder.27
The prosecutor in the present case, contrary to defendants‟ assertions, did not rely
upon the natural-and-probable-consequences doctrine; rather, she repeatedly argued the
evidence established that both defendants intended to commit all of the charged crimes,
and both intended to kill Pontbriant. The prosecutor never argued that one defendant
intended only to commit one particular crime, but that the other defendant committed a
different crime, which was the natural and probable consequence of the commission of
the first, thereby making both defendants guilty of the second offense. Accordingly, an
instruction concerning the natural-and-probable-consequences doctrine actually was not
required. (People v. Prettyman (1996) 14 Cal.4th 248, 270 (Prettyman).) Nonetheless,
as we also observed in Prettyman, “once the trial court . . . chose to instruct the jury on
the „natural and probable consequences‟ rule, it had a duty to issue instructions
identifying and describing each potential target offense supported by the evidence.”
(Ibid.) Accordingly, we conclude that giving the ambiguous instruction was error. (Cf.
CALJIC No. 3.02 and CALCRIM Nos. 402, 403 [directing the trial court to define the
target offenses].)
For many of the same reasons as in Prettyman, however, we conclude the error
was harmless, because there is no reasonable likelihood the jury misunderstood or
misapplied the law. To point out, as defendants do, that the ambiguous instruction could
have led the jury to “indulge in unguided speculation” (Prettyman, supra, 14 Cal.4th at
p. 267) concerning the unspecified target offenses, does not establish a reasonable
27
We observe that the current instructions concerning this subject, CALCRIM
Nos. 402 and 403 and CALJIC No. 3.02, require that the trial court explicitly inform the
jury which originally contemplated crime or crimes might form the basis of liability for a
particular charged offense.
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likelihood that the jury did so. As mentioned above, the prosecutor did not rely upon the
natural-and-probable-consequences doctrine, but argued that both defendants intended to
commit all of the charged offenses. (See id. at p. 273 [“[b]ecause the parties made no
reference to the „natural and probable consequences‟ doctrine in their arguments to the
jury, it is highly unlikely that the jury relied upon that rule when it convicted
defendant”].) There also is little doubt that the jury determined that each defendant
intended to kill Pontbriant, because, as the prosecution conceded, there was no clear
evidence establishing which defendant was the actual killer, and, as discussed above, the
trial court‟s instructions required in such circumstances that in order to sustain the special
circumstance allegations, the jury find each defendant intended to kill Pontbriant. Thus,
the jury‟s true findings on the special circumstance allegations essentially negate the
possibility that the jury relied upon the natural-and-probable-consequences doctrine in
convicting defendants of murder, which reliance — absent such findings — otherwise
would have been the most likely application of that doctrine under the circumstances of
the present case. In sum, there is no reasonable likelihood the jury misunderstood or
misapplied the instruction.
Finally, defendants contend the application of the natural-and-probable-
consequences doctrine in a capital case is a violation of due process because it permits
the jury to convict the defendant of the substantive charges and special circumstance
allegations “without a need to decide if he had the otherwise requisite intent,” and would
authorize “a death sentence based on a vicarious negligence theory of liability,” in
violation of the Eighth Amendment. We have rejected these contentions, and decline to
revisit our prior decisions. (Richardson, supra, 43 Cal.4th at p. 1021; see also Coffman,
supra, 34 Cal.4th at p. 108; People v. Garrison (1989) 47 Cal.3d 746, 777-778.)
96
b. Accomplice Testimony (Letner)
Letner contends the trial court erred under state law and violated his state and
federal constitutional rights by failing to instruct on its own motion concerning
accomplice testimony to guide the jury in evaluating Tobin‟s guilt phase testimony.
Primarily, Letner urges the trial court should have instructed the jury to view accomplice
testimony with distrust, and examine it with care and caution in light of all the evidence
presented in the case.28 Although the trial court was required to give accomplice
instructions in the present case to the extent that Tobin‟s testimony tended to incriminate
Letner (Coffman, supra, 34 Cal.4th at pp. 104-105), the error in failing to do so was
harmless under any standard. The jury was aware that Tobin “had every motivation to
shift blame” to Letner (People v. Box (2000) 23 Cal.4th 1153, 1209), and in fact the jury
evidently rejected the part of Tobin‟s testimony harmful to Letner (to the effect that when
Tobin left, Pontbriant was unharmed, and that subsequently Letner appeared at the
Murray Street apartment with the victim‟s car) without having been instructed to view
Tobin‟s version of events with distrust. Moreover, there is no dispute that Letner was at
Pontbriant‟s house on the night of the murder, and that he was detained while driving her
car at midnight that night. This evidence provides sufficient corroboration of Tobin‟s
testimony that Letner was present at the scene of the murder on the night in question.
28
Letner‟s primary focus is upon the trial court‟s failure to instruct pursuant to
CALJIC No. 3.18: “You should view the testimony of an accomplice with distrust. This
does not mean that you may arbitrarily disregard that testimony. You should give that
testimony the weight you think it deserves after examining it with care and caution and in
the light of all the evidence in the case.” Letner also contends the court was required to
give related accomplice instructions — CALJIC Nos. 3.10 (defining an accomplice), 3.11
(requiring that accomplice testimony be corroborated), 3.12 (describing the sufficiency of
corroborating evidence), and 3.16 (instructing that Tobin was an accomplice as a matter
of law) — to provide context for the instruction requiring that Tobin‟s testimony be
viewed with caution.
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Letner contends in his reply brief that the corroborating evidence was inadequate
because “the facts are entirely consistent with appellant‟s status as a bystander during the
homicide.” The corroboration required of accomplice testimony, however, need only
connect the defendant to the crime sufficiently that we may conclude the jury reasonably
could have been satisfied that the accomplice was telling the truth. Moreover, the
corroborating evidence may be circumstantial, of little weight by itself, and related
merely to one part of the accomplice‟s testimony. (People v. Miranda (1987) 44 Cal.3d
57, 100.) Tobin‟s testimony placing Letner at the scene of the murder on the night in
question was sufficiently corroborated; indeed, there was no dispute that Letner was
present. The jury obviously rejected Tobin‟s testimony to the extent this testimony
implicitly placed all blame for the murder upon Letner by relating that Tobin left Letner
and Pontbriant alive and well and went home. Therefore we conclude that, with regard to
that part of Tobin‟s testimony, the absence of accomplice instructions was harmless; the
jury apparently found it incredible even in the absence of the accomplice instructions, and
there is no need for us to evaluate whether there was adequate corroboration for the
testimony in question.
In sum, there is no likelihood that the absence of instructions directing the jury to
view with distrust the portion of Tobin‟s testimony that incriminated Letner, and
requiring it to find corroboration of Tobin‟s testimony, could have affected the jury‟s
decision concerning Letner‟s guilt.
c. Voluntary Intoxication (Letner, Tobin)
Defendants contend the trial court‟s instructions concerning the significance of
voluntary intoxication were inadequate because they failed to explain to the jury how that
condition could affect the mental state of an aider and abettor. Defendants rely upon our
decision in People v. Mendoza (1998) 18 Cal.4th 1114 (Mendoza), in which we
concluded that (1) evidence of voluntary intoxication is relevant to the extent it
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establishes whether an aider and abettor knew of the direct perpetrator‟s criminal purpose
and intended to facilitate achieving that goal, even in cases in which the perpetrator
intended to commit a “general intent” crime (id. at pp. 1130-1133); and (2) any
instructions to the jury concerning voluntary intoxication should inform the jury of the
possible effect of voluntary intoxication upon the aider and abettor‟s mental state (id. at
p. 1134 [“a trial court has no sua sponte duty to instruct on the relevance of intoxication,
but if it does instruct, as the court here did, it has to do so correctly”]). In the present
case, the trial court instructed the jury that it could consider evidence of defendants‟
voluntary intoxication in deciding beyond a reasonable doubt whether they (1) possessed
the required mental states for the murder charges and the lesser included homicide
offenses, (2) formed the specific intent to commit robbery, burglary, and rape that is
required in order to convict them of those offenses, and (3) with regard to the special
circumstance allegations, formed the specific intent to commit robbery, burglary, and
rape, and the specific intent to kill. The trial court separately instructed the jury
concerning the elements required in order to find each defendant guilty as an aider and
abettor of the crimes. Thus, the trial court‟s instructions in the present case, which
predated Mendoza, did not explicitly inform the jury of the points we subsequently noted
in that case.
Assuming for the sake of argument that the trial court‟s instructions on this subject
were inadequate, any error was harmless. (See Mendoza, supra, 18 Cal.4th at p. 1134
[“If the court gives any instruction at all on the relevance of intoxication [citation], it
might simply instruct that the jury may consider intoxication in determining whether a
defendant tried as an aider and abettor had the required mental state.”].) In these
circumstances, we “review the instructions as a whole to determine whether it is
„reasonably likely the jury misconstrued the instructions as precluding it from
considering‟ the intoxication evidence in deciding aiding and abetting liability.
[Citation.] Any error would have the effect of excluding defense evidence and is thus
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subject to the usual standard for state law error: „the court must reverse only if it also
finds a reasonable probability the error affected the verdict adversely to defendant.‟
[Citation.]” (Id. at pp. 1134-1135.) Although the voluntary intoxication instructions did
not specifically mention aiding and abetting, they did not preclude the jury‟s use of
evidence of intoxication in evaluating whether defendants aided and abetted, that is,
whether, pursuant to the trial court‟s other instructions, one defendant knew of the other
defendant‟s criminal purpose and intentionally aided the commission of the crime. Nor
did the prosecutor argue that the jury could not consider voluntary intoxication in
determining whether a defendant who was an aider and abettor of the crimes formed the
mental state required for aiding and abetting. There is nothing in the record to indicate
the jury would not have understood that the mental states set forth in the voluntary
intoxication instructions could apply both to the mental states required of a direct
perpetrator and to those required of an aider and abettor. Moreover, neither defendant
actually argued a voluntary intoxication defense to the jury. For these reasons, any error
in the instructions did not preclude the jury‟s consideration of defense evidence, nor is it
reasonably probable that different instructions would have resulted in a verdict more
favorable to defendants.
Defendants also challenge the use of the singular “defendant” in this and other
instructions, because assertedly this “erroneously encouraged the jury to treat them as
fungible entities.” The trial court, however, specifically instructed the jury that the word
“defendant” was used in the instructions in order to emphasize that “each of these
defendants . . . is entitled to your individual consideration, and that is why [the
instructions] apply to each of them individually.” The trial court also separately
reminded the jury that it was required to weigh the evidence for and against each
defendant individually and to reach an independent verdict as to each of them. There is
no reasonable likelihood that the jury misunderstood or misapplied the instructions
because of the use of the word “defendant” in the singular.
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d. Adoptive Admissions (Tobin)
Tobin contends the trial court was required, on its own motion, to instruct the jury
pursuant to CALJIC No. 2.71.5 concerning adoptive admissions, for the purpose of
evaluating Officer Wightman‟s testimony regarding Letner‟s statement as to where
Letner was taking Tobin in Pontbriant‟s car.29 As discussed ante, in part II.B.1.a,
Letner‟s statement was not hearsay, and it was not offered to prove that Tobin believed
and admitted that Letner‟s statement was true. Accordingly, instructing the jury pursuant
to CALJIC No. 2.71.5 would have been inappropriate and confusing.30
e. Possession of Recently Stolen Property (Letner, Tobin)
Defendants challenge the trial court‟s instruction to the jury, pursuant to CALJIC
No. 2.15, that it could infer from defendants‟ possession of recently stolen property that
they committed a robbery, but that such an inference was not sufficient to establish
defendants‟ guilt of that offense in the absence of corroborating evidence of guilt.
Defendants contend the instruction violated their constitutional rights because it
29
This standard CALJIC instruction presently reads: “If you should find from the
evidence that there was an occasion when [a] [the] defendant (1) under conditions which
reasonably afforded [him] [her] an opportunity to reply; (2) [failed to make a denial] [or]
[made false, evasive or contradictory statements,] in the face of an accusation, expressed
directly to [him] [her] or in [his] [her] presence, charging [him] [her] with the crime for
which this defendant now is on trial or tending to connect [him] [her] with its
commission; and (3) that [he] [she] heard the accusation and understood its nature, then
the circumstance of [his] [her] [silence] [and] [conduct] on that occasion may be
considered against [him] [her] as indicating an admission that the accusation was true.
Evidence of an accusatory statement is not received for the purpose of proving its truth,
but only as it supplies meaning to the [silence] [and] [conduct] of the accused in the face
of it. Unless you find that [a] [the] defendant‟s [silence] [and] [conduct] at the time
indicated an admission that the accusatory statement was true, you must entirely
disregard the statement.” (CALJIC No. 2.71.5; see also CALCRIM No. 357.)
30
We also concluded ante, in part II.B.1.a, that the absence of a limiting instruction
concerning Letner‟s statement was not prejudicial, because the jury could find that Tobin,
himself, told a similar lie to Officer Wightman.
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constituted an improper pinpoint instruction that was beneficial to the prosecution and
shifted the burden of proof to defendants, and promoted an irrational inference because
the possession of stolen property, by itself, does not establish whether the property was
obtained by a robbery or merely by a theft. We previously have rejected similar claims,
and do so again for the same reasons expressed in our prior decisions. The instruction
did not shift the burden of proof and was not an improper pinpoint instruction for the
prosecution‟s benefit — the instruction benefited defendants in that it notified the jury
that it could not convict them of robbery based solely upon the evidence establishing their
possession of Pontbriant‟s property. The instruction did not invite the irrational inference
that the jury could find defendants had robbed Pontbriant without finding that they used
force or fear to obtain her property, because the jury separately was instructed regarding
the elements of both robbery and theft, and there was no suggestion in the challenged
instruction that the jury need not find that all of the elements of robbery (or theft) had
been proved beyond a reasonable doubt. (People v. Holt (1997) 15 Cal.4th 619, 677; see
also People v. Parson (2008) 44 Cal.4th 332, 355-356; People v. Prieto (2003) 30 Cal.4th
226, 248 (Prieto); People v. Smithey (1999) 20 Cal.4th 936, 975-978 (Smithey).)
f. Consciousness of Guilt (Letner, Tobin)
Defendants contend the instructions informing the jury that evidence of
defendants‟ consciousness of guilt may give rise to an inference of their guilt (but that it
is insufficient by itself to prove guilt) violated their constitutional rights, because the
instructions were impermissibly overbroad and argumentative.31 Defendants assert the
instructions failed to state that evidence of consciousness of guilt must be considered as
to each defendant individually. As we previously mentioned, however, the trial court
31
The trial court instructed the jury pursuant to CALJIC Nos. 2.03 (willfully false
statements) and 2.06 (attempt to suppress evidence).
102
gave instructions emphasizing that each defendant was entitled to the jury‟s separate
consideration of the evidence against him. Defendants also urge that the instruction
concerning false statements was improper because the statements at issue did not
“concern” or “relate” to Pontbriant‟s murder, and therefore it was irrational to draw an
inference of defendants‟ guilt of the crimes based upon their unrelated lies. The untrue
statements made by defendants to Officer Wightman and to Denise Novotny regarding
defendants‟ travels “concerned” the crimes committed against Pontbriant in the sense
they tended to establish that defendants were attempting to conceal those crimes and to
flee before they were apprehended. This inference drawn from the evidence was not
irrational.
We have rejected defendants‟ remaining contentions in numerous prior cases, and
perceive no reason to reconsider those decisions. The consciousness-of-guilt instructions
did not improperly permit the jury to find that defendants possessed a specific mental
state, nor did these instructions by themselves allow the jury to find defendants guilty of
all of the charged offenses. The instructions were not impermissibly argumentative.
(Rundle, supra, 43 Cal.4th at pp. 152-154.)
g. Other Crimes as Motive for, or to Facilitate, Flight (Letner, Tobin)
The trial court instructed the jury, pursuant to a modified version of CALJIC No.
2.50, that evidence concerning defendants‟ commission of crimes other than those
charged in this case had been admitted for the limited purpose of demonstrating either
motive for flight or facilitation of flight. The jury was not permitted to consider that
evidence for any other purpose, such as defendants‟ predisposition to commit crimes.
Defendants contend the giving of this instruction was constitutional error. Again without
considering the trial court‟s instruction that the case against each defendant was to be
considered separately, defendants initially reiterate the claim we have found meritless —
that the instruction failed to distinguish between them.
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Second, defendants contend that the instruction was erroneous because it failed to
identify precisely which “other-crimes” evidence had been admitted. This contention is
misplaced. We have held that in order to avoid confusion in a case in which evidence of
a defendant‟s criminal activity includes not only convictions admitted to impeach the
defendant‟s own testimony, but also “other-crimes” evidence admitted under section
1101, subdivision (b) of the Evidence Code, the trial court must specify which evidence
is referred to in the CALJIC No. 2.50 instruction given to the jury. (People v. Catlin
(2001) 26 Cal.4th 81, 148; People v. Rollo (1977) 20 Cal.3d 109, 123, fn. 6 [“CALJIC
instructions are properly neutral and objective, but in certain circumstances clarity
requires that they be made to refer specifically to the facts of the case before the court.”].)
There was no possibility of such confusion in the present case, because no criminal
impeachment evidence was offered. Therefore, the trial court‟s instruction remained
“properly neutral and objective” by not referring to particular crimes.
Finally, defendants attack the propriety of giving the instruction at all. Letner
argues in a conclusory fashion that the instruction was not “logical” or “permissible.” To
the contrary, evidence establishing that, for example, Tobin — with Letner‟s
encouragement — assaulted Jeanette Mayberry and vandalized her apartment and car
only the day before Pontbriant was murdered, and that defendants were found driving
Pontbriant‟s car on a highway leading out of town, tended to demonstrate that defendants
had a reason to leave Visalia (that is, the possibility of criminal charges being filed
against them), and that they had robbed and murdered Pontbriant in order to facilitate
their departure. Similarly, a rational juror could find that the circumstance that Letner
was in possession of stolen property, which defendants took with them in the victim‟s
car, was evidence tending to demonstrate they were fleeing town after robbing and
murdering Pontbriant, because they brought this merchandise with them in order to sell it
to pay their travel expenses. Tobin‟s argument — that the other-crimes evidence should
not have been admitted because it was not similar to the charged offenses — is entirely
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off the mark. The requirements we acknowledged in People v. Ewoldt (1994) 7 Cal.4th
380, 402-403 (upon which Tobin relies) concerning the degree of similarity between the
charged offenses and the other crimes evidence required to prove intent, identity, or a
common design or plan, are inapplicable in the present case, because the evidence at
issue was not admitted for any of those purposes. (See People v. Demetrulias (2006) 39
Cal.4th 1, 15 [“the probativeness of other-crimes evidence on the issue of motive does
not necessarily depend on similarities between the charged and uncharged crimes, so long
as the offenses have a direct logical nexus”].)
h. Motive (Letner, Tobin)
Defendants raise two familiar challenges to the constitutionality of the trial court‟s
instruction, pursuant to CALJIC No. 2.51, concerning the significance of motive in the
jury‟s determination of defendants‟ guilt or innocence: that the instruction shifted the
burden of proof to defendants to prove their innocence, and failed to explain clearly that
motive alone is insufficient to establish guilt. We previously have rejected these claims
(Riggs, supra, 44 Cal.4th at p. 314) and discern no reason to revisit their merits.
i. Asserted “Dilution” of Reasonable Doubt Standard (Letner, Tobin)
As with the previous contention, defendants again raise a claim that we repeatedly
have rejected — that several of the trial court‟s instructions unconstitutionally “diluted”
the reasonable doubt standard.32 This claim remains without merit. (Riggs, supra, 44
Cal.4th at p. 315.)
32
Defendants take issue with instruction of the jury pursuant to CALJIC Nos. 1.00,
2.01, 2.02, 2.21.2, 2.22, 2.51, 8.83, and 8.83.1.
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j. Mental State of an Actual Killer Required to Establish Special
Circumstance Allegations (Letner, Tobin)
In defendants‟ final challenge to the guilt phase jury instructions, they contend
that, under the Eighth and Fourteenth Amendments to the federal Constitution and the
United States Supreme Court‟s decisions in Tison v. Arizona (1987) 481 U.S. 137 (Tison)
and Enmund v. Florida (1982) 458 U.S. 782 (Enmund), the trial court was required to
instruct the jury that, to support a true finding regarding the felony-murder special-
circumstance allegations, the evidence at trial must establish beyond a reasonable doubt
that a defendant who was the actual killer of the victim was, at a minimum, a major
participant in the underlying felony and acted with a “reckless indifference to human
life.” In other words, defendants claim that although it was permissible for the trial court
to instruct the jury that it need not find that an actual killer had the intent to kill the
victim, it was error not to further instruct the jury that the jury must, however, find that
the actual killer was a major participant in the underlying felony and acted with reckless
disregard of human life, that is, that he acted with a “culpable mental state” with regard to
the killing.
Defendants assert that we have “never squarely confronted the question.” We held
a decade ago, however, that “[e]vidence that the defendant is the actual killer and guilty
of felony murder . . . establishes „a degree of culpability sufficient under the Eighth
Amendment to permit defendant‟s execution.‟ ” (Smithey, supra, 20 Cal.4th at p. 1016;
see also People v. Hayes (1990) 52 Cal.3d 577, 632; People v. Belmontes (1988) 45
Cal.3d 744, 794 [“The United States Supreme Court has made clear that felony murderers
who personally killed may properly be subject to the death penalty in conformance with
the Eighth Amendment — after proper consideration of aggravating and mitigating
circumstances — even where no intent to kill is shown.”].) More recently, in People v.
Young (2005) 34 Cal.4th 1149, 1204, we rejected the claim that “CALJIC No. 8.80 is
constitutionally defective under the Eighth and Fourteenth Amendments because it
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permits a finding of death eligibility in the absence of a jury finding that the defendant
either intended to kill the victim or, as a major participant in the underlying felony,
exhibited a reckless indifference to human life.” (See also People v. Taylor (2010) 48
Cal.4th 574, 661 [citing Young and Hayes].) To the extent there could be any continuing
doubt concerning this issue, we reiterate that the jury should not be instructed that, in
order to find a felony-murder special-circumstance allegation true, it must find that a
defendant who it determines actually killed the victim was a major participant in the
felony, or possessed any culpable mental state specifically related to the killing of the
victim, including “reckless indifference to human life.”
Defendants‟ assertion to the contrary, in reliance upon the high court‟s decisions
in Tison and Enmund, is misplaced. Those cases concerned the application of the death
penalty to aiders and abettors who were not the actual killers of the victims. (Tison,
supra, 481 U.S. at p. 138 [“The question presented is whether the petitioners‟
participation in the events leading up to and following the murder of four members of a
family makes the sentences of death imposed by the Arizona courts constitutionally
permissible although neither petitioner specifically intended to kill the victims and
neither inflicted the fatal gunshot wounds.”]; Enmund, supra, 458 U.S. at p. 787 [“We
granted Enmund‟s petition for certiorari [citation], presenting the question whether death
is a valid penalty under the Eighth and Fourteenth Amendments for one who neither took
life, attempted to take life, nor intended to take life.”].) The court stated its ultimate
holding in Tison as follows: “[W]e simply hold that major participation in the felony
committed, combined with reckless indifference to human life, is sufficient to satisfy the
Enmund culpability requirement.” (Tison, supra, 481 U.S. at p. 158.) Enmund, in turn,
held as follows: “Enmund did not kill or intend to kill and thus his culpability is plainly
different from that of the robbers who killed; yet the State treated them alike and
attributed to Enmund the culpability of those who killed the Kerseys. This was
impermissible under the Eighth Amendment.” (Enmund, supra, 458 U.S. at p. 798.) The
107
circumstance that the court concluded in Tison that major participation in the underlying
crime coupled with reckless indifference to human life was sufficient culpability for the
death penalty to be imposed upon an aider and abettor does not signify that the high court
concluded — or even implied — such circumstances are necessary in all cases to
establish death eligibility, such as, for example, when the defendant is the actual killer.
As our past decisions have observed, it long has been the law that proof that a defendant
who is guilty of felony murder was the actual killer of the victim — by itself —
establishes the degree of culpability required to impose the death penalty. Tison and
Enmund, which addressed different concerns, do not alter that established principle.
Indeed, those cases, viewed properly, reinforce that rule. (See, e.g., Tison, supra, 481
U.S. at pp. 149-150 [“Enmund explicitly dealt with two distinct subsets of all felony
murders. . . . [1] the minor actor in an armed robbery, not on the scene, who neither
intended to kill nor was found to have had any culpable mental state . . . [and 2] the
felony murderer who actually killed, attempted to kill, or intended to kill.”].)
Defendants‟ reliance upon our decision in People v. Estrada (1995) 11 Cal.4th 568
likewise is misplaced. In that case, we “granted review . . . to resolve a conflict in the
Courts of Appeal over whether a trial court has a sua sponte duty to define the phrase
„reckless indifference to human life‟ when instructing a jury regarding a felony-murder
special-circumstance allegation against a defendant who is not the actual killer.” We
concluded the trial courts have no such duty. (Id. at p. 572.) Our recognition that the
California death penalty law had been amended to satisfy the Tison requirement for
nonkillers (Estrada, at pp. 575-576) did not reflect a view that the death-eligibility
requirements applicable to actual killers had been changed. We had no occasion to —
and did not — address in Estrada the question whether, under Tison, it must be proved
that an actual killer acted with reckless indifference to human life.
Similarly, in relying upon the high court‟s decision in Hopkins v. Reeves (1998)
524 U.S. 88, defendants view that case out of context, extracting from it a rule the court
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did not adopt. In Reeves, the court “consider[ed] whether [Beck v. Alabama (1980) 447
U.S. 625] requires state trial courts to instruct juries on offenses that are not lesser
included offenses of the charged crime under state law.” (Reeves, supra, 524 U.S. at
p. 90.) The United States Supreme Court criticized the Eighth Circuit Court of Appeals,
which had answered that question in the affirmative, for failing to distinguish Beck on the
grounds that in the circumstances at issue in Reeves, the state had not created an
“artificial barrier” to the jury‟s consideration of a noncapital option, and that the trier of
fact never was placed in the position of an “all-or-nothing” choice regarding whether to
convict the defendant (in which case he automatically would be sentenced to death), or to
acquit him of all charges. (Reeves, at pp. 97-98.) The high court also disagreed with the
Eighth Circuit‟s conclusion that Tison and Enmund required that the jury make the
decision concerning whether the culpability requirements set forth in those cases have
been satisfied, and therefore whether lesser included offense instructions establishing
some culpable mental state (other than simply the intent to commit the underlying felony)
were required. The high court stated, “Tison and Enmund do not affect the showing that
a State must make at a defendant‟s trial for felony murder, so long as their requirement is
satisfied at some point thereafter.” (Reeves, at pp. 99-100.) As we have explained above,
Tison and Enmund do not require that there be proof that an actual killer had any culpable
mental state regarding the murder — and the court‟s subsequent decision in Reeves said
nothing that changes that principle. Accordingly, no error resulted in the present case
from the absence of an instruction to the jury that, in order to sustain the special
circumstance allegations as to a defendant it found guilty of felony murder and who was
the actual killer, the jury also must find proof beyond a reasonable doubt that such
defendant was a major participant in the underlying felony and acted with a reckless
indifference to human life.
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5. Sufficiency of the Appellate Record (Letner, Tobin)
Defendants contend their rights under state law and the federal Constitution were
violated by the trial court‟s failure to order transcriptions made of all trial proceedings.
Defendants point out that a total of 62 discussions between the court and counsel were
made “off the record” during the trial, including a conference concerning the guilt-phase
jury instructions. Defendants are correct that the failure to record these discussions
violated section 190.9, subdivision (a)(1), which requires that all conferences and
proceedings in a death penalty case must be conducted “ „on the record with a court
reporter present.‟ We previously have held, however, that such an error is not reversible
per se; instead the defendant must demonstrate prejudice. [Citations.]” (Rundle, supra,
43 Cal.4th at p. 110.) Defendants have not presented a compelling reason to revisit that
holding.
“ „[S]tate law entitles a defendant only to an appellate record “adequate to permit
[him or her] to argue” the points raised in the appeal. [Citation.] Federal constitutional
requirements are similar. The due process and equal protection clauses of the Fourteenth
Amendment require the state to furnish an indigent defendant with a record sufficient to
permit adequate and effective appellate review. [Citations.] Similarly, the Eighth
Amendment requires reversal only where the record is so deficient as to create a
substantial risk the death penalty is being imposed in an arbitrary and capricious manner.
[Citation.] The defendant has the burden of showing the record is inadequate to permit
meaningful appellate review. [Citation.]‟ [Citation.]” (Rundle, supra, 43 Cal.4th at
pp. 110-111.)
Defendants have not established that the failure to transcribe the discussions at
issue has prevented adequate and effective appellate review or created a substantial risk
the judgment was arbitrary and capricious. Moreover, the violation of section 190.9,
subdivision (a)(1), by itself, did not deprive defendants of a “liberty interest” under Hicks
v. Oklahoma (1980) 447 U.S. 343, 346. (Rivera v. Illinois (2009) ___ U.S. ___, ___ [129
110
S.Ct. 1446, 1454] [“The Due Process Clause, our decisions instruct, safeguards not the
meticulous observance of state procedural prescriptions, but „the fundamental elements of
fairness in a criminal trial.‟ ”]; Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21 [“We have
long recognized that a „mere error of state law‟ is not a denial of due process. [Citation.]
If the contrary were true, then „every erroneous decision by a state court on state law
would come [to this Court] as a federal constitutional question.‟ [Citations.]”].)
Accordingly, defendants have not established that their federal constitutional rights were
violated. Nor have they demonstrated they suffered prejudice from violation of the
statute under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, which
specifies that for prejudice to be shown, it must be reasonably probable a result more
favorable to defendants would have been reached in the absence of the error. (See also
Rundle, supra, 43 Cal.4th at p. 111-112 [error in failing to transcribe conferences
concerning jury instructions was harmless].)
C. Penalty Phase Issues
1. Denial of Motions to Sever Defendants’ Penalty Phase Trials (Letner,
Tobin)
Defendants contend the trial court erred by denying their motions to sever the
penalty phases of their trials. They present essentially two reasons why the trial court‟s
decision was erroneous: (1) the joint penalty trials allowed the prosecution to conflate
the evidence against each defendant so that the prosecutor‟s arguments that both
defendants deserved the death penalty deprived them of the constitutionally required
“individualized consideration” of the appropriate penalty; and (2) in the course of the
joint trial, each defendant presented evidence in mitigation that was potentially harmful
to the other defendant, but which would not have been properly admitted as aggravating
evidence had they been tried separately. In a similar vein, Letner also argues that the
greater amount of aggravating evidence that was presented against Tobin had an
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improper “spillover” effect that prejudiced the jury‟s consideration of Letner‟s
punishment.
As we previously have observed, there is an “undisputed statutory preference for a
joint penalty trial following a similar trial of guilt (§ 190.4).” (People v. Roberts (1992) 2
Cal.4th 271, 328 (Roberts).) The trial court must exercise its broad discretion to resolve
motions to sever the penalty phases of jointly tried codefendants (People v. Ervin (2000)
22 Cal.4th 48, 96 (Ervin)) in a manner consistent with “the need for individualized
consideration as a constitutional requirement in imposing the death sentence.” (Lockett v.
Ohio (1978) 438 U.S. 586, 605; Ervin, supra, 22 Cal.4th at pp. 95-96.) We conclude for
the following reasons that the trial court‟s decision in the present case not to sever the
penalty phase of defendants‟ trial was not an abuse of discretion, and did not deprive
defendants of the required individualized consideration of the appropriate penalty to
which each was entitled.
The prosecutor did not improperly argue that the jury need not separately consider
the sentence for each defendant; instead she properly argued that each defendant was
equally culpable in the crimes committed against Pontbriant, and that those crimes
warranted the death penalty for each defendant. To the extent either defendant‟s
evidence might have portrayed the other defendant in a bad light, the prosecutor did not
improperly exploit the defendants‟ respective cases in mitigation. In addition, the trial
court instructed the jury that it must consider separately the evidence concerning each
defendant, must not consider evidence admitted for a limited purpose in favor of or
against one defendant in deciding the penalty for the other defendant, and must reach a
separate verdict as to each defendant. The trial court also specifically set forth in the
instructions exactly which criminal activity of each defendant could be considered in
aggravation, and instructed the jury that it could not consider any other criminal activity
as aggravating evidence, including escape from custody, burglaries unrelated to the case,
and the sale and use of narcotics. The jury is presumed to have followed the trial court‟s
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instructions in the absence of any indication it was unwilling or unable to do so. (People
v. Lewis (2008) 43 Cal.4th 415, 461; People v. Taylor (2001) 26 Cal.4th 1155, 1173-
1174; Ervin, supra, 22 Cal.4th at pp. 95-96.) The record demonstrates the jury did
separately consider each defendant‟s penalty, because after several days of deliberations
it notified the court that it had reached a verdict as to one defendant, but at that time was
unable to reach a verdict as to the other.33 (See Roberts, supra, 2 Cal.4th at p. 328
[concluding that the record and the jury‟s “careful consideration of its penalty verdict”
demonstrated that the defendant received an individualized determination of culpability].)
Moreover, in light of the circumstance that the jury reached a death verdict as to both
defendants, we discern even less of a possibility that the jury improperly assigned
culpability based upon one defendant‟s attempt to mitigate the seriousness of his own
actions by shifting accountability to his codefendant. (See Ervin, supra, 22 Cal.4th at
p. 96 [concluding there was “nothing in the record suggesting the jury assigned undue
culpability to defendant after hearing his codefendants‟ mitigating evidence”]; cf. Foster
v. Commonwealth (Ky. 1991) 827 S.W.2d 670, 683 [concluding, in a case in which the
codefendant did not receive a death verdict, that reversal of the death sentence was
required as a result of the “accumulated errors” of admitting the codefendant‟s mitigation
evidence that was prejudicial to the defendant who did receive a death verdict].) “In the
absence of a showing that the jurors in this joint trial were unable or unwilling to assess
independently the respective culpability of each codefendant, we can find no abuse of
discretion [or violation of defendants‟ constitutional rights] in failing to sever the trial
. . . .” (Taylor, supra, 26 Cal.4th at p. 1174.)
33
After receiving notification from the jury that it appeared to be deadlocked as to a
verdict regarding one of the defendants, the trial court excused the jury for a long
weekend. After the jury returned to deliberations following the break, it reached a verdict
concerning the second defendant later that day.
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In a supplemental brief filed prior to oral argument, Letner raises another basis for
claiming that the trial court erred by denying the motions to sever. Relying upon the
United States Supreme Court‟s decision in Kennedy v. Louisiana (2008) ___ U.S. ___
[128 S.Ct. 2641], he contends the denial of severance was reversible error because, by
extension of the high court‟s holding in Kennedy, that court, in effect, overruled its
decision in Tison, supra, 481 U.S. 137, discussed ante, in part II.B.4.j, and therefore
separate penalty phase trials were necessary so that the jury would be required to find
which of the defendants was the actual killer. Even assuming this claim is properly
before us, we must reject it because Kennedy did not overrule Tison — indeed, the single
citation to Tison in the court‟s opinion in Kennedy simply describes Tison’s holding.
(Kennedy, supra, ___ U.S. at p. ___ [128 S.Ct. at p. 2650].) “Courts exercising inferior
jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their
function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455; see also Rodriguez de Quijas v.
Shearson/Amer. Exp., Inc. (1989) 490 U.S. 477, 484 [“If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the [lower courts] should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions.”].)
2. Assertedly Improper Cross-Examination of Letner Regarding Letters He
Wrote Concerning the Crimes (Tobin)
During the direct examination of Letner, he briefly testified concerning five letters
regarding Pontbriant‟s murder that he wrote to fellow jail inmate Danny Payne that were
part of a plan by which Payne and Letner would offer information to the prosecution in
return for favorable treatment. On cross-examination, the prosecutor questioned Letner
at length concerning the letters, primarily focusing upon the inconsistencies between the
letters and Letner‟s penalty phase testimony regarding the murder. This cross-
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examination was supported by a display of enlarged copies of the letters placed before the
jury, and Letner‟s reading aloud from portions of the letters.
In the first letter, Letner told Payne that Tobin decided to kill Pontbriant while
Letner was out purchasing beer, but that when Letner arrived back at the house he found
Tobin stabbing her in the neck. In this account, Tobin told Letner that he killed
Pontbriant because she had refused his sexual advances. Letner testified that in the first
letter, he did not tell Payne the “truth,” because he did not want to admit to being a
coward and letting Tobin kill Pontbriant while he (Letner) merely watched. According to
Letner‟s testimony, Payne did not believe this version of the murder, and Letner
subsequently wrote several more letters recounting “the exact truth.” These additional
letters generally were consistent with Letner‟s trial testimony. Letner, however, also
wrote that he had gone to Pontbriant‟s house to steal her car and to have sexual relations
with her so that she would give him money. He further stated that he did have sexual
intercourse with her on the couch (contrary to his trial testimony), and that Tobin also had
demanded to have sex with her. Pontbriant, however, became angry and threatened to
call the police, which triggered a heated response by both Tobin and Letner, although it
was Tobin who went to the unexpected extreme of murdering her. Letner did not
mention in the letters that Tobin had threatened to kill him if he interfered. Letner
testified, however, that some of the content of these letters was Payne’s version of the
murder, which Payne had told Letner to incorporate into the letters.
Tobin twice moved for a mistrial based upon Letner‟s testimony introducing
assertedly prejudicial information concerning Tobin that was not contained in the
letters,34 but did not object specifically to the prosecutor‟s cross-examination of Letner
34
Letner mentioned that Tobin told Letner that he (Tobin) had killed someone in
Napa, and Letner testified that Tobin was about to shoot Earl Bothwell during the
argument at the Iowana Motel but that Letner was able to disarm Tobin.
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concerning the letters. Moreover, Tobin‟s attorney also cross-examined Letner
concerning the letters.
On appeal, Tobin contends, however, that the testimony elicited by the
prosecutor‟s cross-examination concerning the letters was improper because it
(1) precipitated the introduction of inadmissible hearsay, (2) violated section 352 of the
Evidence Code, (3) precipitated the introduction of inappropriate aggravating evidence,
and (4) denied Tobin his constitutional right to confront the witnesses against him.
Tobin, however, forfeited his appellate claims by failing to raise them in the trial court.
To the extent Tobin contends that Letner‟s objection, based upon hearsay, to testimony
concerning one of the letters was sufficient to preserve Tobin‟s appellate hearsay claim,
he is mistaken. Even if Tobin‟s failure to join in the objection did not foreclose this
claim, Letner‟s objection concerned a letter written by Danny Payne, which, as the
prosecutor stated, was not offered for the truth of what Payne wrote, but for the purpose
of explaining what Letner did in response, that is, write the letters regarding the murder.
The trial court properly overruled the objection. Moreover, the contents of that letter
have no bearing upon the issue whether the prosecution‟s cross-examination concerning
the letters written by Letner introduced improper hearsay evidence as to Tobin.
In any event, Tobin‟s appellate claims are without merit. The prosecution‟s cross-
examination concerning the letters explored a proper basis upon which to rebut Letner‟s
testimony, which included the subject of the letters. (Mayfield, supra, 14 Cal.4th at
p. 754 [cross-examination can explore a defendant‟s testimony in greater detail than the
direct testimony, and, in general, the permissible scope of cross-examination is very
broad].) To the extent this claim restates Tobin‟s challenge to the denial of the motion to
sever the penalty phase trials, we reject such a claim for the reasons stated ante, in part
II.C.1. Use of the letters also did not violate Tobin‟s constitutional right to confront the
witnesses against him, even were we to agree with his assertion that the letters were, to
some degree, actually the statements of Danny Payne, who did not testify. Although
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Letner testified that the letter writing was supposedly part of a plan to gain leniency from
the prosecution, there is no evidence in the record suggesting that Payne was acting as a
law enforcement agent in this process. Therefore, the statements in the letters did not
constitute “testimonial” evidence as that term has been defined after the United States
Supreme Court‟s decision in Crawford v. Washington (2004) 541 U.S. 36, and their
admission did not violate Tobin‟s confrontation rights. (People v. Geier (2007) 41
Cal.4th 555, 605 [holding that only “testimonial” statements implicate the confrontation
clause, and “a statement is testimonial if (1) it is made to a law enforcement officer or by
or to a law enforcement agent and (2) describes a past fact related to criminal activity for
(3) possible use at a later trial”]; see also People v. Cage (2007) 40 Cal.4th 965, 986-987
[statement made to physician at hospital for purposes of treatment was not testimonial
and was not admitted in violation of Crawford].)
3. Assertedly Erroneous Admission of Unadjudicated Prior Offenses (Letner,
Tobin)
Defendants contend the admission at trial of evidence concerning their
unadjudicated prior offenses violated their rights to due process and a reliable penalty
determination because of the passage of time, the supposed unreliability of the evidence,
and the circumstance that the jury that considered whether the unadjudicated offenses had
been proved already had found defendants guilty of the charges in this case, thereby
assertedly eroding the presumption of innocence. Assuming that this claim constitutes a
challenge to the constitutionality of the death penalty statute, and that defendants
therefore may raise it for the first time on appeal, the claim nonetheless fails. We
previously have concluded that the requirement that such unadjudicated offenses be
proved beyond a reasonable doubt before the jury may consider them in aggravation is
sufficient to protect a defendant‟s constitutional rights. (People v. Valencia (2008) 43
Cal.4th 268, 311; People v. Smith (2005) 35 Cal.4th 334, 368; People v. Carpenter
(1999) 21 Cal.4th 1016, 1060-1061; People v. Williams (1997) 16 Cal.4th 153, 239;
117
People v. Stanley (1995) 10 Cal.4th 764, 822-823.) Defendants have not persuaded us
that this conclusion is incorrect.
4. Asserted Prosecutorial Misconduct During Penalty Phase Closing
Argument (Letner, Tobin)
Defendants contend the prosecutor committed misconduct by stating, at the
conclusion of her closing argument to the jury: “Lastly, ladies and gentlemen, remember
this proverb. Remember that Jesus forgave the thief on the cross next to him, who, by his
own admission was justly condemned. He gave the thief a place in paradise. But
the thief still had to die for his crimes. In the name of the [P]eople of the State of
California, I ask you to return the death penalty.”
“A prosecutor may not cite the Bible or religion as a basis to impose the death
penalty. [Citations.] On the other hand, we have suggested it is not impermissible to
argue, for the benefit of religious jurors who might fear otherwise, that application of the
death penalty according to secular law does not contravene biblical doctrine [citations],
or that the Bible shows society‟s historical acceptance of capital punishment [citation].”
(People v. Zambrano (2007) 41 Cal.4th 1082, 1169 (Zambrano).) We have recognized
that biblical references made by attorneys in argument to the jury are improper if they
would tend to convince the jury that their verdict should be based upon legal or other
principles apart from what is stated in the trial court‟s instructions. (People v. Wash
(1993) 6 Cal.4th 215, 261 [“[t]he primary vice in referring to the Bible and other
religious authority is that such argument may „diminish the jury‟s sense of responsibility
for its verdict and . . . imply that another, higher law should be applied in capital cases,
displacing the law in the court‟s instructions.‟ [Citations.]”].)35
35
We observe that defendants‟ trial occurred before we rendered our decisions
explicitly condemning biblical references in counsel‟s argument that lessen the jury‟s
sense of responsibility or imply that the jury should follow some law other than that set
forth in the trial court‟s instructions. Accordingly, we are not faced with a prosecutor‟s
(footnote continued on next page)
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Defendants failed to object to the statement, or to request that the jury be
admonished to follow the law as set forth in the court‟s instructions rather than a biblical
proverb. Because we cannot assume that an objection and admonition would have been
futile or ineffective, defendants have forfeited their appellate claim of misconduct.
(Zambrano, supra, 41 Cal.4th at p. 1169; People v. Slaughter (2002) 27 Cal.4th
1187,1209 (Slaughter); People v. Wrest (1992) 3 Cal.4th 1088, 1105).) In any event, the
prosecutor‟s biblical reference did not constitute prejudicial misconduct.
In Zambrano, we concluded that, although the prosecutor prefaced his religious
remarks by explaining he was attempting to allay any concerns a juror might have that
voting for the death penalty would be contrary to biblical teachings, his actual remarks
went beyond addressing that concern and instead asserted that the Bible demanded that
the death penalty be imposed when a defendant has committed murder. The prosecutor
quoted Genesis chapter 9, verse 6 “(„whoever sheds the blood of man, by man shall his
blood be shed, for in [H]is image did God make man‟)” (Zambrano, at p. 1168), and told
the jury that “this stood for two concepts: „The first is that capital punishment for
murderers is necessary to preserve the sanctity of human life, and second being it is
man‟s obligation to do it.‟ The sanctity of life, the prosecutor continued, does not forbid,
but demands, the death penalty for murder, because a lesser penalty „means that the
taking of life is not that serious an offense.‟ [¶] The prosecutor followed with other
biblically attributed quotes on a similar theme: „He who fatally strikes a man shall be put
to death‟; „You shall not make reparations for the soul of a murderer who deserves to die,
(footnote continued from previous page)
argument that “postdates and deliberately contravenes the holdings in those decisions
[which might] constitute[] a more serious form of prosecutorial misconduct warranting
reversal of the penalty phase judgment.” (People v. Vieira (2005) 35 Cal.4th 264, 298,
fn. 11 (Vieira).)
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and he shall be put to death‟; „Vengeance is mine, I will repay, saith the Lord‟; „The ruler
bears not the sword in vain for he is a minister of God, a revenger to execute wrath upon
him that doeth evil.‟ ” (Zambrano, supra, 41 Cal.4th at pp. 1168-1169.) We assumed the
prosecutor‟s comments went too far, but concluded that the defendant had suffered no
prejudice. (Id. at p. 1170.)
Defendants contend the prosecutor‟s biblical reference in the present case, which
constituted her penultimate statement to the jury, was improper because it (1) contrasted
the seriousness of defendants‟ offenses with those of the thief who was crucified,
implying that defendants were more deserving of a death sentence, and (2) lessened the
significance of a death verdict by implying that defendants could be forgiven for their
crimes in the afterlife, and might be more likely to obtain such forgiveness if they were
sentenced to death. The Attorney General, on the other hand, asserts that the prosecutor‟s
comments might be viewed as simply contrasting the concepts of secular accountability
and religious forgiveness, and that the brief biblical reference, which followed the
prosecutor‟s extensive arguments regarding why, under the applicable statutory law, the
death penalty was justified, would not have been interpreted by the jury as an argument
that the Bible or religion afforded reasons to impose this sentence, or lessened the jury‟s
responsibility in weighing a death verdict.
Even assuming for the sake of argument that the prosecutor‟s biblical references
overstepped the proper bounds of penalty phase argument, we conclude they do not
require reversal of defendants‟ judgments. In the present case, as in Zambrano, “the
prosecutor‟s biblical comments „were part of a longer argument that properly focused
upon the factors in aggravation and mitigation.‟ ” (Zambrano, supra, 41 Cal.4th at
p. 1170.) Moreover, in contrast to the comments at issue in Zambrano, the prosecutor
here did not tell the jury that the Bible “makes it man‟s duty to impose [the death penalty]
to preserve the sanctity of human life.” (Ibid.; see also Vieira, supra, 35 Cal.4th at
pp. 296-298 [concluding that prosecutor‟s biblical references, which included stating that
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under Judeo-Christian religious doctrine “capital punishment for murder is necessary in
order to preserve the sanctity of human life, and . . . only the severest penalty of death can
underscore the severity of taking life,” were not prejudicial]; Slaughter, supra, 27 Cal.4th
at p. 1211 [similar argument was not prejudicial].) Although the biblical reference in the
present case came at the end of the prosecutor‟s argument and therefore might have been
somewhat more prominent in the minds of the jurors than if it had fallen somewhere in
the middle of that argument, if the statement crossed the line of improper argument it did
so by a much narrower margin than in other cases in which we have found the error
harmless. For these reasons, we conclude there is no reasonable possibility the jury
would have reached a verdict more favorable to defendants had the prosecutor not made
the biblical references. (See People v. Williams (2010) 49 Cal.4th 405, 466-467.)
5. Failure to Instruct Concerning the Jury’s Sentencing Options (Letner,
Tobin)
Defendants contend the trial court erred by denying their requests to instruct the
jury regarding the probability that the sentence it chose in its verdict would be carried
out. Each defendant requested slightly different instructions, both of which, as we shall
explain, properly were refused by the trial court.
We have long held that the standard jury instructions, which the trial court gave in
the present case, adequately inform the jury of the meaning of the sentences that are
legally permissible when the jury has found that a defendant has committed special-
circumstance murder. (See, e.g., Abilez, supra, 41 Cal.4th at pp. 527-528; Prieto, supra,
30 Cal.4th at p. 270; People v. Barnett (1998) 17 Cal.4th 1044, 1176-1177.) At the same
time, courts often have been faced with the issue of deciding the appropriate response
when there is concern that the jurors may contemplate the possibility that the sentence
they choose might not be carried out because of future actions by the courts, the
Legislature, or the Governor — either the concern that the defendant nonetheless will be
released from prison if the sentence is life without the possibility of parole, or the concern
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that he or she will not actually be executed if the sentence is death. In People v. Ramos
(1984) 37 Cal.3d 136 (Ramos), we disapproved of the so-called “Briggs Instruction” that
informed the jury that “ „a sentence of confinement to state prison for a term of life
without the possibility of parole may in [the] future after sentence is imposed, be
commuted or modified to a sentence that includes the possibility of parole by the
Governor of the State of California‟ ” (id. at p. 150), because the instruction was
“seriously and prejudicially misleading and . . . invite[d] the jury to be influenced by
speculative and improper considerations.” (Id. at p. 153.) In a concluding footnote, we
addressed the question whether any instruction regarding the subject of commutation of
the sentence should be given. We stated: “When the jury raises the commutation issue
itself — either during voir dire or in a question posed to the court during deliberations —
the matter obviously cannot be avoided and is probably best handled by a short statement
indicating that the Governor‟s commutation power applies to both sentences but
emphasizing that it would be a violation of the juror‟s duty to consider the possibility of
such commutation in determining the appropriate sentence. [Citation.] [¶] When the
issue is not expressly raised by the jury, it is a close question whether it is preferable for
the court to give such a cautionary instruction on the assumption that some jurors might
otherwise be aware of the possibility of commutation and improperly consider it, or
whether such an instruction is simply more likely to bring the matter to the jury‟s
attention and, as a practical matter, be difficult to follow.” We therefore concluded that
when (as in the present case) the jury does not raise the issue, the trial court has no duty
to give an instruction concerning the subject on its own motion, but must do so if the
defendant requests one. (Id. at p. 159, fn. 12.)
In the wake of Ramos, we have addressed numerous claims of error arising from
the trial court‟s refusal to give defense-requested jury instructions that sought to convey
to the jury that it should not consider the possibility that some future event might prevent
the fulfillment of the sentence it imposes. One clear rule that has emerged from the cases
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is that, although the trial court generally must give an instruction when the defendant
requests one, the trial court is not required to do so on its own motion, and of course it
should not give an instruction that is incorrect. (People v. Gordon (1990) 50 Cal.3d
1223, 1275 [“It is of course virtually axiomatic that a court may give only such
instructions as are correct statements of the law.”].) Further, we have held that “[i]t is as
incorrect to tell the jury the penalty of death or life without possibility of parole will
inexorably be carried out as it is to suggest they need not take their responsibility as
seriously because the ultimate determination of penalty rests elsewhere.” (People v.
Thompson (1988) 45 Cal.3d 86, 130 (Thompson); see also People v. Ashmus (1991) 54
Cal.3d 932, 994-996 (Ashmus).) In the present case, the trial court therefore properly
refused to give the following instruction requested by defendant Tobin: “A sentence of
life without possibility of parole means that MR. TOBIN will remain in state prison for
the rest of his life and will not be paroled at anytime. A sentence of death means that
MR. TOBIN will be executed in the gas chamber.” We reiterate that such an instruction
is an incorrect statement of the law. (See People v. Lindberg (2008) 45 Cal.4th 1, 53;
Thompson, supra, 45 Cal.3d at pp. 130-131.)
We must acknowledge that our cases have displayed some inconsistency
concerning instructions akin to the following one requested by Letner: “You are to
presume that if a defendant is sentenced to life without the possibility of parole, he will
spend the rest of his life in state prison. [¶] You are to presume that if a defendant is
sentenced to death, he will be executed in the gas chamber.” In Ramos, we suggested
that an appropriate instruction would consist of a “short statement indicating that the
Governor‟s commutation power applies to both sentences but emphasizing that it would
be a violation of the juror‟s duty to consider the possibility of such commutation in
determining the appropriate sentence.” (Ramos, supra, 37 Cal.3d at p. 159, fn. 12.) In
Thompson, after holding that a trial court should not instruct the jury that the sentence
inexorably will be carried out, we suggested — in what we described in Ashmus as
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dictum (Ashmus, supra, 54 Cal.3d at p. 995) — that a correct statement of the law to be
given upon the defendant‟s request would instruct the jurors “that whether or not there
were circumstances that might preclude either the death penalty or life without possibility
of parole from being carried out, they should assume it would be carried out for purposes
of determining the appropriate sentence for this defendant . . . .” (Thompson, supra, 45
Cal.3d at p. 131.) Subsequently, some defendants requested instructions that omitted the
“whether or not” part of our statement in Thompson and simply would have told the jury,
in a manner similar to Letner‟s proposed instruction, that the jury must “assume” that the
sentence it imposes will be carried out. In People v. Fierro (1991) 1 Cal.4th 173, 250
(Fierro), we concluded that such an instruction, as compared to one that incorrectly tells
the jury that the sentence it chooses inexorably will be carried out, “was not similarly
misleading, and, as we have previously observed [in Thompson], should have been
given.”
Some of our decisions, however, also appear to have concluded that telling the
jury to assume the sentence will be carried out is misleading and incorrect. (People v.
Arias (1996) 13 Cal.4th 92, 172 [the trial court properly refused to give “an instruction
that the jury must assume a sentence of death meant defendant would be executed, while
a sentence of life imprisonment without possibility of parole meant „[defendant] will
spend the rest of his life confined in state prison and will not be paroled at any time‟ ”];
People v. Hawthorne (1992) 4 Cal.4th 43, 75-76 [rejecting claim that trial court had a
duty on its own motion to instruct the jury that it must assume a death sentence will be
carried out, because such an instruction “misstates the law”].) We also have concluded
that a proposed instruction that would have told the jury that a sentence of life in prison
without possibility of parole means the defendant never will be released on parole, and
that therefore the jury “ „must assume in determining penalty in this case defendant will
not be released from prison ever,‟ ” was incorrect. (People v. Roybal (1998) 19 Cal.4th
481, 524-525.) More recently, in People v. Cox (2003) 30 Cal.4th 916, we addressed a
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claim that the trial court erred by giving, at the defendant‟s request, an instruction
providing: “ „If you find that a verdict of death is appropriate, you must assume that such
penalty will be imposed,‟ without giving a similar instruction regarding a sentence of life
without the possibility of parole.” We concluded the trial court did not err in so
instructing the jury regarding a death verdict, because although “it would be erroneous to
instruct the jury that if it returns a death verdict, the sentence of death will inexorably be
carried out[,] the trial court may give such an instruction at the defendant‟s request.”
(Cox, supra, 30 Cal.4th at p. 967; see also People v. Williams (2008) 43 Cal.4th 584, 647
[observing that “to instruct the jury that it must assume that a sentence of life without the
possibility of parole means the defendant will be imprisoned for the rest of his or her life
is inaccurate because it fails to acknowledge that the Governor retains the power of
commutation”].)
It appears that the apparent tension among our decisions regarding this subject
stems from the evolution of the instructions that we have reviewed, which have not
always reflected the basic purpose to be served by such instructions. As we observed in
Ramos, supra, 37 Cal.3d at page 155, a jury should not “consider matters that are both
totally speculative and that should not, in any event, influence [its] determination.”
Accordingly, the purpose of an instruction to the jury concerning the possibility that the
punishment it selects will or will not actually be carried out is to inform the jury that such
speculation concerning possible future events — of which no evidence has been
presented at the trial — is improper and should not play any part in the jury‟s
deliberations regarding the appropriate penalty. Telling the jury that it should “assume”
or “presume” that the sentence will be carried out obscures the purpose of the instruction.
Such an instruction also is misleading in the sense that, although other presumptions and
assumptions that juries are instructed to consider have their bases in logic and experience,
a presumption or assumption that the sentence will be carried out is, in fact, contradicted
by the real possibility, of which some jurors may be aware, that the sentence will not be
125
carried out. We therefore conclude the trial court did not err by refusing to give Letner‟s
proposed instruction.
In the future, if in a particular case the parties and the trial court decide that an
instruction on this issue would be appropriate, the court might instruct the jury as
follows: “It is your responsibility to decide which penalty is appropriate in this case.
You must base your decision upon the evidence you have heard in court, informed by the
instructions I have given you. You must not be influenced by speculation or by any
considerations other than those upon which I have instructed you.”
Even to the extent we might conclude, in light of our decisions in cases such as
Fierro, that in the present case the trial court‟s failure to give the instruction requested by
Letner was error, any such error was harmless under any standard. “[A]bsent any
evidence to suggest that the jury was confused about the issue or concerned that
[defendants‟] sentence[s] would not be carried out, the failure to so instruct cannot be
deemed prejudicial.” (Fierro, supra, 1 Cal.4th at p. 250.) There was no evidence of jury
confusion or concern in the present case, nor do we accept defendants‟ arguments that
“empirical studies” establish that jurors typically are confused or concerned with these
questions even when they do not expressly bring up the issue. (See Boyer, supra, 38
Cal.4th at p. 487.) We also have rejected repeatedly the contention that the absence of an
instruction concerning the meaning of a sentence of life imprisonment without the
possibility of parole violates a defendant‟s federal constitutional rights under the high
court‟s decisions in Simmons v. South Carolina (1994) 512 U.S. 154 and similar cases.
(Rundle, supra, 43 Cal.4th at p. 187.)
6. Assertedly Erroneous Failure to Give Instruction Concerning Accomplice
Testimony (Tobin)
Tobin contends the trial court erred and violated his constitutional rights by not
giving, on its own motion, instructions concerning accomplice testimony, in light of the
circumstance that Letner testified at the penalty phase of the trial. This claim parallels
126
Letner‟s guilt-phase claim that the trial court should have given similar instructions
during the guilt phase of the trial based upon Tobin‟s testimony, a claim that we
addressed ante, in part II.B.4.b. “In both the guilt and penalty phases of trial, the court
ordinarily must instruct the jury sua sponte with CALJIC No. 3.18 [to view an
accomplice‟s testimony with care and caution] when out-of-court statements to police by
accomplices are admitted into evidence. [Citations.] We have recognized an exception,
however, when the penalty phase accomplice testimony relates to an offense of which the
defendant has already been convicted.” (People v. Carter (2003) 30 Cal.4th 1166, 1223.)
Even in the event the failure to give accomplice-testimony instructions was error (that is,
if the exception mentioned in Carter did not apply in the present case because Tobin
contested “the extent of his culpability” (ibid.)), any error in failing to give such
instructions was, as with Letner‟s guilt-phase claim, harmless under any standard. The
jury obviously discounted Letner‟s testimony, because it also sentenced him to death
despite his testimony that Pontbriant was the victim of a murderous rampage by Tobin,
which Letner had tried to prevent. In addition, there was adequate corroboration of
Letner‟s testimony to the extent it incriminated Tobin. Tobin already had testified that he
was at Pontbriant‟s house that night; he was found in the victim‟s car after the murder,
and he fled with Letner to Iowa. A rational juror could find that this testimony, plus the
physical evidence found at the house and in the car, implicated Tobin in the crimes.
7. Challenges to the Constitutionality of California’s Death Penalty Statute
(Letner, Tobin)
Defendants raise a number of constitutional challenges to California‟s death
penalty law that, as they acknowledge, have been rejected repeatedly by this court. They
provide no persuasive reason why we should reexamine our prior decisions.
As we recently observed in People v. Alexander (July 15, 2010, S053228)
___ Cal.4th ___, ___ [pp. 120-121] (Alexander): “[W]e reiterate that the death penalty
statutes adequately narrow the class of murderers eligible for the death penalty, are not
127
impermissibly vague or overbroad, and do not result in an „arbitrary and capricious‟ or
„wanton and freakish‟ penalty determination. [We] also have held that the statutes do not
require that the prosecution carry the burden of proof or persuasion at the penalty phase,
that the jury make written findings or reach unanimous decisions regarding aggravating
factors, or that the jury find beyond a reasonable doubt that (1) the aggravating factors
have been proved, (2) the aggravating factors outweigh the mitigating factors, or
(3) death is the appropriate sentence. Apprendi v. New Jersey (2000) 530 U.S. 466 and
Ring v. Arizona (2002) 536 U.S. 584 do not render the statutes invalid; neither does
Cunningham v. California (2007) 549 U.S. 270. [Citation.] There is no violation of the
equal protection of the laws as a result of the statutes‟ asserted failure to provide for
capital defendants some procedural guarantees afforded to noncapital defendants.”
The statutes are not invalid because they permit the jury to consider in
aggravation, under section 190.3, factor (b), evidence of a defendant‟s unadjudicated
offenses. (Rundle, supra, 43 Cal.4th at p. 198.)
“The use in the statutes, and in the standard jury instructions, of terms such as
„extreme,‟ „substantial,‟ „reasonably believed,‟ and „at the time of the offense‟ in setting
forth the mitigating factors does not impermissibly limit the mitigation evidence or
otherwise result in an arbitrary or capricious penalty determination. The statutes, as
translated into those standard jury instructions, adequately and properly describe the
process by which the jury is to reach its penalty determination. There is no need to
instruct the jury at the penalty phase (1) regarding a burden of proof, except as to section
190.3, factors (b) and (c), or the absence of a burden of proof, (2) regarding the meaning
of the term „mitigation,‟ (3) that mitigating factors can be considered only in mitigation,
(4) that if the mitigating evidence outweighs the aggravating evidence, the jury must
impose a sentence of life without the possibility of parole, or (5) that the jury is not
required to impose the death penalty even if it finds the aggravating evidence outweighs
the mitigating evidence. The trial court need not omit from the instructions any
128
mitigating factors that appear to be inapplicable in the defendant‟s case.” (Alexander,
supra, ___ Cal.4th at p. ___ [pp. 120-121].)
“There is no requirement that the trial court or this court engage in intercase
proportionality review when examining a death verdict. A sentence of death that
comports with state and federal statutory and constitutional law does not violate
international law or norms, or the Eighth Amendment to the United States Constitution.”
(Alexander, supra, ___ Cal.4th at p. ___ [p. 121].)
D. Asserted Cumulative Error (Letner, Tobin)
Defendants contend the cumulative effect of the asserted errors they have raised
on appeal requires reversal of their convictions and sentences, even if none of the errors
is prejudicial individually. We reject this claim. In those few instances in which we have
found error or assumed the existence of error, we have concluded that any error was
harmless. In combination, these errors do not compel the conclusion that defendants
were denied a fair trial.
III. DISPOSITION
The judgment as to each defendant is affirmed in its entirety.
GEORGE, C. J.
WE CONCUR:
BAXTER, J.
CHIN, J.
CORRIGAN, J.
129
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
Late in the night of March 1, 1988, a red and white Ford Fairmont speckled with
rain traveled through deserted downtown Visalia. Officer Alan Wightman of the Visalia
Police Department, aware of recent auto thefts in the area, saw the car and had a hunch
the driver was involved in some illegality, so he followed it. Wightman confirmed by
radio that the car had not been reported stolen. Still suspicious, he imagined that the
driver might be under the influence of drugs or alcohol and, like a properly trained peace
officer, followed the car but observed no violations of the traffic laws common to such
offenders, nor did he see either the driver or the passenger imbibe an alcoholic beverage.
The car eventually left the downtown area and entered the freeway, whereupon Officer
Wightman observed that it was traveling 40 miles per hour on a stretch of highway where
the speed limit was 55. At that point Wightman effected a traffic stop; briefly detained
and questioned the driver and passenger, defendants Richard Lacy Letner and
Christopher Allan Tobin; and conducted a quick visual scan of the car‟s interior and
trunk. Several hours later, after the discovery of Ivon Pontbriant‟s murder, police located
the car and searched it, finding additional evidence.
As fully explained by Justice Kennard, Officer Wightman lacked reasonable cause
to believe the driver of the Ford Fairmont had violated any law, and the officer thus had
no legally justifiable reason to detain—in effect, seize—defendants. I therefore join that
portion of Justice Kennard‟s dissenting opinion that concludes Officer Wightman‟s traffic
stop and ensuing detention violated defendants‟ Fourth Amendment rights. (See dis.
1
opn., post, at pp. 2-6.) But as explained below, because I conclude this constitutional
violation was harmless beyond a reasonable doubt, it does not require reversal.
Accordingly, I concur in the majority‟s decision to affirm the judgment.
I.
As a general rule, violations of the United States Constitution require reversal of
the resulting criminal judgment unless the error can be found harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) This stringent
standard of review applies to violations of the Fourth Amendment. (Bumper v. North
Carolina (1968) 391 U.S. 543, 550; People v. Rich (1988) 45 Cal.3d 1036, 1080; People
v. Jasmin (2008) 167 Cal.App.4th 98, 114.) In this case, the People obtained two
categories of evidence from the unjustified traffic stop: evidence obtained during the
detention itself, and evidence from a search of the car the next evening. As explained
below, the inculpatory power of the evidence gathered as a direct result of the traffic stop
was negligible, and its admission was thus harmless. As for the later car search, because
defendants had no recognizable possessory interest in the vehicle, they may not challenge
the search or object to the admission at trial of the evidence thereby obtained, nor in any
event was that evidence of particular significance to the prosecution. Applying Chapman
to this case, and recognizing the evidence of defendants‟ guilt was extensive, I conclude
the error in admitting the evidence defendants now challenge as a result of Officer
Wightman‟s traffic stop was harmless beyond a reasonable doubt.
II.
Officer Wightman‟s decision to stop and detain defendants resulted in the
following evidence being admitted against them in their criminal trial: (a) Wightman‟s
discovery of a common buck knife when he conducted a patsearch of defendant Letner
(see maj. opn., ante, at p. 8); (b) Wightman‟s observation of Heineken and Lowenbrau
beer bottles in the car (ibid.); (c) defendants‟ statements concerning their destination that
night; and (d) Wightman‟s observation and identification of defendants as the driver and
2
passenger of Pontbriant‟s car just hours after the crimes (maj. opn., ante, at pp. 7-8).
Because all this evidence came to the People by directly exploiting the traffic stop, a
seizure that, as explained in Justice Kennard‟s dissenting opinion, was unsupported by
reasonable cause to believe the driver was in violation of any law (dis. opn., post, at pp.
3-5), the evidence should have been suppressed under the Fourth Amendment to the
United States Constitution as “ „fruit of the poisonous tree.‟ ” (Wong Sun v. United States
(1963) 371 U.S. 471, 488; see People v. Sims (1993) 5 Cal.4th 405, 445.) Only if the
admission of this evidence can be found harmless beyond a reasonable doubt can we
affirm the judgment.
We may quickly discount the first two items for lack of probative value. The type
of knife Officer Wightman found in defendant Letner‟s pocket was not uncommon or
unusual and was an otherwise legal implement, nor was the blade matched to the wound
suffered by the victim. Moreover, when police experts disassembled the knife and
examined its component parts, they found no blood (maj. opn., ante, at p. 16), suggesting
that, given the copious amount of blood spilled by the victim due to the severing of her
carotid artery, Letner‟s buck knife was not the murder weapon.
Nor was Officer Wightman‟s observation of the beer bottles in the car particularly
inculpatory. The bottles were of common brands and, although those brands were linked
to the murder scene, the evidence of the officer‟s observations was cumulative to other
evidence: police discovered the same bottles in their later search of the car (see post, at
p. 10), and defendant Tobin testified at trial that he had bought both Heineken and
Lowenbrau beer and shared it with Letner and the victim on the night she was murdered.
Neither Wightman‟s discovery of Letner‟s knife nor his observation of the beer bottles
could have been significant to the jury‟s decision.
The People also introduced into evidence certain statements defendants had made
during the illegal detention, but none was of particular significance. Officer Wightman
testified at trial that Letner told him the Ford Fairmont he was driving belonged to Ivon
3
Pontbriant, that she lived on North Jacob Street, but that he did not know the exact
address. But as Wightman testified at the suppression hearing—and presumably could
have testified at trial—before he stopped defendants he had already received information
via police radio that the car belonged to Pontbriant.
Officer Wightman also testified at trial that at the time of the stop Letner said he
was taking Tobin home, whereas Tobin said that Letner was taking him home to Tobin‟s
house on South Crenshaw, where he lived with “Jeanette” (presumably his girlfriend
Jeanette Mayberry). Despite the majority‟s characterization of defendants‟ statements
during this detention as “inconsistent and apparently untruthful” (maj. opn., ante, at
p. 40), no inconsistency is apparent and the statements would not have given the jury
occasion to believe that defendants were being evasive.1
The most inculpatory evidence the People obtained from the unjustified traffic
stop was the identity of defendants as the persons driving Pontbriant‟s car shortly after
she was murdered. But considering all the circumstances, as detailed below, this
evidence was of little importance in connecting defendants to the murder. An
acquaintance of Letner‟s placed the pair at a bar between 7:30 p.m. and 9:30 p.m. the
evening Pontbriant was killed. Tobin also testified he and Letner were at a bar that
evening, but left to go to Pontbriant‟s house. The three of them spent the evening
drinking together, and Pontbriant and Letner made phone calls to Edward Burdette and
Kathy Coronado. Burdette corroborated that Pontbriant and Letner had called him that
night around 8:00 p.m. or later. Forensic experts determined that Pontbriant was killed
late that evening. Sometime after midnight, and before making the now-challenged
traffic stop, Officer Wightman observed two White men driving a red and white Ford
1
Wightman‟s testimony at the suppression hearing revealed a few more
inconsistencies, but these were not heard by the jury.
4
Fairmont and determined by radio that the car‟s registered owner was Pontbriant.2
Setting aside the evidence of the traffic stop, defendants were then seen around 4:00 a.m.
that same morning, on foot, at Denise Novotny‟s home. Apparently without access to a
car, they asked if her husband could give them a ride to work, saying it was an
emergency. She was acquainted with defendants and recognized them, but told them her
husband was out of town. Defendants thereafter fled the city under suspicious
circumstances suggestive of guilt. (See People v. Abilez (2007) 41 Cal.4th 472, 521-522
[flight logically permits an inference of guilty knowledge].) That evening police found
defendants‟ property in Pontbriant‟s car. Once in Iowa, defendants confessed to their
new employer, Earl Bothwell, that they were wanted for murder in California and had
taken a red and white Ford from a woman. After being apprehended in Iowa, Letner
temporarily escaped law enforcement custody.
In sum, Officer Wightman‟s discovery of defendant Letner‟s buck knife, his
observation of the beer bottles in the car, and his recounting of defendants‟ statements,
considered singly or together, were not particularly inculpatory or important to the
prosecution. Although Wightman‟s testimony placing defendants in the victim‟s car
shortly after she was killed was, by contrast, undoubtedly useful to the prosecution, this
information was presented to the jury by other means as well. Wightman‟s legal
observation of two White men in Pontbriant‟s car that night, coupled with the later
discovery by police of defendants‟ belongings in the abandoned Ford Fairmont,
sufficiently placed defendants in the car at that critical time. Thus, when weighed against
the web of other evidence connecting defendants to Pontbriant‟s murder, the admission of
the evidence obtained from Officer Wightman‟s improper detention of both defendants
was harmless beyond a reasonable doubt.
2
The officer at this point did not yet know that Pontbriant was a murder victim.
5
III.
The evening after the traffic stop, police returned to Pontbriant‟s Ford Fairmont,
which was still parked where defendants had left it, and searched it for clues. In the car,
police discovered a white rag bearing evidence of blood and some unopened bottles of
Heineken and Lowenbrau beer. (Maj. opn., ante, at p. 8.) In the trunk, police found
some stolen cosmetic and hair care items identified by witness Jeanette Mayberry as
belonging to defendant Letner. (Id. at p. 11.) Police also found in the trunk a sword and
a shotgun that defendant Tobin testified belonged to him. (Id. at p. 18.) These items
were significant evidence that defendants had been in the car and, inferentially, had
participated in Pontbriant‟s murder. Defendants contend the items should have been
suppressed as tainted by the initial illegality of the unjustified traffic stop. (Wong Sun v.
United States, supra, 371 U.S. at p. 488.) But because neither defendant owned or
legitimately possessed the car in which this evidence was found, they are foreclosed from
challenging the legality of the car‟s search.
“ „Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted.‟ [Citations.] A person who is
aggrieved by an illegal search and seizure only through the introduction of damaging
evidence secured by a search of a third person‟s premises or property has not had any of
his Fourth Amendment rights infringed. [Citation.] And since the exclusionary rule is an
attempt to effectuate the guarantees of the Fourth Amendment, [citation], it is proper to
permit only defendants whose Fourth Amendment rights have been violated to benefit
from the rule‟s protections.” (Rakas v. Illinois (1978) 439 U.S. 128, 133-134.) “[S]ince
voter approval of Proposition 8 in June 1982, state and federal claims relating to
exclusion of evidence on grounds of unreasonable search and seizure are measured by the
same standard.” (People v. Camacho (2000) 23 Cal.4th 824, 830.) “A defendant has the
burden at trial of establishing a legitimate expectation of privacy in the place searched or
6
the thing seized.” (People v. Jenkins (2000) 22 Cal.4th 900, 972; see also Rawlings v.
Kentucky (1980) 448 U.S. 98, 104.)
A person who, with permission, borrows a vehicle from the rightful owner and
thereby exercises legitimate control over it for a temporary period of time has a
recognizable expectation of privacy in the car. (People v. Leonard (1987) 197
Cal.App.3d 235, 239.) However, “[t]o mount a challenge to a search of a vehicle,
defendants must show, among other things, a legitimate basis for being in it, such as
permission from the owner. [Citation.] Defendants who do not have a legitimate basis
for being in a car that is not registered in the name of any of the car‟s occupants cannot
object to the search of the vehicle.” (U.S. v. Ponce (2d Cir. 1991) 947 F.2d 646, 649.)
Here, although Tobin testified that Letner had asked Pontbriant if he could borrow her car
(maj. opn., ante, at p. 18), and Officer Wightman testified that Letner told him they had
borrowed the car from Pontbriant (id. at p. 7), Tobin‟s testimony was self-serving, and
both witnesses‟ statements were hearsay and thus inadmissible for the truth of the matter
stated. Walter Gilliland, by contrast, who lived with and was romantically involved with
Pontbriant, testified she was protective of her car and rarely allowed anyone to drive it.
(Id. at p 3.) In the absence of solid evidence Pontbriant had loaned her car to defendants
or that they were driving it with her permission, and in light of Gilliland‟s testimony, I
conclude defendants lacked a legitimate expectation of privacy in the car‟s contents.
Consequently, defendants may not challenge the admission of the evidence discovered
therein.
But even were we to assume defendants established that Pontbriant had lent them
her car and that they at one time had a possessory interest in it sufficient to create a
legitimate expectation of privacy in its contents, any such expectation had ceased by the
time police searched it. Officer Wightman effected the now-challenged traffic stop
shortly after midnight. Because Letner did not have a driver‟s license and Tobin
appeared too intoxicated to drive, Officer Wightman instructed defendants to leave the
7
car on the side of the road. Although defendants had ample time to retrieve the car the
following day, Wightman recalled seeing the red and white Ford Fairmont, still parked
where defendants had left it, many hours later at 5:30 p.m. the next evening. (Maj. opn.,
ante, at p. 8.) Police did not seize the car until around 9:00 p.m. By that time Pontbriant,
the car‟s owner, had been identified as a murder victim and police had determined that
she was the owner of the Ford Fairmont. Given the passage of time and indications that
defendants had abandoned the car, any temporary possessory interest they may have had
in the car the previous night had expired by the time police searched it. (See People v.
Smith (1966) 63 Cal.2d 779, 800-801 [no reasonable expectation of privacy in an
abandoned rental car]; People v. Shepherd (1994) 23 Cal.App.4th 825, 828-829 [no
expectation of privacy in a purse abandoned in a stolen truck].)
In any event, even were I to conclude defendants could challenge the admission of
this evidence,3 its admission was not particularly damaging. A forensic analysis of the
bloody rag could not match the blood definitively to either defendant; the blood was
found to be merely consistent with defendant Tobin‟s blood (maj. opn., ante, at p. 11), as
it was also with Gilliland‟s blood (ibid.). Because Gilliland cohabitated with the victim
3
A question is presented whether defendants may be viewed as having abandoned
Pontbriant‟s car only because Officer Wightman illegally stopped the car and detained
them. (See, e.g., U.S. v. Ienco (7th Cir. 1999) 182 F.3d 517, 529, fn. 12 [evidence left in
a police car by an arrestee following an illegal arrest cannot be held to have been
voluntarily abandoned].) Because more than 18 hours had elapsed between Officer
Wightman‟s traffic stop and the police search, however, and the car was left parked on a
public street and was not situated so as to suggest defendants retained a possessory
interest in it (such as being parked in a private driveway or garage), to conclude
defendants intended to abandon Pontbriant‟s car and its contents, irrespective of the stop,
is reasonable. Defendants‟ abandonment of the car, moreover, distinguishes this case
from the authorities cited in the dissent. (Dis. opn., post, p. 7, fn. 2.) In any event, we
need not resolve whether the subsequent car search was tainted by the illegal traffic stop
because, as explained, post, the evidence found in the car could not have been very
significant to the jury‟s decision to find defendants guilty, and any error was thus
harmless beyond a reasonable doubt.
8
and presumably had access to her car, and because the victim‟s blood was not found on
the rag, the persuasive force of the forensic evidence of the bloody rag was negligible,
even considering that Tobin had allegedly told fellow inmate Gregory Gerrard he was
worried about the discovery of the rag. The diminished probative value of the rag is clear
when we compare it to the evidence police found at the murder scene: (a) bloody hairs
on the victim‟s body that matched defendant Letner‟s hair; (b) blood on a pillowcase
(consistent with both defendant Tobin‟s and Gilliland‟s blood); (c) a semen stain on the
carpet consistent with Tobin‟s antigenic activity (and inconsistent with Gilliland‟s)
(ibid.); and (d) strong evidence, including Tobin‟s own testimony, that both defendants
had spent much of the evening with the victim.
Police found a Heineken beer bottle and a Lowenbrau beer bottle cap at the crime
scene (maj. opn., ante, at p. 3), lending some significance to the bottles of beer of the
same brand police found in the Ford Fairmont when they searched it. But these brands of
beer are not particularly distinctive or unusual and, in any event, Tobin testified he had
purchased some Heineken and Lowenbrau beer and drank it with the victim the night she
was murdered. (Id. at p. 17.) Accordingly, the evidence from the car was merely
cumulative and hence not particularly inculpatory.
The balance of the evidence found by police in Pontbriant‟s car is of even less
importance. Jeanette Mayberry identified the stolen cosmetic and hair care items police
found in the trunk as defendant Letner‟s property (maj. opn, ante, at p. 11), but there was
little doubt Letner was with the victim the night she was murdered: defendant Tobin so
testified, and both Edward Burdette and Kathy Coronado testified that Letner (together
with Pontbriant) had made a series of aggressive telephone calls to them on the night in
question. This evidence unequivocally places Letner at the victim‟s home on the night of
the murder. Nor was either the sword or the shotgun, found by police in the car‟s trunk,
significant: Tobin testified the items belonged to him (id. at p. 18), and neither was used
9
in the crimes. Finally, Tobin testified and admitted being with the victim on the night she
was killed.
In sum, even were I to conclude defendants were entitled to challenge the
warrantless search of Pontbriant‟s car due to some fleeting possessory interest in it, the
evidence found in the car was either of little inculpatory value or cumulative to other
evidence. The admission of the evidence from the car was thus harmless beyond a
reasonable doubt.4
For the reasons stated above, although I agree with Justice Kennard‟s dissenting
opinion that Officer Wightman‟s traffic stop was not supported by reasonable cause, I
concur in the majority‟s decision to affirm the judgments of conviction.
WERDEGAR, J.
I CONCUR:
MORENO, J.
4
This conclusion renders it unnecessary to address defendants‟ additional claim that
because the People did not, at the suppression hearing below, rely on defendants‟ lack of
a possessory interest in the car, the People have forfeited the right to raise that theory on
appeal. (See People v. Wilkinson (2008) 163 Cal.App.4th 1554, 1574 [“the People may
not . . . tender a new theory not raised at the original suppression hearing”]; see also
Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640.)
10
DISSENTING OPINION BY KENNARD, J.
In this case, a police officer stopped a car late at night. Because the car was
traveling below the posted speed limit, the officer suspected the driver of being
intoxicated. The day after the stop, police discovered that the driver and his passenger
(the defendants in this case) had been traveling in a car owned by a woman who had been
murdered shortly before the stop. The majority upholds the legality of the detention. I
disagree.
I
Around midnight on March 1, 1988, Visalia Police Officer Alan Wightman saw a
Ford Fairmont traveling through downtown Visalia. It had rained heavily in that area a
couple of hours earlier; parked cars in the area were wet, while many moving vehicles
were dry because the drops had blown off. Because the Ford Fairmont‟s exterior was
wet, Officer Wightman suspected it had been parked nearby until recently. In the
previous three months, the police had received many reports of vehicle theft and vehicle
tampering at approximately 10 used car lots in downtown Visalia. A week earlier, one of
the lots, which the officer described as a “used Ford car lot,” had reported a car theft.
Suspecting that the Ford Fairmont might be stolen, Wightman followed the car as it
traveled through town (breaking no laws) and turned onto an on-ramp to State Highway
198, on which no other cars were traveling at the time. A call-in by Wightman soon
revealed that the car was owned by a private party, Ivon Pontbriant, and that it had not
been reported stolen.
1
At the point where the car entered State Highway 198, it was a freeway, with a
maximum speed limit of 55 miles per hour. But after a very short distance, which Officer
Wightman estimated at “a half, three quarters of a mile, closer to a mile maybe,” it
became a highway with a maximum speed limit of 45 miles per hour. The car traveled at
40 miles per hour on the short stretch of freeway; the officer then stopped the car where
the speed limit dropped. He did so primarily because he suspected the driver of being
intoxicated, explaining that in his experience intoxicated drivers tend to drive slowly for
no apparent reason.
In the car were defendants Richard Letner (the driver) and Christopher Tobin (the
passenger). Letner told Officer Wightman that he had borrowed the car from Ivon
Pontbriant; Letner and Tobin, who was drunk, made inconsistent statements regarding
their destination. Officer Wightman patted down Letner and found a buck knife in his
pants pocket; he also saw an opened beer bottle in plain view in the car. When Letner
could not produce a license, Officer Wightman ordered the two defendants to walk home.
The next day, after learning of Pontbriant‟s murder, police officers searched the
car and found, in addition to personal property belonging to both defendants, a rag with
blood on it consistent with defendant Tobin‟s. At Pontbriant‟s house, the police found
beer bottles of the same brand as the opened bottle that Officer Wightman had seen in the
car at the time of the stop the previous night.
II
“[L]aw enforcement agents may briefly stop a moving automobile to investigate a
reasonable suspicion that its occupants are involved in criminal activity. [Citation.]
Although stopping a car and detaining its occupants constitute a seizure within the
meaning of the Fourth Amendment, the governmental interest in investigating an
officer‟s reasonable suspicion, based on specific and articulable facts, may outweigh the
Fourth Amendment interest of the driver and passengers in remaining secure from the
intrusion. [Citation.]” (United States v. Hensley (1985) 469 U.S. 221, 226.) Here, as
2
explained below, at the time of the car stop Officer Wightman lacked a reasonable
suspicion that defendants were involved in criminal activity.
That the car, while being followed by a marked police car, was traveling 15 miles
per hour below the maximum speed limit of 55 on State Highway 198, did not give rise to
a reasonable suspicion that the driver had stolen the car and was therefore trying to avoid
contact with the police: It is not at all unusual for a driver to slow down upon seeing a
police car, irrespective of any wrongdoing. Here, the driver did not suddenly slow down
when Officer Wightman began following the car. Rather, the driver merely did not
accelerate to the maximum speed limit after entering the freeway.
Four reasons come to mind as to why, under the circumstances of this case, a
driver might have driven slowly on the freeway. First, if, as Officer Wightman testified,
parked cars in downtown Visalia were still wet from a recent heavy rain, it is reasonable
to infer that the freeway too was still wet, which would lead most motorists to slow down
because of slippery road conditions.1 Second, it is not at all unusual for drivers not to
accelerate to a maximum speed limit when, as here, they can drive at that speed only for
just about a mile before a drop of the posted speed limit. If defendant Letner, instead of
driving at 40 miles per hour on the freeway, had immediately accelerated to the
maximum speed limit of 55 miles per hour after entering the freeway, he could have
maintained that speed only for a minute before the speed limit on the stretch that became
a highway fell to 45 miles per hour. Third, the stop occurred at midnight; many people
drive slower late at night, because of poor visibility. Fourth, Officer Wightman testified
1
A handbook for California drivers published by the California Department of
Motor Vehicles recommends that motorists reduce their speed by five to 10 miles per
hour on wet roads. (Dept. Motor Vehicles, 2010 California Driver Handbook (2010) p.
67 <http://www.dmv.ca.gov/pubs/dl600.pdf> [as of July 29, 2010].)
3
that the car‟s engine was “running rough”; a driver experiencing that problem might fear
a mechanical problem and decide not to drive at the maximum posted speed limit.
Although there is no published California decision on the legality of stopping a car
simply because it is traveling below the maximum speed limit, courts in other states have
concluded that such a stop lacks the requisite reasonable cause to believe that the driver is
engaged in criminal activity unless there are other suspicious circumstances. (See
Faunce v. State (Fla.Dist.Ct.App. 2004) 884 So.2d 504, 506 [“the fact that the defendant
in this case was driving slowly is not alone sufficient to give rise to a reasonable
suspicion”]; State v. Brown (N.D. 1993) 509 N.W.2d 69, 71 [“The mere fact that a driver
is traveling at a slower than usual speed on a roadway does not by itself create a
reasonable suspicion of driving under the influence of alcohol or of other illegal
activity”]; State v. Bacher (Ohio Ct.App. 2007) 867 N.E.2d 864, 867; State v. Rincon
(Nev. 2006) 147 P.3d 233, 236-237; Richardson v. State (Tex.App. 2000) 39 S.W.3d 634,
640; Raulerson v. State (Ga.Ct.App. 1996) 479 S.E.2d 386, 387; People v. Rotkvich
(Ill.App.Ct. 1993) 628 N.E.2d 888, 892; see also United States v. Diaz (5th Cir. 1992)
977 F.2d 163, 165; United States v. Abdon-Limas (D.N.M. 1991) 780 F.Supp. 773, 780.)
Here, there were no suspicious circumstances tending to show that the occupants of the
car were engaged in illegal activity.
Because of the recent rain, Officer Wightman found it significant that droplets of
water were still on the car. This led him to suspect that the car had been stolen from one
of the car lots in downtown Visalia. At most, however, the presence of raindrops on the
car indicated that it had not been driven a long distance. It did not indicate that the car
had been stolen from a car lot; the car could have been parked in the downtown area
before it was driven to the freeway. And once Officer Wightman learned, before
stopping the car, that it was registered to a private owner rather than a car dealer, it was
no longer reasonable for him to believe that the car had been stolen from a car lot.
4
According to the majority, however, Officer Wightman reasonably suspected the
car was stolen from a car lot in downtown Visalia. To explain why this suspicion was
reasonable even after Officer Wightman learned that the car was owned not by a car
dealer, but by a private party (Pontbriant), the majority asserts that “the dealer might have
recently purchased [the car] and not yet updated the ownership records, or the car could
have been at the dealership for repairs.” (Maj. opn., ante, at p. 47.) These hypothetical
assertions are too speculative to support the majority‟s conclusion of reasonable
suspicion by the officer that the car had been stolen from a car lot.
The majority also cites three cases to support its conclusion that, because the car in
question was traveling 15 miles per hour below the maximum speed limit of 55, “a
reasonable officer might suspect the driver of the car was attempting to avoid contact
with the police.” (Maj. opn., ante, at p. 45.) These three cases are distinguishable,
however.
The first case, United States v. Villalobos (5th Cir. 1998) 161 F.3d 285, states that
“noticeable deceleration in the presence of a patrol car can contribute to reasonable
suspicion, even though drivers often slow when they see law enforcement personnel.”
(Id. at p. 291.) But here the car did not decelerate; rather, it merely failed to accelerate to
the maximum 55-mile-per-hour speed limit when it entered the freeway.
The second case, United States v. Lopez-Martinez (10th Cir. 1994) 25 F.3d 1481,
states that “maintaining a noticeably slow speed in the presence of a police officer may
suggest nervousness.” (Id. at p. 1486.) But in that case two cars were both traveling near
the Mexican border, at a speed far below the posted speed limit (30 miles per hour when
the posted speed limit was 55 miles per hour) in broad daylight and in good weather,
when no other cars were on the road; there was no apparent explanation for the cars‟ slow
speed. Here, the car driven by defendant Letner was going significantly faster (40 miles
per hour in a 55-miles-per-hour zone) when stopped and, as explained earlier (see pp. 3-
5
4, ante), the circumstances surrounding the stop indicated that the car was traveling at
that speed for valid reasons.
The third case on which the majority relies is People v. Gibson (1963) 220
Cal.App.2d 15, which states: “The fact that a driver proceeds at a speed slower than the
speed limit under circumstances where he might normally proceed at the higher speed
also is a factor appearing to justify an officer‟s investigation.” (Id. at p. 20.) But in
Gibson the detaining officers observed the slow-moving vehicle within two minutes after
learning of a robbery on the same street, at a time (4:00 a.m.) when no other cars were on
the street; while following the car, the officers “observed a motion . . . which looked to
them like „someone was trying to put something in the back part of the car‟ or „someone
moving something in the car.‟ ” (Id. at p. 18.) Such facts are lacking here.
When, as in this case, a trial court erroneously denies a motion to suppress
evidence obtained in violation of the federal Constitution‟s Fourth Amendment, the error
is harmless only if the reviewing court can say “beyond a reasonable doubt that the
evidence complained of did not contribute to” the conviction. (Franks v. Delaware
(1978) 438 U.S. 154, 162; see also Bumper v. North Carolina (1968) 391 U.S. 543, 550.)
Here, Officer Wightman‟s midnight observation of both defendants in a car that belonged
to Ivon Pontbriant, together with evidence indicating that Pontbriant was murdered earlier
that night, played a key role in the prosecution‟s case. Although the prosecution also
presented other evidence tending to show guilt, I cannot say beyond a reasonable doubt
that Officer Wightman‟s testimony did not contribute to the jury‟s verdict.2
2
Justice Werdegar‟s concurring and dissenting opinion agrees with me that Officer
Wightman‟s detention of defendants was illegal. But she concludes that certain evidence
found in the car linked defendants to the murder and was admissible against defendants
notwithstanding the illegal detention. She reasons: “[B]ecause neither defendant owned
or legitimately possessed the car in which this evidence was found, they are foreclosed
from challenging the legality of the car‟s search.” (Conc. & dis. opn. of Werdegar, J.,
ante, p. 6.) Based in part on this conclusion, she reasons that the trial court‟s erroneous
(footnote continued on next page)
6
For the reasons given above, I would reverse both defendants‟ murder convictions
and judgments of death.
KENNARD, J.
(footnote continued from previous page)
denial of defendants‟ motion to suppress the seized evidence was harmless beyond a
reasonable doubt. I disagree.
I do agree that defendants are foreclosed from challenging the legality of the car
search, because the car was not owned by defendants but by murder victim Pontbriant.
But at issue here is not the legality of the search; at issue here is the legality of the
detention that preceded the search. “If the physical evidence found in the vehicle[] was
the fruit of the defendants‟ unlawful detention, it must be suppressed,” even though the
defendants lacked a possessory interest in the vehicle. (U.S. v. Shareef (10th Cir. 1996)
100 F.3d 1491, 1499-1500; see also 6 LaFave, Search and Seizure (4th ed. 2004)
§ 11.3(e), pp. 194-196; People v. Glick (1988) 203 Cal.App.3d 796, 799-800.) Here, the
seizure of the evidence linking defendants to the murder followed Officer Wightman‟s
illegal detention, after he ordered both defendants to leave the car, which still contained
the incriminating evidence, by the road. Thus, that seizure was a fruit of Officer
Wightman‟s illegal detention of defendants (see Wong Sun v. United States (1963) 371
U.S. 471, 487-488), and the items found in the car should have been suppressed.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Letner and Tobin
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S015384
Date Filed: July 29, 2010
__________________________________________________________________________________
Court: Superior
County: Tulare
Judge: William Silveira, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
J. Thomas Bowden and R. Clayton Seaman, Jr., under appointments by the Supreme Court, for Defendant and
Appellant Richard Lacy Letner.
Fern M. Laethem, Lynn S. Coffin and Michael J. Hersek, State Public Defenders, under appointment by the
Supreme Court, Alison Pease and Ronald F. Turner, Deputy State Public Defenders, for Defendant and Appellant
Christopher Alan Tobin.
__________________________________________________________________________________
Attorneys for Respondent:
Daniel E. Lungren, Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, George Williamson and Robert R.
Anderson, Chief Assistant Attorneys General, Mary Jo Graves, Assistant Attorney General, Ward A. Campbell,
Matthew L. Cate, Eric L. Christoffersen, John G. McLean and Mark A. Johnson, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
R. Clayton Seaman, Jr.
P.O. Box 12008
Prescott, AZ 86304
(928) 776-9168
Alison Pease
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814-3518
(916) 322-2676
Mark A. Johnson
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
9916) 322-5437
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Docket Number: | Category: | Status: |
| Thu, 07/29/2010 | S015384 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office Mark A. Johnson, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Letner, Richard Lacy (Appellant) Represented by Habeas Corpus Resource Center Jean R. Sternberg 303 Second Street, Suite 400 South San Francisco, CA |
| 3 | Letner, Richard Lacy (Appellant) Represented by R. Clayton Seaman Attorney at Law P.O. Box 12008 Prescott, AZ |
| 4 | Tobin, Christopher Allan (Appellant) Represented by Office of the State Public Defender-Sac Alison Pease, Deputy State Public Defender 801 "K" Street, Suite 1100 Sacramento, CA |
| Dockets | |
| Apr 24 1990 | Judgment of death |
| May 4 1990 | Filed certified copy of Judgment of Death Rendered 4-24-90 (Richard Lacy Letner). |
| May 4 1990 | Filed certified copy of Judgment of Death Rendered 4-24-90 (Christopher Allan Tobin) |
| Jun 11 1990 | Application for Extension of Time filed By Applt Letner (Through Trial Counsel, Charlotte Wittig) to request correction of Record. |
| Jun 13 1990 | Extension of Time application Granted To Applt Letner To 8-13-90 To request correction of Record. |
| Jul 27 1990 | Application for Extension of Time filed By Applt Letner (By Trial Counsel, Charlotte Wittig) to request correction of Record. |
| Jul 27 1990 | Extension of Time application Granted To Applt Letner To 10-12-90 To request Corr. of Record. |
| Jun 25 1991 | Order appointing State Public Defender filed To represent Applt Tobin on Automatic Appeal, Including Any Related Habeas Proceedings. |
| Jun 25 1991 | CAP CONFLICT EXISTS CAP HAS A CONFLICT OF INTEREST AS TO APPELLANT TOBIN. |
| Jul 22 1991 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| Jul 26 1991 | Extension of Time application Granted To Applt Tobin To 9-23-91 To request correction of Record. |
| Sep 20 1991 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| Sep 25 1991 | Extension of Time application Granted To Applt Tobin To 11-22-91 To request correction of Record. |
| Nov 21 1991 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| Nov 26 1991 | Extension of Time application Granted To Applt Tobin To 1-21-92 To request Corr. of Record. |
| Jan 14 1992 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| Jan 17 1992 | Extension of Time application Granted To Applt Tobin To 3-23-92 To request correction of Record. |
| Mar 10 1992 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| Mar 13 1992 | Extension of Time application Granted To Applt Tobin To 5-22-92 To request Corr. of Record. |
| May 8 1992 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| May 13 1992 | Extension of Time application Granted To Applt Tobin To 6-22-92 To request Corr. of Record. |
| May 18 1992 | Opposition filed By Resp to Applt's request for Ext. of time to request Corr. of Record. |
| Jun 10 1992 | Application for Extension of Time filed By Applt Tobin to request correction of Record. |
| Jun 16 1992 | Order filed: Upon the representation by Counsel that no further Requests for Ext. of time Are Anticipated, Ext. granted to Applt Tobin to 7-22-92 to request Corr. |
| Jun 16 1992 | Opposition filed To Applt's request for Ext. of time To request Corr. of Record (Opposition received in S.F. on 6-18-92) |
| Jul 22 1992 | Received: Copy of Applt Tobin's request for correction & Completion of Record (filed in Tulare Supr. Crt.) (283 Pp.) |
| May 10 1993 | Counsel appointment order filed For Applt Letner: J. Thomas Bowden Is appointed to represent Applt Letner on His A.A., Including Any Related Habeas Proceedings. |
| Jun 9 1993 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Jun 10 1993 | Extension of Time application Granted To Applt Letner To 8-12-93 To request correction of Record. |
| Aug 13 1993 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Aug 16 1993 | Extension of Time application Granted To Applt Letner To 10-12-93 To request correction of Record. |
| Sep 22 1993 | Compensation awarded counsel (Applt Letner) |
| Oct 4 1993 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Oct 8 1993 | Extension of Time application Granted To Applt Letner To 12-13-93 To request Corr. of Record. |
| Dec 6 1993 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Dec 8 1993 | Extension of Time application Granted To Applt Letner To 2-14-94 To request correction of Record. |
| Dec 9 1993 | Compensation awarded counsel (Applt Letner) |
| Feb 4 1994 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Feb 10 1994 | Filed: Suppl Declaration in support of request for Ext. of time (Letner). |
| Feb 14 1994 | Extension of Time application Granted To Applt Letner To 4-29-94 To request correction of Record. |
| Feb 23 1994 | Compensation awarded counsel (Applt Letner) |
| Mar 31 1994 | Compensation awarded counsel (Applt Letner) |
| Apr 4 1994 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Apr 7 1994 | Extension of Time application Granted To Applt Letner To 6-28-94 To request correction of Record. |
| Jun 6 1994 | Application for Extension of Time filed By Applt Letner to request correction of Record. |
| Jun 13 1994 | Extension of Time application Granted To Applt Letner To 8-29-94 To request Corr. of Record. no further Extensions of time will be Granted. |
| Jun 15 1994 | Compensation awarded counsel |
| Jun 23 1994 | Compensation awarded counsel |
| Jul 21 1994 | Compensation awarded counsel |
| Aug 26 1994 | Received: Copy of Applt Letner's request for correction and Completion of Record, filed in Superior Crt. (313 Pp.) |
| Sep 28 1994 | Compensation awarded counsel |
| Oct 13 1994 | Compensation awarded counsel |
| Dec 21 1994 | Compensation awarded counsel |
| Jan 18 1995 | Compensation awarded counsel |
| May 10 1995 | Compensation awarded counsel |
| Jun 28 1995 | Compensation awarded counsel |
| Aug 23 1995 | Compensation awarded counsel |
| Nov 7 1995 | Compensation awarded counsel |
| Dec 22 1995 | Compensation awarded counsel |
| Dec 29 1995 | Habeas funds request filed (confidential) By Applt Letner. |
| Jan 17 1996 | Compensation awarded counsel |
| Mar 14 1996 | Compensation awarded counsel |
| Jun 13 1996 | Compensation awarded counsel |
| Aug 28 1996 | Compensation awarded counsel |
| Sep 16 1996 | Compensation awarded counsel |
| Nov 26 1996 | Compensation awarded counsel |
| Feb 14 1997 | Application for Extension of Time filed By Applt Tobin to request Record correction |
| Feb 18 1997 | Application for Extension of Time filed By Applt Letner to request Record correction |
| Feb 24 1997 | Extension of Time application Granted To 3-27-97 To request Record correction |
| Feb 26 1997 | Extension of Time application Granted To March 27,1997 To request Record correction |
| Mar 12 1997 | Compensation awarded counsel |
| Apr 2 1997 | Order filed re Habeas Funds Request Applt Letner'S. |
| May 14 1997 | Compensation awarded counsel |
| Jun 18 1997 | Compensation awarded counsel |
| Jul 2 1997 | Habeas funds request filed (confidential) By Applt Letner. |
| Jul 16 1997 | Compensation awarded counsel |
| Oct 1 1997 | Compensation awarded counsel |
| Mar 19 1998 | Compensation awarded counsel |
| May 13 1998 | Compensation awarded counsel |
| Aug 26 1998 | Order filed: The petitions for "Writ of mandate or other Appropriate Remedey" filed on 1-27-98, in case numbers S067605 and S067606 are deemed to be applications or motions to correct or settle the record and the clerk of this court is hereby directed to refile said motions in the above-referenced automatic appeal. Good cause appearing therefor and in accordance with the parties' stipulation to prepare a record of all juror questionnaires, the Tulare County Superior Court, once having received and authenticated this prepared record, is hereby directed to cause the voir dire questionnaires, including hardship forms, of the prospective and actual jurors to be copied; to cause personal identifying information, specifically, name, telephone numbers, city or general area of residence, and signature, to be redacted from the questionnaires so copied; to cause the questionnaires so copied and redacted to become part of the Clerk's Transcript; and to cause such transcript to be prepared, delivered and transmitted as specified in Rules 33.6, 35 and 39.51 of the California Rules of Court. That court also is ordered to transmit, under seal, an unredacted copy of this record of the voir dire questionnaires of the prospective and actual jurors to the clerk of this court as specified in Rule 33.6(3) of the California Rules of Court. Good cause not appearing therefor, the request to order further proceedings or settlement of the record with regard to jury instructions, particular Municipal Court and Superior Court hearings, and particular pages of the Clerk's Transcript and the Reporter's Transcript, are hereby denied. |
| Sep 10 1998 | Received: Tobin's "request for Rehearing or Modification" of Order filed 8-26-98. |
| Sep 16 1998 | Compensation awarded counsel |
| Sep 16 1998 | Received: Letner's request to join in Tobin's request for Rehearing or Modification of Order filed 8-26-98. |
| Sep 16 1998 | Letter sent to: Counsel for Tobin, Advising request for Rehearing Etc. Was Being returned Unfiled, as Irregular. |
| Sep 16 1998 | Letter sent to: Counsel for Letner, Advising request to join in Tobin's request for Rehearing Etc. Was Being returned Unfiled, as Irregular. |
| Sep 30 1998 | Order filed re Habeas Funds Request Re: Letnr's request filed 7-2-97. |
| Apr 15 1999 | Compensation awarded counsel |
| Jun 30 1999 | Compensation awarded counsel |
| Jun 30 1999 | Compensation awarded counsel |
| Aug 18 1999 | Compensation awarded counsel |
| Dec 15 1999 | Compensation awarded counsel Atty Bowden |
| Jan 28 2000 | Record on appeal filed C-26 (6,857 Pps.) and R-92 (11,549 Pps.) Including Material Under Seal; Clerk's Transcript includes 3,460 pages of Juror Questionnaires. |
| Jan 28 2000 | Appellant's opening brief letter sent, due: 3/8/2000. |
| Feb 22 2000 | Application for Extension of Time filed By Applt Letner to file Aob. |
| Feb 24 2000 | Extension of Time application Granted To 5/8/2000 To Applt Letner To request Corr. of the Record. |
| Mar 2 2000 | Application for Extension of Time filed By Applt Tobin to file Aob. |
| Mar 6 2000 | Extension of Time application Granted To 5/8/2000 To Applt Tobin To file Aob. |
| Apr 13 2000 | Order filed: The Order filed on 2/24/2000 Is Hereby Amended as Follows: on Applic of Applt Letner, time to file AOB Is extended to and Including 5/8/2000. |
| May 1 2000 | Application for Extension of Time filed By Applt Letner to file Aob. |
| May 1 2000 | Application for Extension of Time filed By Applt Tobin to file Aob. |
| May 4 2000 | Extension of Time application Granted To 7/7/2000 To Applt Letner To file Aob. |
| May 8 2000 | Extension of Time application Granted To 7/7/2000 To Applt Tobin To file Aob. |
| Jun 28 2000 | Compensation awarded counsel Atty Bowden |
| Jul 3 2000 | Application for Extension of Time filed By applt Tobin to file AOB. |
| Jul 6 2000 | Application for Extension of Time filed By applt Letner to file AOB. |
| Jul 11 2000 | Counsel's status report received (confidential) from State P.D. |
| Jul 11 2000 | Application for Extension of Time filed Applt Tobin's declaration of counsel and request for ext. of time to file AOB. |
| Jul 12 2000 | Extension of Time application Granted To 9/5/2000 to applt Tobin to file AOB. |
| Jul 17 2000 | Extension of Time application Granted To 9/5/2000 to applt Letner to file AOB. |
| Aug 15 2000 | Counsel's status report received (confidential) from atty Bowden. |
| Aug 29 2000 | Application for Extension of Time filed By applt Tobin to file the AOB. (4th request) |
| Sep 1 2000 | Extension of Time application Granted to 11/6/2000 to applt Tobin to request corr. of the record. |
| Sep 1 2000 | Filed: Suppl. proof of service (applt Tobin's ext. of time request) |
| Sep 6 2000 | Application for Extension of Time filed By applt Letner to file AOB. (4th request) |
| Sep 7 2000 | Order filed: Due to clerical error, the order filed on 9/1/2000, is amended as follows: Ext. of time is granted to applt Tobin to 11/6/2000 to file AOB. |
| Sep 7 2000 | Extension of Time application Granted To 11/6/2000 to applt Letner to file AOB. |
| Sep 11 2000 | Counsel's status report received (confidential) from State P.D. |
| Oct 12 2000 | Counsel's status report received (confidential) from atty Bowden for Letner. |
| Oct 31 2000 | Application for Extension of Time filed By applt TOBIN to file AOB. (5th request) |
| Nov 3 2000 | Extension of Time application Granted To applt TOBIN to 1/5/2001 to file AOB. |
| Nov 7 2000 | Motion filed Motion to substitute applt counsel for Richard Letner and declaration in support |
| Nov 13 2000 | Counsel's status report received (confidential) from State P.D. (for Tobin). |
| Nov 27 2000 | Application for Extension of Time filed By applt LETNER to file AOB. (5th request) |
| Nov 27 2000 | Filed: Resp's response to mtns. of withdrawal of counsel and substitution of appellate counsel |
| Nov 29 2000 | Extension of Time application Granted To 1/5/2001 to applt LETNER to file AOB |
| Nov 30 2000 | Motion to withdraw as counsel filed By atty J. Thomas Bowden to withdraw from direct appeal and habeas corpus petn. (counsel for applt Letner) |
| Dec 12 2000 | Counsel's status report received (confidential) from atty Bowden. |
| Dec 20 2000 | Order appointing Habeas Corpus Resource Center filed Good cause appearing, the applic. of appointed counsel for permission to withdraw as atty of record for applt Richard Lacy Letner, filed 11/30/2000, is granted. The order appointing J. Thomas Bowden as counsel of record for applt Richard L. Letner, filed 5/10/93, is hereby vacated. R. Clayton Seaman, Jr., is hereby appointed as atty of record for applt Richard L. Letner for the direct appeal in the above automatic appeal now pending in this court. The Habeas Corpus Resource Center is hereby appointed to represent applt Richard L. Letner for habeas corpus/executive clemency proceedings now pending in this court. J. Thomas Bowden is directed to deliver to R. Clayton Seaman, Jr., within 30 days from the filing of this order, his copy of the record on appeal in People v. Letner and Tobin and all transcript notes, applt and habeas corpus "issues" lists, and all other applt and habeas corpus investigation work product. Mr. Bowden also shall deliver to the Habeas Corpus Resource Center, within 30 days from the filing of this order, copies of all such transcript notes, "issues" lists, and applt and habeas corpus work product, and all trial files, reports and related materials that he has obtained from applt's trial counsel, paralegals, experts and investigators. |
| Dec 26 2000 | Application for Extension of Time filed by applt TOBIN to file AOB. (6th request) |
| Jan 2 2001 | Extension of Time application Granted To 3/6/2001 to applt TOBIN to file AOB. |
| Jan 5 2001 | Counsel's status report received (confidential) from State P.D. (for applt Tobin). |
| Jan 9 2001 | Order filed: In light of the substitution of counsel for applt Richard Lacy Letner on December 20, 2000, the January 5, 2001, due date for applt Letner's opening brief has been vacated. |
| Jan 9 2001 | Letter sent to: atty Seaman (new counsel for Letner) advising that at some point in the future, the court will send a letter advising counsel of the new briefing schedule. |
| Jan 12 2001 | Received letter from: Atty J. Thomas Bowden dated 1/8/2001 re record has been sent to applt LETNER'S new counsel. |
| Feb 14 2001 | Compensation awarded counsel Atty Seaman |
| Feb 21 2001 | Counsel's status report received (confidential) from HCRC. |
| Feb 26 2001 | Counsel's status report received (confidential) from atty Seaman (for applt Letner). |
| Feb 27 2001 | Application for Extension of Time filed By applt TOBIN to file AOB. (7th request) |
| Mar 2 2001 | Extension of Time application Granted To 5/7/2001 to Applt TOBIN to request corr. of the record |
| Mar 7 2001 | Extension of Time application Granted To 5/7/2001 as to Applt. Tobin to amend 3/2/2001 order to file AOB. |
| Mar 9 2001 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Apr 23 2001 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Apr 24 2001 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Apr 27 2001 | Application for Extension of Time filed By applt TOBIN to file AOB. (8th request) |
| Apr 30 2001 | Extension of Time application Granted To 7/6/2001 as to applt. TOBIN to file AOB. |
| Apr 30 2001 | Filed: Supplemental proof of service for application for extension of time to file applt. TOBIN'S AOB. |
| May 9 2001 | Letter sent to: attorney Seaman regarding appellant Letner's request for an extension of time within which to file a motion to augment the record. |
| May 9 2001 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jun 13 2001 | Compensation awarded counsel Atty Seaman |
| Jun 21 2001 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Jun 21 2001 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Jun 28 2001 | Application for Extension of Time filed by applt Tobin to file AOB. (9th request) |
| Jul 5 2001 | Extension of Time application Granted to applt Tobin to 9-4-2001 to file AOB. |
| Jul 12 2001 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Aug 21 2001 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Aug 21 2001 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Aug 29 2001 | Application for Extension of Time filed by applt Tobin to file AOB. (10th request) |
| Sep 6 2001 | Extension of Time application Granted To 11/5/2001 to applt. TOBIN to file AOB. |
| Sep 12 2001 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Oct 4 2001 | Compensation awarded counsel Atty Seaman |
| Oct 17 2001 | Compensation awarded counsel Atty Seaman |
| Oct 23 2001 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Oct 24 2001 | Counsel's status report received (confidential) from HCRC for Letner. |
| Oct 29 2001 | Application for Extension of Time filed by applt. TOBIN to file AOB. (11th request) |
| Nov 1 2001 | Extension of Time application Granted To 1/4/2002 to applt. TOBIN to file AOB. |
| Nov 8 2001 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Dec 21 2001 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Dec 24 2001 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Dec 26 2001 | Request for extension of time filed by applt. TOBIN to file AOB. (12th request) |
| Jan 3 2002 | Extension of time granted To 3/5/2002 to applt. TOBIN to file AOB. Sr. Dep. State PD Pease anticipates filing the brief by the second full week of 7/2002. Only three further extensions totaling 130 addl. days are contemplated. |
| Jan 7 2002 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jan 7 2002 | Appellant's opening brief letter sent, due: 3-8-2002. (applt LETNER'S) |
| Feb 15 2002 | Change of Address filed for: Atty. R. Clayton Seaman, Jr. |
| Feb 20 2002 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Feb 20 2002 | Counsel's status report received (confidential) from HCRC. |
| Feb 28 2002 | Request for extension of time filed By applt. TOBIN to file AOB. (13th request) |
| Mar 4 2002 | Extension of time granted To 5/6/2002 to applt. TOBIN to file AOB. Dep. State PD Pease anticipates filing the brief by mid-August 2002. Only two further extensions for 100 additional days are contemplated. |
| Mar 5 2002 | Counsel's status report received (confidential) (supplemental) from atty Seaman for applt Letner. |
| Mar 5 2002 | Request for extension of time filed by applt LETNER to file AOB. |
| Mar 6 2002 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Mar 8 2002 | Filed: Declaration of counsel for applt. LETNER and amended request for extension of time. |
| Mar 8 2002 | Extension of time granted To 5/7/2002 to applt. LETNER 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 inform his or her assisting attorney or entity, if any, and assisting attorney or entity of any separate counsel of record of this schedule, and take all steps necessary to meet this schedule. |
| Mar 13 2002 | Compensation awarded counsel Atty Seaman |
| Apr 17 2002 | Compensation awarded counsel Atty Seaman |
| Apr 23 2002 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Apr 30 2002 | Request for extension of time filed By applt. TOBIN to file AOB. (14th request) |
| May 3 2002 | Request for extension of time filed by applt. LETNER to file AOB. (2nd request) |
| May 7 2002 | Extension of time granted To 7/8/2002 to applt. LETNER to file AOB. The court antiicpates that after that date, only four further extensions totaling 240 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 take all steps necessary to meet this schedule. |
| May 7 2002 | Extension of time granted To 7/8/2002 to applt. TOBIN to file AOB. Sr. Dep. State Public Defender Pease anticipates filing the brief by 9/27/2002. Only two further extensions totaling 81 additional days will be granted. |
| May 9 2002 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jun 12 2002 | Compensation awarded counsel Atty Seaman |
| Jun 20 2002 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Jun 28 2002 | Request for extension of time filed By applt. TOBIN to file AOB. (15th request) |
| Jul 1 2002 | Request for extension of time filed By applt. LETNER to file AOB. (3rd request) |
| Jul 3 2002 | Extension of time granted To 9/6/2002 to applt. LETNER to file AOB. The court anticipates that after that date three further extensions totaling 180 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 take all steps necessary to meet this schedule. |
| Jul 3 2002 | Extension of time granted To 9/6/2002 to applt. TOBIN to file AOB. Dep. State Public Defender Pease anticipates filing that brief by 9/27/2002. One further extension totaling 21 additional days will be granted. |
| Jul 12 2002 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Aug 16 2002 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Aug 19 2002 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Aug 28 2002 | Compensation awarded counsel Atty Seaman |
| Aug 29 2002 | Request for extension of time filed by applt Tobin to file AOB. (16th request) |
| Sep 3 2002 | Request for extension of time filed by appellant LETNER to file appellant's opening brief. (4th request) |
| Sep 3 2002 | Extension of time granted to 10-28-2002 to file applt Tobin's AOB. After that date, no further extension will be granted. Extension granted based upon Deputy State P.D. Alison Pease's representation that she anticipates filing the brief by 10-27-2002. |
| Sep 5 2002 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Sep 6 2002 | Extension of time granted To 11/5/2002 to appellant Letner to file the opening brief. The court anticipates that after that date, only two further extensions totaling 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 necessry to meet it. |
| Sep 19 2002 | Compensation awarded counsel Atty Seaman |
| Oct 21 2002 | Counsel's status report received (confidential) from attorney Seaman for appellant Letner. |
| Oct 25 2002 | Counsel's status report received (confidential) from HCRC for appellant Letner. |
| Oct 28 2002 | Application to file over-length brief filed to file appellant Tobin's opening brief. (372 pp. breif submitted under separate cover) |
| Nov 1 2002 | Order filed Appellant Christopher Allan Tobin's application for leave to file opening brief longer thatn 280 pages is granted. |
| Nov 1 2002 | Appellant's opening brief filed by appellant Tobin. (372 pp.) |
| Nov 4 2002 | Request for extension of time filed by appellant LETNER to file appellant's opening brief. (5th request) |
| Nov 5 2002 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Nov 7 2002 | Extension of time granted To 1/6/2003 to file appellant LETNER'S opening brief. The court anticipates that after that date, only one further extension totaling 60 additionald ays 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 necessry to meet it. |
| Dec 17 2002 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Dec 18 2002 | Compensation awarded counsel Atty Seaman |
| Dec 26 2002 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Dec 31 2002 | Request for extension of time filed by appellant LETNER to file appellant's opening brief. (6th request) |
| Jan 6 2003 | Extension of time granted To 3/7/2003 to file appellant LETNER'S opening brief. The court anticipates that after that date, no further extension 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 or record, of this schedule, and to take all steps necessary to meet it. |
| Jan 7 2003 | Filed: Notice of errata to appellant Tobin's opening brief. |
| Jan 8 2003 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jan 21 2003 | Change of Address filed for: Appellant LETNER'S counsel R. Clayton Seamon, Jr. |
| Jan 24 2003 | Compensation awarded counsel Atty Seaman |
| Feb 13 2003 | Compensation awarded counsel Atty Seaman |
| Feb 14 2003 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Feb 26 2003 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Feb 26 2003 | Request for extension of time filed by appellant LETNER to file appellant's opening brief. (7th request) |
| Feb 28 2003 | Extension of time granted to 5/6/2003 to appellant LETNER to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel R. Clayton Seamon, Jr.'s representation that he anticipates filing that brief by 9/8/2003. |
| Mar 10 2003 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Mar 26 2003 | Filed letter from: Attorney R. Clayton Seaman, Jr., dated 3/22/2003, correcting his telephone number. |
| Apr 4 2003 | Compensation awarded counsel Atty Seaman |
| Apr 21 2003 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Apr 23 2003 | Compensation awarded counsel Atty Seaman |
| Apr 28 2003 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Apr 28 2003 | Request for extension of time filed to file appellant LETNER'S opening brief. (8th request) |
| Apr 30 2003 | Extension of time granted to 7/7/2003 to file appellant LETNER'S opening brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel R. Clayton Seamon's representation that he anticipates filing that brief by 9/6/2003. |
| May 7 2003 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jun 18 2003 | Compensation awarded counsel Atty Seaman $5,762.50 |
| Jun 27 2003 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Jun 30 2003 | Request for extension of time filed to file appellant LETNER'S opening brief. (9th request) |
| Jul 2 2003 | Extension of time granted to 9/8/2003 to appellant LETNER to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel R. Clayton Seaman's representation that he anticipates filing that brief by 9/6/2003. |
| Jul 8 2003 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Aug 13 2003 | Compensation awarded counsel Atty Seaman |
| Aug 14 2003 | Counsel's status report received (confidential) from atty Seaman for applt Letner. |
| Aug 14 2003 | Counsel's status report received (confidential) from State P.D. |
| Aug 25 2003 | Request for extension of time filed by appellant LETNER to file appellant's opening brief. (10th request) |
| Aug 28 2003 | Extension of time granted to 11-7-2003 to file applt LETNER'S AOB. After that date, only one further extension totaling about 60 additional days will be granted. Extension granted based upon counsel R. Clayton Seaman's representation that he anticipates filing the brief by 1-5-2004. |
| Sep 8 2003 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Oct 14 2003 | Compensation awarded counsel Atty Seaman |
| Oct 21 2003 | Counsel's status report received (confidential) from HCRC for appellant Letner. |
| Oct 21 2003 | Counsel's status report received (confidential) from attorney Seaman for appellant Letner. |
| Oct 22 2003 | Compensation awarded counsel Atty Seaman |
| Oct 27 2003 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| Oct 30 2003 | Extension of time granted to 1/5/2004 to file appellant LETNER'S opening brief. Extension is granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by 1/5/2004. After that date, no further extension is contemplated. |
| Nov 5 2003 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Dec 19 2003 | Request for extension of time filed to file appellant's opening brief. (12th request) |
| Dec 24 2003 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Dec 24 2003 | Extension of time granted to 3/8/2004 to file appellant LETNER'S opening brief. After that date, no further extensions will be granted. Extensionis granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by 3/6/2004. |
| Jan 12 2004 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Feb 13 2004 | Application to file over-length brief filed by appellant LETNER to file opening brief. (145,397 word brief submitted under separate cover) |
| Feb 18 2004 | Order filed The motion of appellant Richard Lacy Letner to file an opening brief in excess of 95,200 words is granted. |
| Feb 18 2004 | Appellant's opening brief filed appellant Letner's (145,397 words - 564 pp.) |
| Feb 24 2004 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Mar 9 2004 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Mar 10 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| Mar 17 2004 | Extension of time granted to 5/13/2004 to file respondent's brief. After that date, only five further extensions totaling about 300 additional days are contemplated. Extension is granted based upon Deputy Attorney General Mark A. Johnson's representation that he anticipates filing that brief by 3/2005. |
| Apr 26 2004 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| May 10 2004 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| May 11 2004 | Request for extension of time filed to file respondent's brief. (2nd request) |
| May 14 2004 | Filed: Supplemental declaration in support of application for extension of time to file respondent's brief. |
| May 21 2004 | Extension of time granted to 7-12-2004 to file respondent's brief. After that date, only four further extensions totaling about 240 additional days are contemplated. Extension granted based upon Deputy AG Mark A. Johnson's representation that he anticipates filing the brief by March 2005. |
| Jun 28 2004 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Jul 7 2004 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jul 21 2004 | Received: Application for extension of time to file respondent's brief. (3rd request) |
| Jul 23 2004 | Application for relief from default filed by respondent for failure to file respondent's brief or a timely motion for extension of time. |
| Jul 30 2004 | Extension of time granted Respondent's application for relief from default for failure to file respondent's brief or a timely motion for extension of time is granted. Good cause appearing, and based upon Deputy AG Mark A. Johnson's representation that he anticipates filing the respondent's brief by March 2005, counsel's request for an extension of time in which to file that brief is granted to 9-10-2004. After that date, only three further extensions totaling about 180 additional days will be granted. |
| Jul 30 2004 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Aug 27 2004 | Counsel's status report received (confidential) from HCRC for Letner. |
| Sep 8 2004 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Sep 21 2004 | Received: Respondent's application for extension of time received in Sacramento office 9/17/2004. DAG Johnson to submit application for relief from default for failure to file timely motion. |
| Sep 23 2004 | Filed: respondent's application for relief from default. |
| Sep 27 2004 | Extension of time granted Respondent's application for relief from default for failure to file respondent's brief or a timely motion for extension of time is granted. Good cause appearing, and based upon Deputy AG Mark A. Johnson's representation that he anticipates filing the respondent's brief by March 2005, counsel's request for an extension of time in which to file that brief is granted to 11-9-2004. After that date, only two further extensions totaling about 120 additional days will be granted. |
| Sep 27 2004 | Request for extension of time filed to file respondent's brief. (4th request) |
| Nov 4 2004 | Counsel's status report received (confidential) from State P.D. for appellant Tobin. |
| Nov 8 2004 | Request for extension of time filed to file respondent's brief. (5th request) |
| Nov 16 2004 | Extension of time granted to 1/10/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Mark Johnson's representation that he anticipates filing that brief by 3/2005. |
| Nov 18 2004 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Jan 5 2005 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jan 7 2005 | Request for extension of time filed to file respondent's brief. (6th request) |
| Jan 13 2005 | Extension of time granted to 3/9/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Mark A. Johnson's representation that he anticipates filing that brief by 5/9/2005. |
| Jan 20 2005 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Mar 7 2005 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Mar 8 2005 | Request for extension of time filed to file respondent's brief. (7th request) |
| Mar 14 2005 | Extension of time granted to 5/9/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Mark A. Johnson's representation that he anticipates filing that brief by 5/9/2005. After that date, no further extension is contemplated. |
| Mar 24 2005 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| May 4 2005 | Received: Letter from respondent, dated 4/28/2005, to appellants' counsel. |
| May 4 2005 | Request for judicial notice filed (AA) respondent's. |
| May 4 2005 | Respondent's brief filed (53223 words; 184 pp.) |
| May 10 2005 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| May 13 2005 | Request for extension of time filed by appellant LETNER to file reply brief. (1st request) |
| May 16 2005 | Extension of time granted to applt Letner to 7-25-2005 to file reply brief. |
| May 18 2005 | Request for extension of time filed by appellant Tobin to file AOB. (1st request) |
| May 20 2005 | Extension of time granted to 7/25/2005 to file appellant TOBIN'S reply brief. The court anticipates that after that date, only four further extensions totaling about 210 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| May 23 2005 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Jul 11 2005 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jul 18 2005 | Request for extension of time filed by appellant LETNER to file reply brief. (2nd request) |
| Jul 19 2005 | Request for extension of time filed by appellant TOBIN to file reply brief. (2nd request) |
| Jul 22 2005 | Extension of time granted to 9/23/2005 to file appellant LETNER'S reply brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing tht brief by 2/26/2006. |
| Jul 22 2005 | Extension of time granted to 9/23/2005 to file appellant TOBIN'S reply brief. The court anticipates that after that date, only three further extensions totaling about 150 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| Jul 25 2005 | Counsel's status report received (confidential) from HCRC for Letner. |
| Aug 1 2005 | Motion filed (AA) Attorney Seaman's "Application to Suspend Counsel Appointment for One Year or Alternative Request for One Year Continuance on All Pending Matters in the Letner Case." |
| Aug 5 2005 | Filed: Addendum to atty Seaman's application to suspend counsel appointment for one year. |
| Aug 10 2005 | Motion denied The "Application to suspend counsel appointment for one year or alternative request for one year continuance on all pending matters," filed August 1, 2005, is denied. Werdegar, J., was absent and did not participate. |
| Aug 15 2005 | Motion filed (AA) Appellant Tobin's "motion to deny respondent's request that the court take judical notice of people's brief on the merits in People v. Brendlin (S123133)." |
| Aug 24 2005 | Compensation awarded counsel Atty Seaman |
| Sep 1 2005 | Filed: supplemental proof of service to appellant Tobin's motion to deny respondent's request for judicial notice, filed on 8-15-2005. |
| Sep 7 2005 | Compensation awarded counsel Atty Seaman |
| Sep 15 2005 | Request for extension of time filed by appellant LETNER to file reply brief. (3rd request) |
| Sep 16 2005 | Request for extension of time filed by appellant Tobin to file reply brief. (3rd request) |
| Sep 20 2005 | Extension of time granted to 11-22-2005 to file appellant Tobin's reply brief. After that date, only three further extensions totaling about 135 additional days will be granted. Extension granted based upon Senior Deputy SPD Alison Pease's representation that she anticipates filing the brief by 4-3-2006. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it. |
| Sep 20 2005 | Extension of time granted to 11/22/2005 to file appellant Richard Lacy Letner's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by 2/26/2006. |
| Sep 21 2005 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Nov 8 2005 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Nov 8 2005 | Request for extension of time filed to file appellant LETNER's reply brief. (4th request) |
| Nov 14 2005 | Extension of time granted to 1/26/2006 to file appellant Richard Lacy Letner's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by April 26, 2006. |
| Nov 17 2005 | Request for extension of time filed by appellant TOBIN to file reply brief. (4th request) |
| Nov 28 2005 | Extension of time granted to 1/23/06 to file TOBIN's reply brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Alison Pease's representation that she anticipates filing that brief by 4/3/2006. |
| Dec 2 2005 | Counsel's status report received (confidential) from HCRC for Letner. |
| Jan 11 2006 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jan 18 2006 | Request for extension of time filed by appellant TOBIN to file reply brief. (5th request) |
| Jan 20 2006 | Counsel's status report received (confidential) from HCRC for Letner. |
| Jan 20 2006 | Extension of time granted to 3/27/2006 to file appellant TOBIN's reply brief. After that date, only one further extension totaling about 35 additional days will be granted. Extension is granted based upon Senior Deputy State based upon Senior Deputy State Public Defender Alison Pease's representation that she anticipates filing that brief by 5/1/2006. |
| Jan 30 2006 | Application for relief from default filed by appellant LETNER for failure to file reply brief or a timely motion for extension of time. |
| Feb 1 2006 | Extension of time granted Appellant's application for relief from default for failure to file appellant Richard Lacy Letner's reply brief or a timely motion for extension of time is granted. Good cause appearing, and based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing appellant Richard Lacy Letner's reply brief by 5/26/2006, counsel's request for an an extension of time in which to file that brief is granted to 3/27/2006. After that date, only one further extension totaling about 60 additional days is contemplated. |
| Feb 1 2006 | Request for extension of time filed by appellant LETNER to file reply brief. (5th request) |
| Feb 1 2006 | Request for judicial notice denied Respondent's request for judicial notice, filed on May 4, 2005, is denied without prejudice to the filing of a supplemental respondent's brief raising the arguments presented in the respondent's brief in People v. Brendlin, S0123123. Appellant Tobin's motion to deny respondent's request for judicial notice, filed on August 15, 2005, is denied as moot. Chin, J., was absent and did not participate. |
| Mar 8 2006 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Mar 13 2006 | Request for extension of time filed to file appellant LETNER's reply brief. (6th request) |
| Mar 16 2006 | Extension of time granted to May 26, 2006 to file appellant LETNER's reply brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by June 26, 2006. |
| Mar 20 2006 | Extension of time granted to file appellant TOBIN's reply brief. (6th request) |
| Mar 23 2006 | Extension of time granted to May 26, 2006 to file appellant TOBIN's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Alison Pease's representation that she anticipates filing that brief by June 26, 2006. |
| May 8 2006 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| May 10 2006 | Compensation awarded counsel Atty Seaman |
| May 22 2006 | Request for extension of time filed to file appellant LETNER's reply brief. (7th request) |
| May 22 2006 | Request for extension of time filed to file appellant TOBIN's reply brief. (7th request) |
| May 24 2006 | Compensation awarded counsel Atty Seaman |
| May 24 2006 | Extension of time granted to July 26, 2006 to file appellant LETNER's reply brief. Extension is granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by July 26, 2006. After that date, no further extension is contemplated. |
| May 24 2006 | Extension of time granted to July 26, 2006 to file appellant TOBIN's reply brief. Extension is granted based upon Senior Deputy State Public Defender Alison Pease's representation that she anticipates filing that brief by July 26, 2006. After that date, no further extension will be granted. |
| May 26 2006 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Jul 6 2006 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jul 18 2006 | Request for extension of time filed to file appellant TOBIN's reply brief. (8th request) |
| Jul 21 2006 | Request for extension of time filed by appellant LETNER to file reply brief. (8th request) |
| Jul 24 2006 | Counsel's status report received (confidential) for Letner from HCRC. |
| Jul 24 2006 | Extension of time granted to September 25, 2006 to file appellant TOBIN's reply brief. Extension is granted based upon Senior Deputy State Public Defender Alison Pease's representation that she anticipates filing that brief by September 25, 2006. After that date, no further extension is contemplated. |
| Jul 26 2006 | Extension of time granted to September 26, 2006 to file appellant LETNER's reply brief. Extension is granted based upon counsel R. Clayton Seaman, Jr.'s representation that he anticipates filing that brief by September 26, 2006. After that date, no further extension is contemplated. |
| Sep 7 2006 | Counsel's status report received (confidential) for Tobin from State P.D. |
| Sep 25 2006 | Appellant's reply brief filed appellant TOBIN's. (33,916 words; 110 pp.) |
| Sep 25 2006 | Application to file over-length brief filed to file appellant LETNER's reply brief. (48,145 word brief submitted under separate cover; 180 pp.) |
| Sep 25 2006 | Counsel's status report received (confidential) for Letner from HCRC. |
| Sep 26 2006 | Order filed "Appellant Letner's motion to File a Reply Brief in excess of 47,600 words" is granted. |
| Sep 26 2006 | Appellant's reply brief filed appellant LETNER's. (48,145 words; 182 pp.) |
| Oct 18 2006 | Compensation awarded counsel Atty Seaman |
| Nov 6 2006 | Counsel's status report received (confidential) for Tobin from State P.D. |
| Nov 21 2006 | Counsel's status report received (confidential) from atty Sternberg for applt Letner. |
| Jan 4 2007 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Jan 29 2007 | Counsel's status report received (confidential) from HCRC for applt Letner. |
| Mar 2 2007 | Counsel's status report received (confidential) from State P.D. for applt Tobin. |
| Mar 23 2007 | Counsel's status report received (confidential) from HCRC for Letner. |
| Mar 26 2007 | Related habeas corpus petition filed (concurrent) for Richard Letner, case no. S151222 |
| Mar 26 2007 | Related habeas corpus petition filed (concurrent) for Christopher Tobin, case no. S151243. |
| Jul 16 2008 | Compensation awarded counsel Atty Seaman |
| Aug 26 2008 | Letter sent to: counsel regarding missing pages in vol. 53 of reporter's transcript. |
| Sep 4 2008 | Filed: letter from Deputy SPD Alison Pease, dated September 3, 2008, with copies of missing pages from reporter's transcript. |
| Sep 11 2008 | Filed: letter from attorney Seaman, dated September 8, 2008, with copies of missing pages from reporter's transcript. |
| Sep 15 2008 | Filed: letter from respondent, dated August 27, 2008, with copies of missing pages from reporter's transcript. |
| Sep 15 2008 | Filed: by the State Public Defender, (amended) declaration of service by mail, for letter of September 3, 2008 and selected transcript pages to the Supreme Court. |
| Dec 22 2008 | Letter sent to: counsel regarding missing clerk's transcript volume, and requesting that counsel provide the court with a copy from the record in their possession. The court encourages the parties, if possible, to agree on and submit to the court one copy of Volume II of the clerk's transcript, pages 257 through 557. |
| Dec 29 2008 | Received: letter from Deputy State Public Defender Alison Pease, dated December 23, 2008, with a copy of volume II of the clerk's transcript. |
| Jan 7 2009 | Received: letter from Sr. Deputy SPD Alison Pease, dated January 6, 2009, regarding Volume II of the clerk's transcript. |
| Jan 26 2009 | Letter sent to: counsel regarding missing reporter's transcript pages, and asking them to provide the court with a copy from the record in their possession. The court encourages the parties, if possible, to agree on and submit to the court one complete set of the pages. |
| Feb 13 2009 | Filed: stipulation by parties that the Volume II of the clerk's transcript sent to this court on December 23, 2008, is a true and correct copy of that volume. |
| Feb 13 2009 | Filed: copy of Volume II of the clerk's transcript on appeal. |
| Feb 17 2009 | Letter sent to: counsel advising that the copy of Volume II of the clerk's transcript was filed on February 13, 2009. |
| Apr 28 2009 | Filed: stipulation regarding missing reporter's transcript pages. |
| Dec 23 2009 | Compensation awarded counsel Atty Seaman |
| Jan 28 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 5, 2010, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Mar 24 2010 | Compensation awarded counsel Atty Seaman |
| Mar 30 2010 | Case ordered on calendar to be argued on Monday, May 3, 2010, at 1:30 p.m., in San Francisco |
| Apr 8 2010 | Filed: Letter from Deputy State Public Defender Alison Pease, counsel for appellant Tobin, requesting 40 minutes of argument time for appellant Tobin. |
| Apr 12 2010 | Received: appearance sheet from Deputy Attorney General Mark Johnson, indicating 45 minutes for oral argument for respondent. |
| Apr 14 2010 | Compensation awarded counsel Atty Seaman |
| Apr 19 2010 | Filed: appellant Tobin's focus issues letter, dated April 15, 2010. |
| Apr 19 2010 | Filed: appellant Letner's focus issues letter, dated April 15, 2010. |
| Apr 19 2010 | Application filed by appellant Letner, "Application to File Supplemental Letter Brief and Letter Brief" |
| Apr 20 2010 | Order filed The application of appellant Richard Lacy Letner for permission to file a supplemental letter brief is granted. Any response must be served and filed on or before April 30, 2010. Any reply must be served and filed on or before May 10, 2010. |
| Apr 20 2010 | Supplemental brief filed Appellant: Letner, Richard LacyAttorney: R. Clayton Seaman appellant's supplemental letter brief (2,483 words; 11 pp.) |
| Apr 20 2010 | Order filed Appellant Christopher Allan Tobin's request for 40 minutes for oral argument is granted. |
| Apr 28 2010 | Letter sent to: each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument." |
| Apr 28 2010 | Stipulation filed Stipulation by counsel Alison Pease, that appellant Tobin has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Apr 29 2010 | Stipulation filed Stipulation by counsel R. Clayton Seaman, Jr., that appellant Letner has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Apr 29 2010 | Stipulation filed Stipulation by counsel Mark Johnson, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 3 2010 | Cause argued and submitted |
| Jul 28 2010 | Notice of forthcoming opinion posted To be filed Thursday, July 29, 2010 @ 10 a.m. |
| Jul 28 2010 | Compensation awarded counsel Atty Seaman |
| Briefs | |
| Nov 1 2002 | Appellant's opening brief filed |
| Feb 18 2004 | Appellant's opening brief filed |
| May 4 2005 | Respondent's brief filed |
| Sep 25 2006 | Appellant's reply brief filed |
| Sep 26 2006 | Appellant's reply brief filed |
| Brief Downloads | |
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