Supreme Court of California Justia
Docket No. S036105

People v. Prince

Filed 4/30/07



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S036105

v.

CLEOPHUS PRINCE, JR.,

San

Diego

County

Defendant and Appellant.

Super. Ct. No. CR130018



Defendant Cleophus Prince, Jr., appeals from a judgment of the San Diego

County Superior Court imposing a sentence of death following his conviction of

six counts of first degree murder (Pen. Code, § 187, subd. (a)),1 five counts of

burglary (§ 459), and one count of rape. (§ 261.) The jury found true one rape-

murder special-circumstance allegation and one multiple-murder special-

circumstance allegation. (§ 190.2, subd. (a)(3) & (17)(C).) The jury also found

true the allegations that defendant used a knife in committing each of the murders.

(§ 12022, subd. (b).) Defendant also was convicted of six attempted burglaries

(§§ 459, 664) and nine completed burglaries of homes belonging to persons other

than the murder victims (§ 459), and perjury. (§ 119.) The jury fixed the

punishment at death. The court imposed a judgment of death and also sentenced


1

All further statutory references are to the Penal Code unless otherwise

indicated.

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defendant for the noncapital convictions. Defendant’s appeal is automatic.

(§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS



A. Guilt Phase Evidence



1. The prosecution’s case

We first provide an overview of the evidence. Defendant and his girlfriend

Charla Lewis moved into an apartment in the Buena Vista Gardens apartment

complex in the Clairemont area of San Diego in December 1989. Defendant was

employed by Expo Builder Supplies beginning on January 10, 1990, usually

working from 3:00 p.m. until midnight. Later in the year he was employed at

Nacomm Communications.

Tiffany Schultz was murdered on January 12, 1990; Janene Weinhold was

murdered on February 16, 1990, and Holly Tarr was murdered on April 3, 1990.

All three victims were young, attractive White women who resided in or near the

Buena Vista Gardens apartment complex. A resident of that apartment complex

testified that in the interval between the Weinhold and Tarr murders, a man she

identified as defendant followed her home and stared at her.

The murders were similar to each other in many respects; circumstantial

evidence tied defendant to the crimes; DNA and other evidence connected

defendant to the Weinhold murder, and Tarr’s opal ring was found in Charla

Lewis’s possession.

In late April 1990, defendant twice attempted to enter apartments at the

Torrey Pines Village apartment complex belonging to two young women. In early

May 1990 he followed a woman from the beach to the La Jolla Shores beach

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house she was visiting and tried to force his way into the house, but was foiled

when the woman pushed him over and fled.

On May 20, 1990, Elissa Keller was murdered in her apartment on Trojan

Avenue in San Diego. The apartment was close to defendant’s new residence at

the Top of the Hill apartment complex. The murder was similar to the earlier

murders; certain circumstantial evidence implicated defendant; he was seen

wearing Keller’s ring, and various incriminating statements also tied him to the

crime.

There was evidence that on August 2, 1990, defendant committed another

burglary of an apartment located in the Top of the Hill apartment complex. The

apartment was occupied by three young women. There was evidence establishing

that defendant, at a local Thomas Cook Foreign Exchange office, exchanged the

lire that were stolen in this burglary.

On September 13, 1990, Pamela Clark and her daughter Amber Clark were

murdered in their home in the University City area of San Diego. The murder was

similar to the other murders; defendant made incriminating statements, and he was

seen wearing Pamela’s wedding ring.

A series of burglaries and attempted burglaries in various areas of San

Diego was committed between October 1990 and February 1991. Incriminating

statements, possession of proceeds of the burglaries, positive identifications of

defendant and his automobile, and other evidence tied defendant to the crimes,

many of which involved his following young women from a Family Fitness Center

on Miramar Drive in San Diego to the women’s homes and attempting to enter the

women’s residences while the occupant showered or prepared to shower.

The defense was mistaken identification and alibi.

A more detailed account of the evidence adduced at trial follows.

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Count 1 — the murder of Tiffany Schultz

On January 12, 1990, Tiffany Schultz, a White woman who was 21 years of

age, was seen sunbathing in the doorway of her second floor Canyon Ridge

apartment about 10:00 a.m. The Canyon Ridge complex was located across the

street from the Buena Vista Gardens apartment complex and shared a recreation

center, which Schultz’s apartment overlooked. Schultz spoke to a friend on the

telephone from 10:00 to 10:30 a.m., but telephone calls placed to her near noon or

12:30 p.m. went unanswered.

Dorothy Curtiss, the manager of the Canyon Ridge apartment complex, was

relatively certain that a stranger who approached her in front of her office at

approximately 10:30 a.m. on January 12, 1990, was defendant. The stranger

requested a hanger so he could unlock his automobile, indicating that the vehicle

was parked on the street. When the manager supplied the hanger, the stranger to

her surprise and concern walked toward the apartments rather than the street.

Curtiss testified her office abutted the stairs that led to Schultz’s apartment, and

she had seen Schultz sunbathing, clad only in her bikini, within approximately half

an hour of encountering defendant.

Persons occupying the apartment located below Schultz’s reported to the

police that when they arrived at the apartment between 11:00 a.m. and 1:00 p.m.

on January 12, 1990, they heard loud sounds coming from Schultz’s apartment.

The noise sounded as if someone was being beaten. They also heard running

water.

Schultz’s roommate discovered her body in one of the bedrooms in the

apartment. It appeared there had been a struggle. Schultz was clad only in bikini

briefs. She lay on her back, her left leg extended under the bed, while her right leg

lay at a 60- to 70-degree angle. One leg was smeared with blood, and there was

blood on her crotch. There were at least 47 stab wounds, with a cluster of 20 stab

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wounds in the right breast and chest area. The wounds were deep, some extending

through to the back. There was another cluster of stab wounds in the left area of

the chest, also deep, some passing all the way through the body. There were

wounds on the neck and upper-right thigh as well as defensive wounds. Her

mouth was bruised, and her face had suffered blunt trauma. She would have been

motionless when the fatal knife wounds were inflicted. The bathtub was wet, and

there was a damp towel nearby. There was no evidence of a sexual assault.

There also was no sign of forced entry. The interior and exterior doorknobs

of the door leading to the room where Schultz’s body was discovered bore bloody

marks in a honeycomb or cross-hatch pattern. It appeared that the assailant had

departed by way of the patio, dropping from the second floor balcony to the

ground.

Schultz’s live-in boyfriend was arrested for the murder but was released

after a few days.

Counts 2, 3, and 4 — the murder and rape of Janene Weinhold and the

burglary of her residence

Janene Weinhold, a White woman who was 21 years of age, shared a

second-story apartment in the Buena Vista Gardens apartment complex with a

roommate. Both were students at the University of California, San Diego.

Weinhold drove her roommate to work at 9:00 a.m. on February 16, 1990, telling

her she planned to return home to do laundry and homework. Weinhold was to

return to pick up her roommate at 2:00 p.m., but failed to do so, an

uncharacteristic omission.

Marsha Nelson occupied an apartment below Weinhold’s. Nelson testified

that between 11:30 a.m. and noon on February 16, 1990, she observed defendant

sitting on the stairs leading to Weinhold’s second-story apartment. He appeared

sad. She observed him over a period of 15 minutes. Subsequently she heard her

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dog barking, then heard loud sounds coming from Weinhold’s apartment. When

Nelson was summoned to a live lineup in June 1991, she identified defendant on a

card but then crossed out this identification, explaining to the police that the

incident had occurred too long ago for her to make an identification. At trial, she

testified that she crossed out her identification because she did not want to become

involved.

On February 16, 1990, telephone calls made to Weinhold’s apartment from

2:30 p.m. on went unanswered. Weinhold’s body was discovered when her

roommate returned home that evening at approximately 8:00 p.m. The front door

was locked, and there was no sign of a forced entry.

A knife belonging to the occupants of the apartment was found in the sink,

displaying a bent tip and blood. Weinhold’s body was discovered in her bedroom,

one leg up against the bedroom door and the other leg spread. A blouse, trousers,

and underpants were nearby, the trousers and underwear inside out as if just taken

off. The body was clad only in a bra. There were at least 22 stab wounds, all in

the upper chest area, with eight clustered in a pattern in the upper-right breast.

Most were deep, and some had penetrated the breastbone and ribs, a circumstance

that might cause a knife to bend. The wounds had been administered with great

force. Some of the wounds were defensive in nature. There was a bloodstain in a

honeycomb or cross-hatch pattern on a doorjamb.

Seminal fluid in Weinhold’s vagina was tested, and a genotype match with

defendant’s blood sample was established to the degree that an expert testified that

the match would occur in approximately 7 to 8 percent of the general population

(and a lower percentage of the White population). Seminal fluid also was

discovered on a jogging suit, a bedspread, and the carpet next to the body.

Enzyme testing of the seminal fluid found on the carpet established that defendant,

who was African-American, was within the 19 to 21 percent of that population

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that could have deposited the fluid. Further deoxyribonucleic acid (DNA) testing

of the jogging suit and bedspread disclosed a match with defendant’s blood

sample, a match that would occur in approximately one in 120,000 persons.

A number of statements also linked defendant to the murder of Weinhold.

In April 1990, defendant told his friends Robin and Tony Romo that he had

gone on a date with a woman, and that when they arrived home he forced himself

on her. Defendant related that when he was finished, the victim was weeping, and

that he went back and “did her” again.

David Holden was a coworker of defendant’s at Nacomm Communications,

a cable company, beginning in the autumn of 1990. Early in 1991, defendant

mentioned a girl named Janene. Defendant said he worked out with her at an

athletic club and went to her home for sexual encounters on one or two occasions.

Holden also testified defendant commented that the police never would capture the

Clairemont murderer. (This was the description commonly used for the

perpetrator of the charged murders.)

Raymond Huntley, a jailhouse informant with many prior convictions for

serious crimes (and an escape charge pending), reported several conversations

with defendant. On one occasion defendant allegedly said he “didn’t have nothing

for no White bitches.” In another, defendant noted that in his job with the cable

company, if he found a woman he wanted to “hit,” he could check the name on the

mailbox to determine whether she lived alone. The witness assumed that “hit”

meant burglarize. The two men discussed assaulting women (Huntley had been

convicted of such crimes). Defendant reported that he enjoyed stalking women

and once he selected one, he enjoyed playing with his victims, letting them believe

they would escape, and then he would “do them.” Defendant also reported that he

enjoyed watching blood drip from a knife onto the victim’s pubic area.

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The Cotalessa-Ritchie incident

Anna Cotalessa-Ritchie, a young White woman, testified that on March 25,

1990, during the noon hour, she walked from her second-story apartment in the

Buena Vista Gardens apartment complex to a local store. She observed defendant

at a bus stop on her way to the store, but he was not there when she returned. As

she neared her apartment building, she saw defendant coming toward her. He

stared at her as they crossed paths. She was at the door of her apartment, trying to

insert the key into the lock, when she observed defendant at the bottom of the

stairs. Again, he was staring at her. He bent as if to tie his shoes, although they

were tied already. She entered her apartment and locked the door. After

defendant’s arrest, Cotalessa-Ritchie positively identified defendant at a video

lineup as the person who had followed her. She also identified him at trial. Prior

to her participation in the lineup, she once had seen defendant’s image briefly on

television.

Counts 5 and 6 — the murder of Holly Tarr and the burglary of her

residence

Holly Tarr, who was 18 years of age and White, was a resident of

Michigan. In April 1990, she visited her brother Richard at the Buena Vista

Gardens apartment complex during her high school spring break. Her friend,

Tammy Ho, accompanied her. On April 3 1990, the two girls played tennis and

then entered the pool area of the complex at 11 a.m. Ho observed a well-built

African-American man working out in the adjacent athletic area. Approximately

five or 10 minutes before noon, Tarr returned to the apartment alone, intending to

shower. Ten minutes later, Ho approached the apartment and thought she heard a

scream. To Ho’s surprise, the door of the apartment was locked. Ho heard the

telephone ring, but no one answered it. She knocked repeatedly and called out

Tarr’s name. A neighbor had called the apartment complex maintenance crew,

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and approximately 10 minutes later a maintenance worker, Richard Williams,

arrived. The door was chained shut, and he had to break the chain to enter. Ho

ran into the apartment and saw a man emerge from a bedroom and run toward her,

his face covered with a white cloth. He held a long knife up to his ear. The man

wore a red T-shirt and had dark skin. Ho fell onto a couch as he ran past her

through the front door. Ho then discovered Tarr gasping for breath. Tarr’s opal

ring was gone.

The log for the day at the apartment complex weight room showed, in order

of arrival, Richard Tarr, Holly Tarr, Tammy Ho, and C. Prince.

Between noon and 1:00 p.m. on April 3, 1990, a bystander heard screaming

coming from the direction of the Tarr apartment. When the witness looked in the

direction of the scream, he saw an African-American man wearing a red shirt and

black pants and running full speed across the alley, not far from the Tarr

apartment. The witness observed the man disappear among the buildings. While

in pursuit, the witness encountered another maintenance worker, Juan Rivera

Rojas, who described the direction of the man’s flight. Rojas testified at trial that

he saw an African-American man run by who was approximately 28 to 30 years of

age, about five feet six inches tall, and wearing a red shirt and black pants. Rojas

picked out defendant in a video lineup conducted in July 1991, but testified at trial

that he had not seen the man’s face and could not identify him.

Tarr’s body lay on the floor of one of the bedrooms in the apartment, her

legs spread approximately 45 degrees. She wore a bra and underpants, and a towel

was on her chest. There was no sign of forced entry (other than the chain broken

by the maintenance worker). Blood was on the stairwell leading to the apartment

and in numerous places in the apartment. A shoe print at the threshold matched

the size and design of defendant’s Nike Air Jordan athletic shoes. An impression

of a knife, in blood, was observed on the apartment doorjamb. A bloody knife and

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a T-shirt were found near the sidewalk and the parking area; the blood was

identified as Tarr’s, and the knife was from the Tarr apartment. Tarr died of a

single stab wound, seven inches deep, that penetrated her heart. There was blood

on her bra and on her underwear in the pubic area.

On the day of the Tarr murder, defendant’s acquaintances, Robert Romo

and Timothy Buckingham, observed defendant, wearing a red T-shirt, driving his

automobile in an alley within the Buena Vista Gardens apartment complex

between noon and 1:00 p.m. Defendant wore something white on his head. When

Romo entered his own apartment in the Buena Vista Gardens complex, he learned

from his wife, Robin Romo, that another murder had occurred. Robert shortly

thereafter observed defendant drive by again. Robert had seen defendant wear a

red T-shirt prior to, but never subsequent to, the Tarr murder.

When interviewed the day after the murder, defendant informed the police

that he had been at the pool the prior day until noon, when he returned to his

apartment and remained there until his departure for work at 1:50 p.m. He

declined the police’s request to go to the station for fingerprinting.

A few days after the Tarr murder, Robin Romo mentioned to defendant that

there had been another murder. Defendant responded: “Yes I remember. I was at

the pool. I saw her leaving.”

When the police searched the home of defendant’s girlfriend, Charla Lewis,

they discovered Tarr’s opal ring. The ring was one of 63 that had been

manufactured, none of them having been distributed for sale further west than

Michigan or Wisconsin. Lewis testified that defendant gave her the ring in

December 1990.

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Counts 7 and 8 — the attempted burglary of the residence shared by

Stephanie Squires and Sarah Canfield

On April 25, 1990, Stephanie Squires observed defendant follow her to the

pool in her apartment complex, the Torrey Pines Village apartments. She

recognized him, perhaps from her recent prior residence at the Buena Vista

Gardens apartment complex. Squires left the pool area around noon and returned

to her apartment to shower. A neighbor witnessed an African-American man walk

up the stairs toward Squires’s apartment. The neighbor telephoned the apartment

manager, Jean Smith. Smith testified that the neighbor told her that she saw the

man climb the stairs and try the door handle. At trial, the neighbor testified that

she merely had seen the man ascend the stairs and then sit down. She testified she

did not wish to be involved.

On April 28, 1990, Squires’s roommate, Sarah Canfield, attired in her

bathing suit, was in the apartment they shared. Between 3 and 3:30 in the

afternoon, she heard a knock at the door and could see the door handle moving.

She looked out, saw defendant standing at the door, and telephoned the apartment

manager and the police. At the time of the video lineup in July 1991, she was

almost positive the man was defendant, and at trial she was certain of her

identification.

At approximately 3:30 p.m. on the same day, April 28, 1990, Jean Smith

saw an unfamiliar African-American man walk past her office. She asked her

husband Glen to follow the man. Glen Smith testified he observed an African-

American man driving an old, dirty or gray, two-door Chevrolet or Oldsmobile

exit from the apartment complex parking lot. The vehicle was noisy, as if it had a

defective muffler. A few days later, Glen saw the same vehicle driven by the

same man in the same parking lot. Glen relayed the license number to the police,

who found that the vehicle was registered to defendant. Glen identified a

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photograph of defendant’s automobile as the vehicle he had seen on both

occasions.

Count 9 — the burglary of Leslie Hughes-Webb’s temporary residence

On May 2, 1990, between 1:30 p.m. and approximately 2:50 p.m., Leslie

Hughes-Webb, a young White woman, was sunbathing on the beach near the La

Jolla Shores beach house she was visiting. After she walked back to the house,

she climbed the stairs to the back door and found defendant standing in front of

the door. She asked his business, and replying that he had rented the home in the

past, he walked away. Hughes-Webb entered the house and saw through the glass

door that defendant was returning. She attempted to secure the door, but

defendant forced it open. He attacked Hughes-Webb, covering her mouth and

subsequently grabbing her face and shoulders, and they struggled until she was

able to push him over into a nightstand. She fled screaming, and he followed her

outside and down two steps, then turned, and ran out the gate. He was due at work

at 3:00 p.m., but arrived 15 minutes late that day. At a lineup and at trial, Hughes-

Webb identified defendant as her attacker.

Counts 10 and 11 — the murder of Elissa Keller and the burglary of her

residence

Elissa Keller, 38 years of age and White, lived with her 18-year old

daughter. Her home was close to defendant’s new residence at the Top of the Hill

apartment complex, where he had moved in early May 1990. Late in the evening

of May 20, 1990, Keller spoke on the telephone to her daughter, who was away for

the weekend. On May 21, 1990, Keller failed to appear at her place of

employment at 9:00 a.m., which was unusual. She did not appear at work later

that day or answer the telephone. Keller’s daughter arrived at their home at

approximately 11:30 p.m. on May 21, 1990. The deadbolt on the front door was

not locked, which was unusual, and the chain was off the hook. She went to her

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bedroom, where she discovered her mother’s body lying on the floor with a

blanket covering her torso.

Keller lay on the carpet with her legs out and slightly separated. She wore

only a tank top, and her bloody underwear lay inside out and close to the body.

There were nine tightly clustered, deep stab wounds in her chest, along with some

defensive wounds. There was blood smeared on her arms and legs. It appeared

that she may have been punched in the face and choked. According to the

physician who examined her body at approximately 3:00 a.m. on May 22, 1990,

Keller had been dead between six and 12 hours, and possibly longer.

The perpetrator’s point of entry apparently was a partially open window.

Shoe prints on the sill and on a nearby stereo could have been made by

defendant’s Nike Air Jordan athletic shoes, and were similar to those found at the

scene of Tarr’s murder. A criminalist testified that gloves such as the ones used

by defendant at his place of employment between January and August 1990, and

found in the trunk of his vehicle, left the bloody marks found on the bathroom

counter. The gloves bore a distinctive honeycomb or cross-hatch pattern. A pair

of such gloves also was discovered in the closet of defendant’s girlfriend, Charla

Lewis.

Keller’s gold nugget ring was missing, and defendant subsequently was

seen wearing it. The ring later was stolen from defendant but ultimately was

traced to him during the murder investigation.

Michael Bari was acquainted with defendant when both men resided at the

Top of the Hill apartments. Defendant possessed a large quantity of jewelry and

told Bari he had obtained it “off the girls he had slept with. They would not be

needing them anymore.” Defendant demonstrated for Bari how to break into an

apartment by using a Blockbuster video store card, remarking that “as long as it

doesn’t have a deadbolt, I can get into the apartment.” Another occupant of the

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Top of the Hill apartments during the period defendant resided there, John

Rollins, also was acquainted with defendant. Rollins brought up the subject of

Keller’s murder and heard defendant claim responsibility for that murder, but the

remark was made in the course of preparing for a party, and everyone present

interpreted it as a joke.

Count 12 — the burglary of the residence occupied by Anna McComber,

Maria Saatin, and Nadia Gatti

Anna McComber resided in the Top of the Hill apartment complex, as did

defendant. Two friends from Italy, Maria Saatin and Nadia Gatti, were visiting

her. On August 2, 1990, the three young women sunbathed by the apartment

complex pool, went shopping, and sunbathed again. When they returned to the

apartment, they discovered that a large amount of cash in $50 and $100 bills had

been stolen, along with some Italian lire belonging to the Italian visitors.

On August 3, 1990, a person who identified himself as Cleophus Prince

exchanged 94,000 Italian lire for $74.73 at the San Diego Thomas Cook Foreign

Exchange office. Defendant also deposited $1,100 in two $50 and ten $100 bills

into his bank account. The cash deposit was far greater than any he previously had

made in the five months he had had the account.

Counts 13, 14, and 15 — the murders of Amber and Pamela Clark and the

burglary of their residence

On July 17, 1990, defendant’s girlfriend Charla Lewis joined the Family

Fitness Center on Miramar Road. She listed defendant as a member. The

membership was cancelled 10 days later.

At approximately 8:00 a.m. on September 13, 1990, Pamela Clark left her

home in the University City area of San Diego en route to the Family Fitness

Center on Miramar Road. She was wearing a “full body glove” and a bathing suit.

She was White, 42 years of age, and very fit. Her husband left their home at

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approximately 8:30 a.m. Their 18-year-old daughter Amber, who was still asleep,

was a member of the same fitness center. At approximately 10:00 a.m., neighbors

heard Amber speaking or arguing with someone inside the house. One neighbor

heard Amber call out as if afraid and also heard a male voice, but the neighbor

believed nothing serious was occurring. This witness believed Pamela Clark’s

automobile had left the residence earlier in the morning but had returned by

11:00 a.m. Pamela, who was a massage therapist, did not appear at work for her

11:00 a.m. appointment, an unusual occurrence. No one answered the telephone at

the Clarks’ home.

A colleague of Pamela Clark’s discovered her body in the entryway of the

home. Pamela was nude, lying on her back with her arms spread at 90 degrees to

her body with her legs together. She had suffered 11 deep, clustered stab wounds

to the upper left chest in an area measuring four and one-half by three and one-half

inches. There was evidence indicating she had been dragged to that location. A

knife that could have inflicted the wounds lay near her head.

Amber Clark’s body lay on the floor, partly in a hallway and partly in a

bedroom. She was clothed, but her garments had been pulled down to expose her

breasts. Her legs were spread somewhat apart. Like her mother, she had suffered

11 deep, closely clustered stab wounds to her upper chest in an area measuring

three by three and one-quarter inches. Blood was smeared on her body. A knife

blade lay on the floor in the bathroom.

Pamela Clark’s purse was found on her bed but, uncharacteristically,

contained no money. Her wedding ring was missing.

Possible points of entry included a partially opened dining room window

from which a screen had been removed, and a living room sliding glass door. The

door handle bore marks of silica and other material consistent with the gypsum

that defendant used in his employment. Shoe prints outside led back and forth

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under the dining room window. Defendant’s Eastland-brand shoes matched shoe

prints found under the window and in the dining room. Defendant had called in

sick to his employer on the day of the Clark murders.

Two persons who resided with defendant subsequent to these murders

testified that he had been in possession of Pamela Clark’s wedding ring.

Ernest Tu’ua, a coworker of defendant’s, testified that defendant told him

during the summer of 1990 that he was dating a massage therapist and that he was

“doing the massage therapist and her daughter,” a comment that Tu’ua took to

refer to sexual relations. Defendant commented that the massage therapist was an

older White woman with a good body. In September 1990, having changed jobs,

defendant was working at the Nacomm Cable Television Company. He installed

underground cable. He commented to his foreman that he was “going to do a

mother and a daughter,” a comment the foreman took to refer to sexual relations.

Defendant offered to sell jewelry to the foreman. Another coworker reported that

in September 1990, defendant said he was dating a woman and her daughter,

adding that the mother, aged 40, had a youthful appearance and the daughter, aged

17 or 18, was attractive. Defendant offered to sell the witness jewelry.

September 1990 — defendant and his cohorts

In the autumn of 1990, defendant resided at the Top of the Hill apartment

complex with Shirley Beasley (a male) and Shirley’s younger brother Moheshea

(Charla Lewis having moved out). According to Moheshea, Shirley told him that

defendant and Shirley, in the course of burglarizing the apartment of an older

couple who resided at the Top of the Hill complex, had stolen some beer.

Defendant told Moheshea he could break into apartments at the nearby Trojan

apartment building, because the doors lacked deadbolts. Defendant committed

three burglaries with Moheshea, who was 16 years of age at the time. In

committing these burglaries, defendant put socks on his hands as he approached

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the front door of the targeted home and then opened the door using a plastic card.

Defendant told Moheshea that he knew of a residence containing jewelry and a

safe, and proposed to burglarize it. Defendant stated that he had been inside the

home while the female occupant slept, and that if she had awakened, he would

have cut her throat. Defendant proposed to return to burglarize this residence.

Moheshea testified that he and defendant thereafter broke into a Top of the Hill

apartment and stole foreign currency. Defendant also told Moheshea that he

surveilled the homes of women he had met at gyms.

Count 16 — the burglary of Michelle Tait’s residence

Michelle Tait resided at the Collwood Pines apartments. On October 6,

1990, she sunbathed at the apartment pool beginning in the late morning. She

returned to her apartment briefly around 2:00 p.m., finding nothing amiss. When

she returned at 3:00 p.m., however, she found that her television and videocassette

recorder (VCR) had been stolen.

Tait had had an encounter with defendant during the month preceding the

burglary. She was walking up the stairs to her apartment when defendant asked

repeatedly whether he could help her carry her groceries. He was pushy and

aggressive. They made eye contact for almost a minute. He stared her down on

that occasion, and also at the preliminary examination.

Shirley Beasley testified that while he resided with defendant at the Top of

the Hill apartment complex, they burglarized an apartment at the Collwood Pines

apartment complex. Defendant asked Beasley whether he wanted a television and

a VCR. Pointing to a woman lying by the Collwood Pines apartment complex’s

pool, defendant stated it was her apartment they would burglarize. Defendant put

socks on his hands and entered the apartment door using a credit card. Defendant

went to the kitchen and took a knife, stating that if the occupant returned, Beasley

should move out of the way and defendant would “handle it.” They took the

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television and the VCR. Both were sold or given away but were traced to

defendant. Defendant told Beasley he had been watching a home he knew

contained a safe, intending to burglarize it. Defendant also told Beasley he had

stolen foreign currency during a burglary and knew where to exchange it. Beasley

testified that defendant kept a large quantity of women’s jewelry in the apartment

they shared.

Count 17 — the burglary of Michael Gromme’s residence

Michael Gromme resided in the Top of the Hill apartment complex and was

acquainted with defendant. Gromme complained about the noisy muffler on

defendant’s automobile. On October 15, 1990, when Gromme returned from work

at approximately 5:00 p.m., he found that all of his liquor and $100 in cash had

been stolen from his apartment. He discussed the burglary with defendant and

defendant’s roommate shortly after discovering the loss. Defendant’s roommate

commiserated, claiming that he and defendant had suffered a recent burglary.

Gromme’s apartment was located one floor above defendant’s.

Shirley Beasley testified that he and defendant burglarized the home of an

older couple who lived in the Top of the Hill apartment complex and stole all of

their liquor to have it for a party. Defendant suggested committing the burglary,

noting that the apartment was “right upstairs” from his apartment. During the

burglary, defendant took a knife from the kitchen and walked around the

apartment. Beasley testified that shortly after the burglary he and defendant

commiserated with the occupants of the burglarized apartment, falsely claiming to

have suffered a recent burglary themselves.

Count 18 — the burglary of Bruno Gherardi’s residence

On November 18, 1990, Bruno Gherardi’s home in Encinitas was

burglarized. The screen of his open bedroom window had been cut, and the

sliding door to his bedroom was open. His camcorder and its accessory bag were

18

missing, along with a knife from a butcher block in the kitchen. The camcorder

was traced to defendant.

Count 19 — the attempted burglary of Patricia Van’s residence

On December 19, 1990, Patricia Van returned to her home from the

Miramar Road Family Fitness Center at about 9:30 a.m. Approximately 20

minutes later, she heard a soft knocking at the door and saw a man she identified

at trial as defendant standing there. She opened the door, and defendant asked for

a person named Terry, but no one by that name resided there. Her neighbor,

Earline Schooner, stood behind defendant, and when she challenged him

brusquely, he walked away.

Schooner earlier had seen defendant examining nearby backyards. After

ten minutes, she saw him enter a side yard and approach Van’s front door.

Schooner, having seen defendant exit from a vehicle, provided the police with the

vehicle license number. The automobile was registered to defendant, and he was

stopped by the police at 2:30 p.m. on the same day while driving away from the

Family Fitness Center on Miramar Road. The vehicle was a gray Chevrolet

Cavalier. The police cited defendant for his loud muffler.

Count 20 — the burglary of Melinda Pinkerton’s residence

At approximately 11 a.m. on January 8, 1991, Lynn Shudarek returned

home from her workout at the Family Fitness Center on Miramar Road. She heard

someone knocking at the front door and then heard dogs barking. She saw the

doorknob moving. She held the doorknob and looked out, observing an African-

American man who continued for a moment to try to open the door. He departed

and went toward Melinda Pinkerton’s residence, two doors away.

When Pinkerton returned home at approximately 2:30 p.m. the same day,

the kitchen cabinets had been pulled open and a butcher knife had been placed on

the kitchen counter. The sliding door leading to her backyard was open. Her

19

camera was missing, and her lingerie had been moved. Six rings and a gold chain

were missing.

Defendant pawned two of Pinkerton’s rings that same afternoon, using the

name Rodney Higgs. After defendant’s arrest, when his automobile was searched,

the police found Pinkerton’s camera and a wallet containing identification

belonging to Rodney Higgs.

Count 21 — perjury

Defendant used false identification and signed a false name when he

pawned Melinda Pinkerton’s property.

Count 22 — the attempted burglary of Karyl Oldenburg’s residence

Karyl Oldenburg returned home from her workout at the Miramar Road

Family Fitness Center at approximately 11:30 a.m. on January 22, 1991. Once

inside her home, she heard the doorknob on the front door jiggling. Through the

peephole she witnessed defendant standing with something in his hands, not

knocking or ringing the doorbell. As she went to telephone her husband, she

observed defendant approaching the back door. She proceeded to the garage and

drove away. When a few months later she saw defendant’s photograph in the

newspaper, she telephoned the police to report the incident. She identified

defendant at a video lineup and at trial.

Count 23 — the burglary of Patricia Van’s residence

Approximately one month after the attempted burglary of the Van residence

(count 19), Patricia Van’s home was burglarized. On January 21, 1991, Van’s

husband discovered that the sliding door to the patio had been damaged with a tool

of some kind. On January 23, 1991, at approximately 9:20 a.m., Van returned

from her usual class at the Miramar Road Family Fitness Center. Once inside her

home, she discovered that the patio door was open; a window screen was propped

up in the kitchen, and the kitchen window was broken. The residence had been

20

ransacked. A butcher knife had been placed on the kitchen counter. Jewelry had

been stolen, and that same afternoon defendant drove his acquaintance Mary Ann

Knight to a pawnshop where she pawned an earring similar to one stolen from

Van.

Count 24 — the attempted burglary of Angela and Renata Yates’s

residence

On January 24, 1991, an African-American man driving a gray vehicle with

a loud muffler followed Angela Yates, then 19 years of age, as she drove home

from the Miramar Road Family Fitness Center. She became aware that she was

being followed, and attempted to evade her pursuer. She arrived home, and while

she showered, her mother, Renata, observed a shadow moving in the backyard.

Upon inspecting, Renata discovered defendant, whom she later positively

identified. When he moved toward a sliding door, Renata screamed to her

daughter to call the police and to “grab the gun.” Their dog ran outside, and

defendant ran away. Neighbors witnessed an African-American man jump over

the Yates’s fence and run to his vehicle. He appeared agitated as he attempted to

enter the vehicle, and drove off rapidly. The muffler of the vehicle was noisy.

Count 25 — the burglary of Louis Depamphillis’s residence

Louis Depamphillis returned to his home on Nobel Drive close to midnight

on February 1, 1991. He had left his screened front window ajar. When he

returned, the screen had been removed. His camera bag and jewelry boxes had

been moved. When he went to a friend’s apartment to telephone the police, he

noticed an African-American man driving away in an older model bluish-gray

vehicle with a loud muffler, possibly matching the photograph of defendant’s

automobile. When the police responded to Depamphillis’s call, they noticed an

adjacent apartment had an open front window from which the screen had been

removed. Police left a note for the occupant stating the apartment had been

21

burglarized. When he eventually was arrested, defendant was wearing a ring that

had been stolen from Depamphillis’s residence during the burglary.

Count 26 — the burglary of Judy Kinney’s residence

On February 3, 1991, after a two-day absence, Judy Kinney returned to her

apartment on Nobel Drive not far from the Miramar Road Family Fitness Center,

where she was a member. The screen to a front window had been removed, and

the apartment had been ransacked. Her jewelry and lingerie drawers were open,

and lingerie was draped on the drawers. Her emerald ring and a gold chain had

been stolen. Defendant gave Kinney’s emerald ring to Brittan Lewis and the gold

chain to Charla Lewis. Kinney believed she had been followed home from the

Family Fitness Center on Miramar Road approximately one month prior to the

burglary.

Count 27 — the attempted burglary of Geralyn Peters Venvertloh’s

residence2

On the morning of February 3, 1991, Geralyn Peters Venvertloh returned

home to her Scripps Ranch apartment from her usual morning workout at the

Family Fitness Center on Miramar Road. She undressed for a shower, then heard

the knob on the front door rattling. She looked out and saw an African-American

man leaning against the door with his hands in the area of the doorknob. She

dressed and exited from her apartment through a sliding glass door and proceeded

to the back of the apartment complex. She screamed for help. Her neighbor,

Jeffrey Pich, responded. When Venvertloh and Pich walked to the front of her

apartment, they observed the man still standing at the door, bent over and working


2

This witness had married and changed her surname from Peters to

Venvertloh by the time of trial.

22

at the door with some object. He wore gloves. When challenged, the man claimed

he was looking for his fiancé or a female friend whom he claimed to have seen

entering Venvertloh’s home. He walked away calling out a woman’s name. Pich

walked down the street looking for the would-be intruder and soon observed the

man in question driving away in a noisy vehicle at a high rate of speed. Geralyn

Peters Venvertloh’s then-fiancé, Mark Venvertloh, arrived home and also

witnessed an African-American man enter an older silver-colored vehicle and

drive away noisily at a high rate of speed. Having examined the intruder closely

on that occasion, Pich identified defendant as the man he had seen on the front

step of his neighbor’s residence.

The next day, Geralyn Venvertloh, who was employed at the same location

as Charla Lewis, witnessed a man drop off Lewis at work. The man resembled

defendant and drove an older model vehicle that had a loud muffler. Pich

identified defendant in a photo lineup that same day. One month later Pich

identified a photograph of defendant’s automobile, and later confirmed that the

vehicle sounded like the one he had witnessed when defendant fled from

Venvertloh’s apartment.

A police officer took statements from Geralyn Peters Venvertloh, Pich, and

Mark Venvertloh, and proceeded to the Family Fitness Center on Miramar Road

with a description of the vehicle and the suspect. The officer asked fitness center

employees to inform the police in the event they witnessed either the man or the

vehicle in the vicinity of the establishment. The next morning, February 4, 1991,

the fitness center’s front desk manager informed the police that she had observed a

silver-colored automobile with a loud muffler driven by an African-American man

proceed through the fitness center’s parking lot, returning 15 minutes later. The

employee observed the vehicle parked 30 feet from her office window and

watched as the driver moved to the passenger side of the vehicle and slumped

23

down. She was able to observe part of the vehicle license number, which she

relayed to the police. Law enforcement officers arrived 15 minutes later and

confronted defendant, the occupant of the vehicle.

Defendant informed the officers that he was waiting for his girlfriend,

Cindy. A person named Cindy was present at the fitness center at the time, and

although she was acquainted with defendant, she was not his girlfriend and had no

plan to meet him that day. The officers placed defendant under arrest.

A search of defendant’s vehicle uncovered a pair of black leather gloves in

the center console and a pair of wool gloves on the driver’s seat. Under the

driver’s seat was a knife with an eight-inch blade and a five-inch handle. On the

right front floorboard was a folding knife with a two-and-one-half-inch blade and

a four-inch handle. Under the front seat were a steak knife and a small folding

pocket knife.

Other employees of the fitness center had observed defendant’s vehicle in

the center’s parking lot on multiple occasions. They had seen a person who may

have been defendant seated in the vehicle, slumped in the passenger seat.

Defendant was questioned and released after providing the police with a

blood sample. Subsequently, on February 23, 1991, an undercover police officer

witnessed defendant drive into the Miramar Road Family Fitness Center parking

lot and, slowing as he observed a marked police vehicle parked in the lot, exit the

center’s parking lot and drive away at a high rate of speed. The muffler of his

vehicle made a loud sound.

Defendant was arrested on March 1, 1991, in Birmingham, Alabama.

As discussed at greater length post, FBI Special Agent Larry Ankrom

testified that the six murders bore common marks that led him to believe they all

were committed by the same person.

24



2. The defense case

Two police officers testified that defendant’s automobile would not start

without manual manipulation under the hood, and would function only if a metal

object such as a screwdriver were placed under the hood to make an electrical

connection. Officers observed defendant start the vehicle in this manner while

they had him under surveillance. Defendant produced evidence indicating that

jewelry traced to the burglaries of the DePamphilis and Kinney residences and the

murder of Keller was not custom-made but was available commercially. Charla

Lewis testified that during the time she resided with defendant, he never arrived

home in an agitated state or stained by blood. Defendant introduced evidence

establishing that many companies other than his employer distributed to their

employees gloves with the distinctive honeycomb or cross-hatch pattern that may

have been used during the murders.

Statements of various prosecution witnesses were impeached.

Marsha Nelson, who was a neighbor of murder victim Janene Weinhold

and observed defendant seated on the steps leading to Weinhold’s apartment on

the day of the murder, had told a police interviewer immediately after the crime

was discovered that the man she saw on the steps had his head in his hands the

entire time she looked at him and that she was unable to see his face. Nelson had

circled defendant’s number at the live lineup, then crossed it out, explaining that

too much time had elapsed since the crime. Karyl Oldenburg (count 22) told the

police at the time of the attempted burglary of her home that she might not be able

to identify the perpetrator in a lineup. Oldenburg’s identification of defendant was

made after she had seen his picture in the newspaper, and although she identified

defendant in a video lineup and at trial, she testified that unlike defendant, the man

she saw at her front door did not have facial hair. Dorothy Curtiss, the apartment

manager of the complex where Schultz was murdered, failed to make an

25

identification at the live lineup even though she identified defendant at trial.

Rodney Dunn, a maintenance worker at the apartment complex, cast doubt on

Curtiss’s testimony that it was defendant who approached her seeking assistance

on the day of Schultz’s murder. On the day Schultz was murdered, Dunn, who

was familiar with defendant’s appearance, was approached before noon by an

African-American man who was not defendant. The man asked for a screwdriver

because he had locked himself out of his car. The witness assisted the man in

unlocking a vehicle that was not defendant’s. Richard Williams, the maintenance

worker who entered murder victim Tarr’s apartment with witness Ho to render

assistance, had observed the perpetrator running toward him, but described that

individual as probably Hispanic and selected someone other than defendant at the

lineup.

A witness, Carol Dhillon, testified she had observed an encounter at the

Buena Vista Gardens apartment complex similar to the incidents attributed to

defendant, but the perpetrator was not defendant. On a morning in mid-March

1990, her 22-year-old daughter was taking a shower when Dhillon observed an

African-American man looking up at her apartment. Ten or 15 minutes later,

when she retrieved the newspaper from her front step, the man pushed open the

front door and said he was looking for his cousin. Dhillon closed the door. The

visitor was not defendant. She saw the visitor again approximately two hours later,

sitting on or standing by a parked older model automobile.

Shirley Beasley, who on direct examination had testified that he had

burglarized homes with defendant and had attributed incriminating statements to

defendant, was flown to San Diego, where the police department paid for his

lodging while he underwent interrogation. Beasley thereafter was arrested for

robbery. He was in custody but had not yet been sentenced when he testified for

the prosecution at defendant’s preliminary examination. The prosecution’s

26

investigator testified on Beasley’s behalf at his sentencing, explaining that Beasley

had been of assistance in the present case. Beasley was sentenced to four years in

prison, a relatively light sentence. He was given immunity from prosecution for

the burglaries he committed with defendant and for any other crimes he admitted

in the course of his interrogation in the present case. One of Beasley’s comments

indicated he was interested in receiving the reward offered for capture of the so-

called Clairemont killer.

Christine Fagan testified defendant had lunch with her on May 2, 1990,

until approximately 2:30 p.m. on the day Leslie Hughes-Webb was attacked.

They met at a location that would have made it extremely difficult for defendant to

arrive at the beach by the time of the attack. Fagan observed defendant wearing a

gold nugget ring similar to the one the prosecution claimed had been stolen during

the Keller murder, but Fagan’s meeting with defendant occurred prior to that

murder. (Under cross-examination by the People, Fagan added that defendant had

stared intently at her during their lunch and aggressively demanded that she go

somewhere with him, frightening her.)

Raymond Huntley, the jailhouse informant, was impeached. He had been

convicted of multiple burglaries, robberies, and rapes, had escaped from a Florida

prison, was facing a sentence of at least 20 years, and was a prison escapee at large

in San Diego when he was arrested. He shared a cell only briefly with defendant,

later being returned to Florida to complete his prison term. Approximately four

months after his conversation with defendant, Huntley contacted the prosecution

from Florida to offer information. In exchange for his testimony against

defendant, he received various benefits, including a transfer from a Florida prison

to one in California and a potential early release date.

Defendant also presented the testimony of an expert in the phenomenon of

eyewitness identification. She explained the many flaws in such identification and

27

the factors undermining accuracy, including fear, the lapse of time, the

reinforcement of opinion that occurs during multiple proceedings, and the effect of

a threat with a weapon on the accuracy of observation. She explained that a

person’s confidence in his or her identification is not indicative of the reliability of

the identification.

In rebuttal, the prosecution presented evidence establishing that the murders

occurring at the Buena Vista Gardens apartment complex ceased after defendant

moved out in the first week of May 1990.

The jury found defendant guilty of the charged offenses and found true the

knife-use and special circumstance allegations.



B. Penalty Phase Evidence



1. The prosecution’s case

The prosecution presented evidence indicating that on December 7, 1991,

prior to the trial, a search of defendant’s jail cell produced a toothbrush with a

razor attached — a makeshift weapon typically known as a “shank.” The object

was hidden between the mattresses on defendant’s bed.

The prosecution presented evidence of an additional jailhouse incident

involving defendant. Deputy Samuel Sheppard testified that on November 22,

1991, when he arrived to conduct inmates from a recreation area to their cells,

defendant told the deputy that he would “kick [his] sweet ass,” directing

threatening gestures at the deputy while uttering these words. Defendant

continued to taunt or threaten the deputy, who grabbed defendant and pushed his

face against the wall. Defendant struck Sheppard in the ribs with his elbow and

tried to trip him. Sheppard forced defendant to the ground. Other deputy sheriffs

assisted in subduing defendant.

28

The prosecution also presented the testimony of several family members of

the murder victims. The parents of murder victims Schultz, Weinhold, and Tarr

testified, as did Keller’s daughter. They described the victims and the impact of

the murders upon the families.

The prosecution played an approximately 25-minute videotape of a

television interview with Tarr that had been prepared by a local television station

in her hometown a few months prior to her murder. The program marked the

accomplishments of certain successful local high school students. In the

interview, Tarr described her interests and activities, as well as her plans for

college and for a potential career as an actress.



2. The defense case

The defense presented the testimony of various members of defendant’s

family and of one of his friends. These witnesses described defendant’s

childhood, the circumstance that when he was two years of age his father was

convicted of murder and subsequently served 11 years in prison, and defendant’s

formative years spent in a rundown, crime-ridden housing project in Alabama.

Defendant was extremely short in stature as a child. These witnesses offered

evidence of defendant’s good character, including his close relationship with his

paternal grandmother and faithful visits to her, his visits to his father in prison, his

industriousness, his protective attitude toward relatives, his compassion, and his

generosity. Various relatives and a former girlfriend expressed their love for

defendant and asked the jury to spare his life.

A sociologist described the negative attributes of the housing project where

defendant resided as a child, and offered the opinion that circumstances such as

family violence, inadequate housing conditions, poor education, drug and alcohol

abuse, and gang activity were harmful to a child’s development. A high school

29

counselor described defendant’s development into a responsible person, and a

pastor testified concerning defendant’s church activities. A former employee of

the Department of Corrections described the prison conditions experienced by

persons sentenced to life imprisonment without the possibility of parole. The

testimony of a fellow inmate suggested that defendant had not been the instigator

of the conflict with Deputy Sheppard.

II. DISCUSSION



A. Claims Affecting the Guilt Phase of the Trial



1. Motion for change of venue

Defendant contends extensive pretrial publicity required a change of venue.

He claims the trial court’s failure to grant his motions for change of venue

(§ 1033, subd. (a)) constituted prejudicial error under state law and a violation of

his right to due process of law and to a fair trial by an impartial jury as guaranteed

by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

We disagree.

a. Factual background

The charged offenses occurred between January 1990 and February 1991.

Defendant was apprehended in March 1991. The preliminary examination

commenced on February 24, 1992. Defendant filed a motion for change of venue

on September 14, 1992. In support of his motion for change of venue, the defense

proffered evidence of the more than 270 newspaper articles that had appeared

concerning the crimes, the criminal investigation, defendant’s eventual arrest in

Alabama and extradition, and the preliminary examination. There was evidence

suggesting that television coverage was similar in extent, as the parties stipulated.

It also was stipulated that one television station used defendant’s image in quick

cuts along with the images of Robert Alton Harris and Craig Peyer, persons who

30

had been convicted of murder in San Diego County. Defendant’s image was on

the screen for “under a second and a half.”

As might be expected when a series of six similar murders occurs in a

community over a period of approximately one year without a culprit being

quickly identified, the publicity in the present case was pervasive and occasionally

potentially prejudicial — particularly during the period the crimes remained

unsolved and the perpetrator remained at large. Newspaper articles recounted the

growing fear among residents of the neighborhoods where the crimes occurred;

articles noted the apparent connection among the crimes, and the eventual

designation of the murders as “serial killings”; articles recounted the increasing

police resources devoted to the investigation, which eventually was the most

extensive in San Diego County history; articles recounted the disproportionate

impact of the investigation upon African-American men in the affected

neighborhoods, and assertedly prejudicial articles predicted another attack and

compared the crimes to those committed by the notorious Jack the Ripper.

Defendant also proffered articles recounting his arrest in Alabama and the

relief that ensued among residents of San Diego, especially in neighborhoods in

which the murders had occurred; his efforts to resist extradition from Alabama;

and providing negative information concerning his family, including his father’s

conviction of murder. In addition, he presented articles in which persons surmised

they had experienced close brushes with defendant and might have been his next

victim. News articles noted that defendant was suspected of having committed

two additional unsolved murders and mentioned his Navy court-martial for theft.

An article described defendant’s eviction from the Top of the Hill apartment

complex for participating in a fight. The crimes were featured on the television

program America’s Most Wanted.

31

Defendant also presented evidence indicating that the news media had

reported on damaging evidence that was uncovered during the investigation and

also at the preliminary examination, including testimony by identification

witnesses, statements to the press, and preliminary examination testimony

attributing incriminating statements to defendant, lab results claiming a DNA

match between samples taken from defendant and evidence found at the scene of

the Weinhold murder, and the circumstance that defendant’s girlfriend possessed

jewelry stolen from the victims.

The defense also presented the testimony of Paul Strand, an expert who

conducted a public opinion survey in February 1992, prior to the preliminary

examination. According to Strand, approximately 74 percent of the 300 persons

surveyed were aware of the case despite the circumstance that only two related

news items had appeared during the previous six months. Of those aware of the

case, Strand reported that 25 percent were predisposed to find defendant guilty.

Strand conducted another survey in September 1992. Seventy-seven percent of

the respondents were aware of the case and, of that group, 24 percent were

predisposed to find defendant guilty. There had been a burst of publicity around

the time of the preliminary examination in February and March of 1992, but very

few news items appeared between April and mid-September of 1992.

The trial court acknowledged that the crimes had been serious and the

publicity intense. The court noted that neither the victims nor the defendant had

been prominent or notorious other than in connection with the charged crimes. To

the extent defendant was an outsider, the court observed that San Diego is a Navy

town, where many individuals might be considered outsiders. The court observed

that Tarr, one of the murder victims, also was an out-of-town visitor, and

commented that other victims lacked long-standing ties to the community.

32

The court also commented that sensational news coverage concerning crime

permeates our culture in general, and surmised that citizens become inured to such

coverage or accord it the same weight as entertainment. The court distinguished

the present case from another San Diego County prosecution, that of Robert Alton

Harris (see People v. Harris (1981) 28 Cal.3d 935), concluding that the news

coverage in the present case lacked the animosity and prejudgment that had been

conveyed in press reports concerning Harris and, rather, left open the question of

defendant’s guilt. Moreover, the investigation continued for a protracted period,

during which two persons other than defendant were arrested, and residents

appeared uncertain whether defendant actually was the culprit. Turning to the

public opinion surveys, the court commented upon the size and diversity of the

county’s population and upon the circumstance that the surveys demonstrated that

a low percentage of potential jurors had formed an opinion concerning defendant’s

guilt. Under these circumstances, the court could not conclude it was reasonably

likely that counsel and the court would be unable to empanel a fair jury.

The court anticipated that “we’re going to see a lot of people on the panel

who are familiar with the case,” but also anticipated that even persons who

casually stated a belief in a defendant’s guilt to a poll taker would find that, as

jurors, the seriousness of the trial would cause them to set aside their assumptions

and judge the case based upon the evidence presented in court.

Further, the court reminded counsel that “it’s going to be one of our tasks in

jury selection to talk to people who’ve seen the evidence and ask whether they’ve

come to a conclusion. And whatever they say, whether it’s ‘yes’ or ‘no,’ that’s

obviously not going to be conclusive . . . .”

Defendant moved for reconsideration, supplying previously unavailable

videotapes of television news coverage of the crimes. According to defendant’s

pleadings, San Diego’s channel 39 repeatedly combined defendant’s image with

33

the images of three convicted murderers from San Diego and various other

newsworthy images as part of the brief “spots” promoting one of its news

programs. According to defendant, this advertisement appeared 950 times over a

13-month period ending approximately six months prior to the present trial.

Speaking in connection with his motion for reconsideration, defense

counsel stated that he expected to renew the motion for change of venue “once we

commence jury selection and once the court really sees the nature of publicity,

how it has affected people.” Counsel did not renew the motion, however.

The case was reassigned to another judge for trial. That judge denied the

motion for reconsideration, adopting the analysis and conclusion of the court that

had heard the original motion.

b. Analysis

State law provides that a change of venue must be granted when the

defendant demonstrates a reasonable likelihood that a fair trial cannot be held in

the county. (§ 1033; People v. Vieira (2005) 35 Cal.4th 264, 278-279.) “ ‘ “The

factors to be considered are the nature and gravity of the offense, the nature and

extent of the news coverage, the size of the community, the status of the defendant

in the community, and the popularity and prominence of the victim.” ’ ” (Id. at

p. 279.)

On appeal, we conduct de novo review of the evidence presented to the

superior court to determine whether the court should have granted a change of

venue. (People v. Jenkins (2000) 22 Cal.4th 900, 943.) In addition, on appeal

“ ‘ “the defendant must show both that the court erred in denying the change of

venue motion, i.e., that at the time of the motion it was reasonably likely that a fair

trial could not be had, and that the error was prejudicial, i.e. that it [is] reasonably

likely that a fair trial was not in fact had.” ’ ” (Ibid.)

34

We agree with the superior court that the nature of the crimes and the

intensity of publicity in the present case might weigh in favor of a change of

venue, but “ ‘the same could be said of most multiple or capital murders. This

factor is not dispositive.’ [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468,

523.) San Diego County’s population at the time of the trial was estimated at two

million persons, and “ ‘[t]he larger the local population, the more likely it is that

preconceptions about the case have not become imbedded in the public

consciousness.’ . . . The key is whether . . . the population is of such a size that it

‘neutralizes or dilutes the impact of adverse publicity.’ [Citation.]” (People v.

Jennings (1991) 53 Cal.3d 334, 363; see also People v. Harris, supra, 28 Cal.3d at

p. 949.) We have concluded that even a lower population of 1.4 million (Santa

Clara County) “suggests that any prejudicial publicity’s effect would be diluted or

neutralized over time.” (People v. Dennis, supra, 17 Cal.4th at p. 523.)

Neither defendant nor the victims were prominent or notorious apart from

their connection with the present proceedings. As in other cases, “[a]ny uniquely

heightened features of the case that gave the victims and defendant any

prominence in the wake of the crimes, which a change of venue normally attempts

to alleviate, would inevitably have become apparent no matter where defendant

was tried.” (People v. Dennis, supra, 17 Cal.4th at p. 523.) We acknowledge the

prejudice that may have attended the circumstances that defendant is African-

American and the victims all were White women, and that the crimes included one

rape and other crimes having sexual undertones. (See People v. Williams (1989)

48 Cal.3d 1112, 1129.) This element of possible prejudice presumably would

follow the case to any other venue, however. (See People v. Dennis, supra, 17

Cal.4th at p. 523; see also People v. Cooper (1991) 53 Cal.3d 771, 806.) The

publicity did not emphasize defendant’s race or employ inflammatory terms to

kindle racial hatred.

35

We also observe that the bulk of the publicity upon which defendant relies

was disseminated between the time of the second murder in February 1990 and the

time the preliminary examination took place in February 1992, and that

approximately one additional year elapsed between that hearing and the

commencement of jury selection in March 1993. The television promotional

material of which defendant complained was withdrawn in July 1992. The

passage of time ordinarily blunts the prejudicial impact of widespread publicity.

(See People v. Jenkins, supra, 22 Cal.4th at p. 944; People v. Dennis, supra, 17

Cal.4th at p. 524; see also People v. Robinson (2005) 37 Cal.4th 592, 623.) We

also may presume that potential and seated jurors did not read or watch news

reports concerning the case against defendant that may have been disseminated

during jury selection and the ensuing trial, because the jury questionnaire directed

potential jurors not to expose themselves to news coverage for the duration of their

service.

Defendant also fails to establish a reasonable likelihood that pretrial

publicity in fact deprived him of a fair trial. Pervasive publicity alone does not

establish prejudice. (People v. Panah (2005) 35 Cal.4th 395, 448.) Jurors who

have been exposed to publicity still may serve. “ ‘ “It is sufficient if the juror can

lay aside his impression or opinion and render a verdict based on the evidence

presented in court.” ’ ” (Ibid.; see also People v. Coffman and Marlow (2004) 34

Cal.4th 1, 45.)

The superior court’s confidence that, despite the publicity, the venire would

consist primarily of persons who had not formed an opinion as to defendant’s guilt

was borne out by subsequent proceedings. Although a high percentage of the

prospective jurors and 12 of the 13 jurors who actually served at trial (one juror

was excused after the guilt phase and an alternate was substituted) had been

exposed to the publicity, the jurors’ responses to the juror questionnaire and voir

36

dire did not disclose any prejudgment or emotional bias. Rather, for the most part

they displayed only a vague recollection of past news coverage, a circumstance

suggesting the absence of prejudice. (People v. Jenkins, supra, 22 Cal.4th at p.

945.) Significantly, the jurors asserted that the publicity would not prevent them

from serving as unbiased jurors. (See People v. Panah, supra, 35 Cal.4th at p. 448

[relying upon similar assertions]; People v. Coffman and Marlow, supra, 34

Cal.4th at p. 46 [same].) Defendant refers to voir dire answers of three of the

seated jurors: Juror H.E., Juror J.G., and Juror A.W. None of these jurors made

statements suggesting they had prejudged the case or were biased because of the

pretrial publicity. (Juror H.E. — the juror remembered when defendant was

arrested, but said it was not of great moment to him; Juror J.G. — he knew

nothing specific, just that there were some killings in a certain neighborhood, and

he had read nothing about the case since the time defendant was extradited to

California; Juror A.W. — she read about the case and was frightened. When

defendant was arrested, she asked herself “is it him or not?”)

Defendant insists we cannot believe jurors who are aware of publicity but

profess not to have formed an opinion concerning guilt or otherwise to have been

prejudiced by publicity. Although “such assurances are not conclusive” (People v.

Jennings, supra, 53 Cal.3d at p. 361), neither do we presume that exposure to

publicity, by itself, causes jurors to prejudge a defendant’s guilt or otherwise

become biased. (People v. Jenkins, supra, 22 Cal.4th at p. 945.) “[T]he Supreme

Court has made clear that we cannot, as a general matter, simply disregard a

juror’s own assurances of his impartiality based on a cynical view of ‘the human

propensity for self-justification.’ ” (DeLisle v. Rivers (6th Cir. 1998) 161 F.3d

370, 384.) It was the function of the voir dire examination to expose actual bias or

prejudice, but the voir dire in this case did not demonstrate a biased or prejudiced

jury. Courts must distinguish between “mere familiarity” with the defendant or

37

the crime and an “actual predisposition” against the defendant. (Murphy v.

Florida (1975) 421 U.S. 794, 800, fn. 4.) A court may discount a juror’s claim to

be untouched by publicity when “most veniremen will admit to a disqualifying

prejudice” (id. at p. 803), but the venire in the present case was not pervaded by

bias in this manner.

Moreover defense counsel did not renew the motion for change of venue at

the conclusion of voir dire and, moreover, did not exhaust his peremptory

challenges. Putting aside any question whether counsel’s inaction constituted a

forfeiture of the issue on appeal, counsel’s conduct supports a reasonable inference

that the defense did not believe that pretrial publicity had prejudiced the seated

jurors or rendered them unable to afford defendant a fair trial. Indeed, “ ‘[t]he

failure to exhaust peremptories is a strong indication that “the jurors were fair and

that the defense itself so concluded.” ’ ” (People v. Dennis, supra, 17 Cal.4th at p.

524; see also People v. Robinson, supra, 37 Cal.4th at p. 623; People v. Coffman

and Marlow, supra, 34 Cal.4th at p. 46.)

Defendant urges that no rational inference that counsel was satisfied with

the jury can be drawn from counsel’s failure to exhaust peremptory challenges.

He contends that the denial of the motion for change of venue had left defense

counsel with a venire that was saturated with persons who had been exposed to the

pretrial publicity and that included a substantial proportion of jurors who must

have prejudged defendant. He adds that defense counsel were aware of which

juror would be called should they exercise a peremptory challenge and may have

found the next prospective juror even worse than the juror they might have

excused.3

3

Defendant also claims that “comments made by defense counsel, in seeking

additional challenges after exhausting all they had for alternate jurors,

(footnote continued on next page)

38

In essence, defendant claims that the publicity was so pervasive and

inflammatory that, under federal constitutional guarantees, prejudice must be

presumed.

In exceptional cases, “ ‘adverse pretrial publicity can create such a

presumption of prejudice in a community that the jurors’ claims that they can be

impartial should not be believed,’ [citation] . . . .” (Mu’min v. Virginia (1991) 500

U.S. 415, 429, italics added.) “The category of cases where prejudice has been

presumed in the face of juror attestation to the contrary is extremely narrow.

Indeed, the few cases in which the [high] Court has presumed prejudice can only

be termed extraordinary, [citation], and it is well-settled that pretrial publicity

itself — ‘even pervasive, adverse publicity — does not inevitably lead to an unfair

trial.’ [Citation.]” (Delisle v. Rivers, supra, 161 F.3d at p. 382.) This prejudice is

presumed only in extraordinary cases ⎯ not in every case in which pervasive

publicity has reached most members of the venire. We do not believe the present

case falls within the limited class of cases in which prejudice would be presumed

under the United States Constitution.4

(footnote continued from previous page)


demonstrated a dissatisfaction with the entire selected jury, not just the alternates.
Defense counsel stated: ‘We are in very bad — we didn’t use hardly any, used
any challenges on the major part. We are stuck with some very bad jurors. We
are very upset with the jurors that we have.’ ” The quoted comments, however,
related to the alternates and suggest dissatisfaction with the venire’s attitude
toward the death penalty, and do not connect counsel’s dissatisfaction with the
pretrial publicity.

4

As in previous cases in which a defendant claimed error in denying a

change-of-venue motion, “[d]efendant argues he was denied a reliable
determination of his penalty guaranteed by the Eighth Amendment, citing
Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329, which held that ‘it is
constitutionally impermissible to rest a death sentence on a determination made by
a sentencer who has been led to believe that the responsibility for determining the

(footnote continued on next page)

39

We acknowledge that the high court has held that prejudice may be

presumed in some limited instances. The court declared that although jurors who

are familiar with some facts of the crime may be qualified to serve because they

can put aside their views and reach a verdict based upon the facts in evidence,

“[a]t the same time, the juror’s assurance that he is equal to this task cannot be

dispositive of the accused’s rights, and it remains open to the defendant to

demonstrate ‘the actual existence of such an opinion in the mind of the juror as

will raise the presumption of partiality.’ [Citation.]” (Murphy v. Florida, supra,

421 U.S. at p. 800, italics added.)

The United States Supreme Court decisions that have presumed that pretrial

publicity was prejudicial involved extreme circumstances, however. In one case

in which the high court reversed a judgment, the critical feature was that a local

television station in a relatively small community on several occasions broadcast

the entire spectacle of the defendant’s jailhouse confession. (Rideau v. Louisiana

(1963) 373 U.S. 723, 727.) Explaining two other cases in which the high court

presumed prejudice, the court stated that “[t]he trial in [Estes v. Texas (1965) 381

U.S. 532] had been conducted in a circus atmosphere, due in large part to the

intrusions of the press, which was allowed to sit within the bar of the court and to

overrun it with television equipment. Similarly, [Sheppard v. Maxwell (1966) 384

U.S. 333] arose from a trial infected not only by a background of extremely

inflammatory publicity but also by a courthouse given over to accommodate the

(footnote continued from previous page)


appropriateness of the defendant’s death lies elsewhere.’ He also cites Woodson v.
North Carolina
(1976) 428 U.S. 280, which invalidated a law that provided a
mandatory penalty of death for all first degree murders. Defendant fails to explain
how either of these [principles] has any relevance to the present case.” (People v.
Ramirez
(2006) 39 Cal.4th 398, 436.)

40

public appetite for carnival. The proceedings in these cases were entirely lacking

in the solemnity and sobriety to which a defendant is entitled in a system that

subscribes to any notion of fairness and rejects the verdict of a mob. They cannot

be made to stand for the proposition that juror exposure to information about a

state defendant’s prior convictions or to news accounts of the crime with which he

is charged alone presumptively deprives the defendant of due process.” (Murphy

v. Florida, supra, 421 U.S. at p. 799.) The reviewing court instead must look for

“indications in the totality of the circumstances that [the defendant’s] trial was not

fundamentally fair.” (Ibid.)

Defendant has not demonstrated similarly extreme circumstances. We

acknowledge that in the present case there was extensive print and television

coverage of the crimes, the search for the perpetrator, the fears engendered by the

nearly year-long series of murders, and defendant’s subsequent arrest and

extradition. A further spike in publicity occurring at the time of the preliminary

examination served to summarize the earlier events and added potentially

prejudicial information, such as an overstatement of the incriminating value that

the cautious trial court eventually permitted to be attributed to the DNA evidence,

defendant’s incriminating statements to a friend, the murder conviction of

defendant’s father, and the circumstance that some of the victims’ jewelry could

be traced to defendant. Some elements of the news coverage could be labeled

inflammatory or sensational, for example when the perpetrator — then

unidentified — was compared with Jack the Ripper or a television announcer

referred to a “reign of terror,” when newspaper and television articles emphasized

the community fear provoked by the murders, and when the television promotional

spot repeatedly exhibited defendant’s image along with those of locally well-

known convicted murderers. As noted, the crimes were of a nature that might

41

arouse racial animus, although the news coverage itself did not exploit this

circumstance.

On the other hand, the bulk of the newspaper articles and television reports

merely recounted the facts of the crimes, the course of the investigation, and the

circumstances of defendant’s arrest. There were articles and reports concerning

the arrest and potential prosecution of other persons and, as the trial court

observed, it appeared from the news reports that the community remained

uncertain whether it was defendant who actually was the perpetrator. The great

bulk of the articles and reports was framed in neutral terms and did not “amount[]

to an ‘out-of-court campaign to convict,’ reflecting ‘ “inflamed public sentiment

[citation]” ’ such as when a defendant is persistently labeled in incendiary terms;

‘a “werewolf,” a “fiend,”a “sex-mad killer,” and the like’ [citations]. As the . . .

Court observed, coverage that consists of ‘straight news stories rather than

invidious articles which would tend to arouse ill will and vindictiveness,’

[citation], is not so troubling.” (DeLisle v. Rivers, supra, 161 F.3d at p. 385.)

In the present case, defendant does not allege that there was a barrage of

publicity immediately preceding the trial. “[C]essation of publicity for some

period prior to trial will go a long way toward undoing the damage of a previous

media blitz.” (DeLisle v. Rivers, supra, 161 F.3d at p. 385.) Defendant’s own

expert noted the small number of articles and reports that were published between

the preliminary examination and the hearing on the motion to change venue. The

promotional television spot upon which defendant places great weight was

withdrawn approximately six months prior to trial. The juror questionnaire

instructed prospective jurors not to expose themselves to any further media

coverage. Defendant does not contend on appeal that the media intruded and

created a circus atmosphere at trial. The entire venire contained only a small

proportion of persons who had formed an opinion as to defendant’s guilt, and

42

nothing in the record suggests the panel of seated jurors harbored any opinion

concerning defendant’s guilt. Contrary to defendant’s claim, “we cannot, as a

general matter, simply disregard a juror’s own assurances of his impartiality based

on a cynical view of ‘the human propensity for self-justification.’ [Citation.]” (Id.

at p. 384.)5 On balance, defendant fails to persuade us that his was one of the

extraordinary cases in which prejudice must be presumed. We conclude that

defendant has failed to demonstrate a violation of his federal constitutional right to

a trial by an impartial jury or to due process of law.



2. Expert opinion evidence

Defendant contends the trial court abused its discretion and deprived him of

a fair trial when, on motion of the prosecution, it permitted FBI Special Agent

Larry Ankrom to testify as an expert that, based on his experience comparing the

records of hundreds of crime scenes, various common marks among the six

charged homicides led him to conclude the crimes were committed by the same

person. Defendant asserts a violation of his constitutionally guaranteed right to

the presumption of innocence absent proof of guilt beyond a reasonable doubt.

(U.S. Const., 5th & 14th Amends.) He also claims a denial of his right to reliable

factfinding in a capital case (U.S. Const., 8th Amend.; Caldwell v. Mississippi,


5

Indeed, “it is beyond question that mere prior knowledge of the existence of

the case, or familiarity with the issues involved, or even some preexisting opinion
as to the merits, does not in and of itself raise a presumption of jury taint; such a
standard would be certainly unsalutary, and likewise impossible to achieve: [¶] ‘It
is not required . . . that the jurors be totally ignorant of the facts and issues
involved. In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the interest of the
public in the vicinity, and scarcely any of those best qualified to serve as jurors
will not have formed some impression or opinion as to the merits of the case.’ ”
(DeLisle v. Rivers, supra, 161 F.3d at p. 382.)

43

supra, 472 U.S. 320), and what he terms an “arbitrary deprivation of the state-

created protection of Evidence Code section 800” in violation of his right to due

process of law. (U. S. Const., 5th & 14th Amends.)

The prosecution announced prior to trial that it intended to call FBI Special

Agent John Douglas to testify as an expert on crime scene analysis and “signature

crimes,” anticipating Douglas would express his opinion that all six charged

murders had been committed by the same person. Evidently the prosecution also

anticipated that Douglas would testify concerning psychological elements

involved in serial murders.

Defendant objected to the proposed testimony on multiple grounds,

including Douglas’s lack of qualifications as an expert on psychological matters

(Evid. Code, § 720), improper subject matter for expert testimony (Evid. Code,

§ 801), relevance (Evid. Code, § 210), and the testimony’s prejudicial impact

outweighing its probative value. (Evid. Code, § 352.) Defendant also relied upon

“the Fifth and Fourteenth Amendments to the United States Constitution and

analogous provisions of the California Constitution.”

The court conducted a lengthy pretrial hearing, receiving extensive

testimony from Douglas and his colleague, FBI Special Agent Ankrom. The court

did not believe the witnesses’ training or experience qualified them to express an

opinion regarding the probable state of mind of the perpetrator, and that aspect of

the proposed testimony was excluded. The court concluded the witnesses had

sufficient training and experience in crime scene investigation, however, and that

the subject matter of “crime scene analysis and the signature crimes” was beyond

common experience. The court ruled the proposed testimony on that limited topic

was admissible. The prosecution elected not to call Douglas; only Ankrom

testified.

44

Ankrom’s qualifications as a crime scene expert were significant. As he

testified, he was a 13-year veteran special agent for the FBI. For the five years

preceding the trial, he had been assigned to the FBI’s National Center for the

Analysis of Violent Crime (Center), a clearinghouse and pool of experts from

whom law enforcement agencies throughout the nation sought advice and

assistance. In conjunction with his position with the Center, Ankrom received two

years of intensive training in criminology and other academic topics and, more

specifically, was trained to review comprehensive information concerning crimes

and to perform a “criminal investigative analysis” of the case material for various

purposes, including to develop a profile of the perpetrator, to make

recommendations on interview strategy, and to give advice regarding “linkage”

between potential serial crimes.

Ankrom’s experience was based not only on his training but also on his five

years as an active agent who had been called upon to review comprehensive

information regarding hundreds of crimes and to offer expert advice to law

enforcement agencies whose investigations in these cases faced obstacles or had

failed to produce results. Ankrom’s experience included reviewing records related

to various serial homicide cases and conducting lengthy interviews with eight

convicted serial killers for the purpose of identifying evidence that would link the

crimes committed by each perpetrator. He had reviewed autopsy reports, police

reports, photographs, and other records for “well over a hundred” female homicide

victims who had been stabbed to death, and he testified that in his experience the

multiple deep, clustered stab wounds such as occurred in the present case were

unusual.

According to Ankrom, he and other agents at the Center analyze crime

evidence for “linkage” by looking for common methods of operation among

groups of crimes — that is, the methods used by the criminals to complete their

45

crimes and to achieve the intended murder, rape, or other crime. In addition to

identifying common methods among a series of crimes, the agents look for

signature elements — actions that were not necessarily involved in or necessary

for completing the crimes, but that served as distinctive common denominators

among the crimes.

Ankrom further testified that the San Diego Police Department contacted

the Center in early 1990 concerning the Schultz and Weinhold murders. Ankrom

reviewed autopsy reports, crime scene photographs, autopsy protocols, criminal

investigative reports, maps, and social histories of the victims. In April 1990, the

San Diego Police Department contacted him to report the Tarr murder. In

September 1990, that agency reported the Clark murders to him. At the request of

the San Diego Police Department, which relied upon his superior expertise in

crime scene analysis, Ankrom thereafter met personally with members of the San

Diego Police Department investigative team, reviewed the evidence with them,

and offered his advice. The department informed him in February 1991 of the

Keller murder.

Ankrom testified that it was his opinion that all six murders were

committed by the same person. During his analysis of the crimes, he noted certain

common features, as follows: The murders occurred in a small geographical area

of San Diego, the first three having occurred in adjacent apartment complexes.

Most occurred between 10 a.m. and 2 p.m., and they occurred in the victims’

residences. There was no mark of forced entry. The weapon used was a knife,

and the victims were White females. Beyond these features exhibiting a common

modus operandi, the crimes bore certain distinctive marks. In each murder except

that of Tarr, where the murder was interrupted, there were numerous stab wounds

that were tightly clustered in each victim’s chest and were extremely deep,

sometimes penetrating to the victim’s back. According to Ankrom, another

46

distinctive common denominator was the position of the victims when found.

They were lying on their backs, nude or in a state of partial undress, and seemed to

Ankrom to be positioned for display. The expert’s opinion that all the murders

were committed by the same person was “very firm.”

Defendant contends Ankrom’s testimony was inadmissible under state law

because it concerned matters that were not beyond the common experience of

jurors. He points out, for example, that jurors are charged with evaluating whether

similarities among charged and uncharged crimes suggest the same person

committed the crimes or that the perpetrator’s intent or motive was the same in

committing each crime. (Evid. Code, § 1101.)6 On the other hand, he urges,

expert opinion is restricted to subjects that are “sufficiently beyond common

experience that the opinion of an expert would assist the trier of fact.” (Evid.

Code, § 801, subd. (a), italics added.)

We apply an abuse of discretion standard in reviewing a trial court’s

decision to admit the testimony of an expert. (People v. Robinson, supra, 37

Cal.4th at p. 630.) The trial court obviously exercised its discretion in the present

case; it gave very careful attention to the issue, holding an extensive hearing,

engaging in discussion with counsel, and ultimately excluding any testimony

concerning the perpetrator’s probable state of mind, motive, or intent. We

conclude for a number of reasons that the trial court did not abuse its discretion in

the present case.

First, although ordinarily courts should not admit expert opinion testimony

on topics so common that persons of “ ‘ordinary education could reach a

6

We summarily reject defendant’s claim that the various charged crimes

were not sufficiently similar to have been admissible pursuant to Evidence Code
section 1101. That statute has no application to charged crimes.

47

conclusion as intelligently as the witness’ ” (People v. McDonald (1984) 37 Cal.3d

351, 367, disapproved on another ground in People v. Mendoza (2000) 23 Cal.4th

896, 914), experts may testify even when jurors are not “wholly ignorant” about

the subject of the testimony. (People v. McDonald, supra, 37 Cal.3d at p. 367.)

“If that [total ignorance] were the test, little expert opinion testimony would ever

be heard.” (Ibid.)

Rather, the pertinent question is whether, even if jurors have some

knowledge of the subject matter, expert opinion testimony would assist the jury.

(Evid. Code, § 801, subd. (a), People v. McDonald, supra, 37 Cal.3d at p. 367.)

We acknowledge that ordinarily jurors are equipped to examine crime

scene photographs and autopsy evidence and to form an opinion, in the context of

their own perception of the evidence in the particular case, whether the wounds

depicted are so similar they suggest the wounds were inflicted by the same

person.7

Notwithstanding the ability of jurors to review the evidence before them

and draw commonsense inferences, it may aid them to learn from a person with

extensive training in crime scene analysis, who has examined not only the

evidence in the particular case but has in mind his or her experience in analyzing

hundreds of other cases, whether certain features that appear in all the charged

crimes are comparatively rare, and therefore suggest in the expert’s opinion that


7

Contrary to the suggestion of defense counsel at oral argument that Ankrom

simply reviewed the same crime scene photographs reviewed by the jury, Ankrom
testified he also reviewed, both in the present case and the hundreds of other cases
he had analyzed, autopsy photographs, protocols from the autopsies, police
investigative reports (concentrating on the report of the officers who were first on
the scene), maps, background information concerning the victims, and the history
of crimes in the pertinent geographic locations.

48

the crimes were committed by the same person. A juror could assume that most

stabbing victims are found on their backs, or that tightly clustered six-and-a-half-

inch stab wounds to the chest are characteristic of murders by stabbing. In the

present case, however, Ankrom was asked whether in his extensive experience

“the tight clustered wound pattern, the depth of the wounds, in combination with

the women being found on their backs, is that distinct?” And he testified in

response: “It is. In my opinion it’s something that we would find in our review of

other cases to be a rare occurrence,” especially in conjunction with the additional

and consistent similarities in modus operandi he identified among the murders in

the present case. He added: “To see that the wound pattern takes place in that

exact spot repeatedly is something that is a distinct common denominator.” Under

these circumstances, we cannot conclude the testimony was of no assistance to

jurors who previously never had examined crime scene evidence other than the

evidence before them, nor can we conclude Ankrom’s evidence “ ‘ “would add

nothing at all to the jury’s common fund of information.” ’ ” (People v. Farnam

(2002) 28 Cal.4th 107, 163.)

Another basis for our conclusion that the trial court did not abuse its

discretion in admitting Ankrom’s testimony is that other courts have permitted

expert opinion testimony in comparable circumstances. Experts on the subject of

crime scene reconstruction, for example, ordinarily may be permitted to give

opinion testimony concerning such matters as the probable location where the

crime occurred, notwithstanding the jury’s ability to examine photographs,

coroner’s reports, and other evidence to form their own common sense

conclusions regarding the crime scene. (People v. Farnam, supra, 28 Cal.4th at

pp. 162-163.)

Perhaps even more to the point, courts have held an expert may testify

concerning criminal modus operandi and may offer the opinion that evidence

49

seized by the authorities is of a sort typically used in committing the type of crime

charged. An experienced police officer may testify as an expert, for example, that

tools discovered in a defendant’s automobile are of the type commonly used in

burglaries. (People v. Jenkins (1975) 13 Cal.3d 749, 755.) A police inspector

may explain that conduct such as that engaged in by the defendant constituted the

“usual procedure” followed in committing the crime of “till tapping.” (People v.

Clay (1964) 227 Cal.App.2d 87, 93; see also People v. Ochoa (2001) 26 Cal.4th

398, 438 [a detective with relevant training may furnish expert opinion concerning

the gang-related significance of the defendant’s tattoo]; People v. Gardeley (1996)

14 Cal.4th 605, 617 [the expert properly testified concerning the culture and habits

of criminal street gangs, opining on whether certain behavior constituted gang-

related activity]; People v. Martinez (2003) 113 Cal.App.4th 400, 413-414 [an

expert properly testified that a gang ordinarily will exact revenge upon a gang

member who reveals gang confidences]; People v. Gamez (1991) 235 Cal.App.3d

957 965 [based upon his expertise concerning the modus operandi of armed

robbers, an officer properly testified concerning the probable intent to commit

robbery exhibited by persons who acted as the defendants did].)

Federal cases have upheld the admissibility of testimony by a trained police

officer explaining “that a defendant’s activities were consistent with a common

criminal modus operandi.” (U.S. v. Webb (9th Cir. 1997) 115 F.3d 711, 713, and

cases cited; see also U.S. v. Cross (D.C. Cir. 1991) 928 F.2d 1030, 1050, and cases

cited; U.S. v. Espinosa (9th Cir 1987) 827 F.2d 604, 612.) Such modus operandi

“ ‘evidence helps the jury to understand complex criminal activities and alerts it to

the possibility that combinations of seemingly innocuous events may indicate

criminal behavior.’ ” (U.S. v. Webb, supra, 115 F.3d at p. 714.) Testimony

concerning criminal modus operandi may be helpful to the jury even if the modus

operandi is not particularly complex. (Ibid.; see also U.S. v. Hankey (9th Cir.

50

2000) 203 F.3d 1160, 1168-1169 [explaining the trial court’s duty to evaluate the

reliability of the evidence].)

In United States v. Rogers (9th Cir. 1985) 769 F.2d 1418, the court

determined that it was appropriate for an FBI agent to testify as an expert that of

the 1,800 robberies that had occurred in Los Angeles, only two were perpetrated in

a bank vault by a person wearing a bandana. The evidence was relevant to prove

that the two charged robberies were committed by the same person. The court

commented that it is settled “law enforcement officers may testify concerning the

techniques and methods used by criminals.” (Id. at p. 1425.) The court continued:

“The testimony as to the frequency of bandana wearing in Los Angeles area bank

robberies was relevant to the identity of the perpetrator of the robberies. The fact

that very few robberies involve this garb make it more likely that the same person

committed both robberies.” (Id. at p. 1426.)

One sister-state decision specifically extends the rule permitting

experienced officers to testify concerning criminal modus operandi to the topic of

expert opinion testimony on modus operandi admitted for the purpose of

establishing linkage among crimes. The Delaware Supreme Court concluded that

an FBI agent properly was permitted to testify as an expert regarding serial

murders, and that he properly could opine that the three charged murders were

committed by the same person. (Pennell v. State (Del. 1991) 602 A.2d 48, 55.)

The court determined that the expert had extensive and specialized experience

with signature crimes and crime analysis. (Ibid.) It added that the expert’s

testimony could assist the jury in understanding behavior “unknown to the general

public.” (Ibid.)

Respondent has acknowledged and brought to our attention one state court

decision reaching a different conclusion on so-called linkage evidence. In that

case, the defendant was prosecuted for murder and the state introduced evidence

51

of an uncharged rape and attempted murder. The prosecution called upon an

expert from the FBI to testify that the charged murder, which occurred in New

Jersey, and the uncharged attempted murder, which occurred in Maine (and during

which the defendant was apprehended), bore common marks in terms of their

modus operandi and their “ritualistic” elements, and that the same person

committed both crimes. The New Jersey Supreme Court determined that the

“linkage” evidence was inadmissible, reasoning that the expert’s opinion was

based upon behavioral science of doubtful and unproven reliability. (New Jersey

v. Fortin (N.J. 2000) 745 A.2d 509, 513-514.) The New Jersey court believed that

the “linkage” concept had not “attained such a state of the art as to have the

scientific reliability of DNA testing” (id. at p. 514), and there was no evidence it

was accepted in the scientific community or even that it could be tested outside the

FBI center where the theory had been developed. (Ibid.)

To the extent the New Jersey expert was offering testimony similar to

Ankrom’s, we believe the New Jersey court erred in comparing such testimony to

DNA evidence. In our view, that court applied an incorrect standard in searching

the “scientific community” for “peers to test [the expert’s] theories” and

“duplicat[e] his results.” (New Jersey v. Fortin, supra, 745 A.2d at p. 514.)

Ankrom’s testimony was based upon his extensive experience, not theories that

normally would be subject to peer review or that would be otherwise comparable

to DNA testing. (See U. S. v. Hankey, supra, 203 F.3d at p. 1169 [expert opinion

on gang culture is not examined for acceptance in the scientific community, nor

should it be subject to peer review]; see also Pennell v. State, supra, 602 A.2d at p.

55 [distinguishing FBI agent’s “linkage” testimony on the same basis].)8

8

We do not mean to imply that expert testimony based upon experience

rather than technical expertise is not subject to scrutiny for reliability. (See U. S.

(footnote continued on next page)

52

Defendant contends Ankrom’s testimony falls under a different line of

judicial decisions. He likens this testimony to “profile” evidence, which defendant

asserts must be excluded. A profile ordinarily constitutes a set of

circumstances — some innocuous — characteristic of certain crimes or criminals,

said to comprise a typical pattern of behavior. In profile testimony, the expert

compares the behavior of the defendant to the pattern or profile and concludes the

defendant fits the profile. (See People v. Robbie (2001) 92 Cal.App.4th 1075,

1084; see also People v. Smith (2005) 35 Cal.4th 334, 357, 358.)

The comparison is unavailing because, unlike profile evidence, Ankrom’s

testimony did not refer to defendant at all. We agree with the Delaware Supreme

Court, which in rejecting a claim that similar linkage testimony constituted

“profile” evidence, explained “ ‘Profile’ evidence is that which attempts to link the

general characteristics of serial murderers to specific characteristics of the

defendant.” (Pennell v. State, supra, 602 A.2d at p. 55, italics added.) The

testimony in that case indicating that three murder scenes bore such common

marks that, in the opinion of the expert, they suggested the crimes had been

committed by the same person did not seek to tie characteristics of serial

murderers to characteristics of the defendant. (Ibid.)


(footnote continued from previous page)


v. Hankey, supra, 203 F.3d at p. 1169 [exhaustively discussing trial court’s
gatekeeping responsibility]; U. S. v. Vesey (8th Cir. 2003) 338 F.3d 913, 916-917
[trial court erred in excluding the testimony of a defense expert, a convicted drug
trafficker, who would have testified concerning the usual practice in drug
transactions, and explaining scope of court’s discretion in assessing reliability];
Kaye, et al., New Wigmore Treatise on Evidence (2004) , Expert Evidence § 9.3.3,
pp. 323-325 [analyzing reliability requirement in light of Kumho Tire Co., Ltd. v.
Carmichael
(1999) 526 U.S 137].)

53

Significantly, Ankrom’s testimony did not evaluate defendant’s behavior

against a pattern or profile. Ankrom did not offer an opinion that he believed

defendant was the culprit, nor did he relate his findings to defendant at all.

Instead, he compared documentary evidence of the crime scenes in the present

case and, based upon his observation of common marks and his experience,

concluded the crimes had been committed by a single person. In any event, profile

evidence does not describe a category of always-excluded evidence; rather, the

evidence ordinarily is inadmissible “only if it is either irrelevant, lacks a

foundation, or is more prejudicial than probative.” (People v. Smith, supra, 35

Cal.4th at p. 357.) In sum, “[p]rofile evidence is objectionable when it is

insufficiently probative because the conduct or matter that fits the profile is as

consistent with innocence as guilt.” (Id. at p. 358.)

Defendant next claims that Ankrom’s testimony that he was confident the

same person committed all the crimes invaded the province of the jury and

constituted testimony concerning the ultimate issue of guilt or innocence. Having

argued the jury was perfectly capable of using common sense to determine

whether similarities at the crime scenes suggested all the crimes were committed

by the same person, defendant claims Ankrom’s testimony rendered the jurors

incapable of making such a determination. According to defendant, it was solely

the jury’s obligation to determine whether the asserted similarities among the

crimes warranted the inference that a single person had committed them. In

essence, defendant argues, the expert improperly rendered an opinion on guilt or

innocence in violation of Evidence Code section 800 and defendant’s right under

the Eighth and Fourteenth Amendments of the federal Constitution to reliable

factfinding in a capital case, and the admission of this testimony also constituted

an arbitrary deprivation of state procedural rights and to due process of law in

54

violation of the Fifth, Sixth, and Fourteenth Amendments of the federal

Constitution.

Despite the circumstance that it is the jury’s duty to determine whether the

prosecution has carried its burden of proof beyond a reasonable doubt, opinion

testimony may encompass “ultimate issues” within a case. Evidence Code section

805 provides that “[t]estimony in the form of an opinion that is otherwise

admissible is not objectionable because it embraces the ultimate issue to be

decided by the trier of fact.” (See People v. Valdez (1997) 58 Cal.App.4th 494,

597 [a gang expert testified that the defendant was a member of a particular gang

and that his activities were undertaken on behalf of the gang].)

Of course an expert’s opinion that a defendant is guilty is both unhelpful to

the jury — which is equally equipped to reach that conclusion — and too helpful,

in that the testimony may give the jury the impression that the issue has been

decided and need not be the subject of deliberation. But Ankrom did not testify

that defendant was guilty, nor did Ankrom tell the jury whom to believe or direct

the jury toward a specific conclusion on any element of the charged crimes. His

testimony did not mention defendant at all. Ankrom’s conclusion, based upon

special training and experience in evaluating the records of hundreds of crime

scenes, that he believed all the crimes were committed by the same person, did not

bind the jury, nor would Ankrom’s testimony be understood as essentially

directing a verdict. The court instructed the jury that they were the exclusive

judges of credibility (CALJIC No. 2.20), and that they were not bound by an

expert’s opinion, being free to accord the opinion the weight it deserves after

considering the basis for the opinion (CALJIC No. 2.80).

Defendant next contends Ankrom’s testimony constituted or closely

resembled improper “mathematical probability evidence” such as that disapproved

by this court in People v. Collins (1968) 68 Cal.2d 319. In that case, an expert

55

witness (a mathematics instructor) testified that there was a one in 12 million

chance that the defendants were not guilty. (Id. at p. 325.) An eyewitness had

observed some characteristics of the perpetrators, such as that they seemed to be a

White woman with a blonde ponytail accompanied by an African-American man

with a beard in a yellow automobile, and the expert used these assertedly

distinctive features to calculate the probability that a couple other than the

defendants could have met this description. This court reversed the judgment,

because the expert’s opinion testimony had no basis in the facts. For example, one

of the “factors” relied upon by the expert was the presence of a yellow automobile

at the scene, but there was no evidentiary basis for the expert’s bold assertion that

“one out of every ten cars which might have been at the scene of the robbery was

partly yellow.” (Id. at p. 327.) Further, there was no proof that the characteristics

selected for analysis were mutually independent — a necessary precondition to the

statistical operation known as the “product rule.” (Id. at p. 328, see also id. at p.

325 [the product rule “states that the probability of the joint occurrence of a

number of mutually independent events is equal to the product of the individual

probabilities that each of the events will occur” (italics & fn. omitted)]; see also

People v. Soto (1999) 21 Cal.4th 512, 525.) We found the error prejudicial,

because it distracted the jury from its task and encouraged jurors to rely upon “an

engaging but logically irrelevant expert demonstration.” (People v. Collins, supra,

68 Cal.2d at p. 327.)

The present case is distinguishable, because Ankrom’s testimony was not

cloaked in scientific garb but was expressed as a matter of professional experience

gained over a lengthy period of observation. Moreover, as defendant does not

deny, the facts relating to the charged crimes analyzed by Ankrom were well

established, and Ankrom did not employ a mathematical formula to add a specious

weight to his conclusion.

56

People v. Hernandez (1997) 55 Cal.App.4th 225 is of no assistance to

defendant. There a computer was used to search a police database respectively for

sex crimes committed in a restricted area prior to the defendant’s arrival in the

neighborhood, and for such crimes committed subsequent to his arrest and

incarceration. The search was directed at crimes that bore similarity to those with

which the defendant was charged. The prosecution’s argument was that the

absence of similar crimes in the database when defendant no longer was in the

neighborhood demonstrated that defendant likely was guilty. The reviewing court

reversed for lack of a proper foundation establishing that the data entered into the

computer was accurate and complete. (Id. at p. 240.)

By contrast, Ankrom analyzed multiple sources, including primarily his

own professional experience, in drawing the conclusion that the same person had

committed all of the charged murders. He did not rely upon the absence of

evidence shown by a system of data collection that might omit pertinent evidence.

Next defendant contends the trial court abused its discretion under

Evidence Code section 352 in permitting Ankrom to testify, asserting that the

probative value of the evidence was slight and the potential for undue prejudice

was great. He argues that the trial court arbitrarily violated the principles

underlying Evidence Code section 352, thereby denying him various constitutional

rights, including his right to due process of law under the Fifth and Fourteenth

Amendments to the federal Constitution, his right to a reliable penalty

determination pursuant to Beck v. Alabama (1980) 447 U.S. 625, and his rights

under the Fifth and Fourteenth Amendments to the presumption of innocence and

to the requirement that the prosecution meet its burden of proving defendant’s

guilt of the charged crimes beyond a reasonable doubt.

Defendant claims the evidence had slight probative value, because Ankrom

failed to recognize salient distinctive features in the various crimes and overstated

57

the evidentiary value of the asserted similarities. These claims go to the weight,

not the admissibility of the evidence. It was for defendant to expose the

weaknesses in the expert’s opinion on cross-examination — and defendant did so.

Nor do we see the overwhelming prejudicial impact posited by defendant. We do

not believe that Ankrom’s stature as an FBI agent employed at the special center

he described would cause the jury to abandon its function as factfinder, especially

in light of the guidance offered to the jury by the court’s jury instructions.

We also reject defendant’s various constitutional claims. At trial, defendant

objected to Ankrom’s testimony “based on the Fifth and Fourteenth Amendments

to the United States Constitution and analogous provisions of the California

Constitution.” Assuming, without deciding, that the points asserted by defendant

properly were preserved (see People v. Partida (2005) 37 Cal.4th 428, 433-434),

they are without merit for the same reasons that defendant’s state-law claims have

been rejected. (See People v. Ward (2005) 36 Cal.4th 186, 211.) As we have

concluded in past cases, “[a]pplication of the ordinary rules of evidence generally

does not impermissibly infringe upon a capital defendant’s constitutional rights.”

(People v. Kraft (2000) 23 Cal.4th 978, 1035.) Defendant has not persuaded us

that his case presents an exception to this rule.

Finally, defendant contends Ankrom’s testimony that the Center’s work had

exonerated an innocent person in the past violated defendant’s constitutional

rights. Defendant claims: “The jurors would have undoubtedly understood this

aspect of Agent Ankrom’s testimony as meaning that Ankrom’s unit reviewed

many thousands of homicide cases, and if they had found any others that were

similar to the crimes charged against [defendant], they would have surely brought

that to the attention of the appropriate authorities. Furthermore, the implication

was clear that such review would continue in the future, and if they discovered

after the present trial that somebody else was committing similar crimes, that

58

would be brought to the attention of the authorities. Thus, even if [defendant]

were wrongly convicted and sentenced to death, he would nonetheless be freed

before any execution occurred. [¶] . . . Thus, the jury was not merely encouraged

to rely on the Agent’s expertise to overcome their own doubts; in addition, they

were encouraged to rely on Agent Ankrom’s unit to discover and correct any error

they might make.” According to defendant, these circumstances deprived him of

the reliable factfinding that is required in capital cases under Caldwell v.

Mississippi, supra, 472 U.S. 320.

Defendant did not object on this basis during Ankrom’s testimony or

proffer the constitutional argument he has made in this court, and this aspect of his

claim therefore is forfeited. (People v. Partida, supra, 37 Cal.4th at pp. 433-434.)

In any event, we find no error. Defendant has not cited any rule of evidence that

would require the exclusion of such testimony, and his concerns about the effect

upon the jury of the testimony in question rest solely upon speculation.



3. Discovery

During discovery, the defense received a report prepared by Ankrom

regarding the investigation he conducted in the present case. The report expressed

the opinion the crimes were linked, citing considerable evidence and Ankrom’s

experience. The report also mentioned that FBI agents at the center maintained a

database of the various violent crimes that had been reported to them and that the

database (called the VICAP database) was designed to track serial killers. Of the

5,000 homicides in the database at the time of the present crimes, some involved

multiple stabbing deaths of female victims in their homes, but none were similar to

the signature aspects of the crimes charged in this proceeding.

The defense moved for discovery of the VICAP database, claiming it

formed one of the bases for Ankrom’s opinion and was critical to adequate cross-

59

examination. The prosecution responded that it lacked authority to disclose the

confidential VICAP database, that the request should be addressed to the FBI, and

that the prosecution had disclosed to the defense all material relating to the present

crimes that Ankrom had referred to in his report. After a hearing, the trial court

agreed that in the event Ankrom proposed to testify concerning the VICAP

database and the extent to which it provided a basis for his opinion, the defense

was entitled to examine the database record of the cases in which female murder

victims had been stabbed multiple times in their homes.

Ankrom responded that he would not testify concerning the VICAP

database and instead would base his trial testimony on his personal experience,

which the court had established was substantial. Agent Douglas agreed the

database results were not essential to support an opinion that the murders in the

present case were linked.

The court ruled that Ankrom would not be permitted to testify regarding the

VICAP database but stated it credited Ankrom’s testimony that his opinion would

not be based upon the FBI database.

The defense renewed the discovery request at the conclusion of Ankrom’s

testimony on direct examination, claiming Ankrom’s conclusion that the clustered

stabbing pattern in the present case was “in our experience a rare occurrence”

must have been based on a comparison of the present case with the cases in the

FBI database, and that discovery of that database was essential to permit adequate

cross-examination.

The court denied the motion, stating: “I don’t think it’s necessary for this

witness, or any other witness for that matter, to bring in each and every prior case

that one has examined in order to provide a fair opportunity to cross-examine that

witness.”

60

Defense counsel then cross-examined Ankrom, eliciting testimony that he

never had worked as a homicide investigator and never had been to a homicide

crime scene, and that he never had examined a map of the entire San Diego

County area and was not certain of the location of the sites of the murders within

the area. Defense counsel vigorously challenged the witness’s view that certain

elements of the crimes were similar and distinctive, asking him to compare the

present crimes with others in which the perpetrator left bizarre “signature” marks.

Under cross-examination, Ankrom conceded that another unsolved stabbing case

that occurred in San Diego County while defendant was in custody bore certain

similarities to the charged murders. Defense counsel himself then elicited the

information that the witness had consulted a large FBI database, and attempted

unsuccessfully to bring before the jury the circumstance that the defense had not

been provided access to that database. On inquiry by defense counsel, the expert

again expressed his opinion that the crimes were committed by a single person, but

that this opinion was not based on the database.

On appeal, defendant contends the trial court erred in denying his discovery

motion directed at the FBI database allegedly used by Ankrom (and Douglas) in

forming the opinion that all the murders charged in the present case were

committed by the same person.

Defendant claims the denial of discovery deprived him of fundamental

fairness because, he claims, it impaired his ability to cross-examine the expert as

to the basis for his opinion. Defendant also relies upon Evidence Code section

721, subdivision (a), which provides that “a witness testifying as an expert may be

cross-examined to the same extent as any other witness and, in addition, may be

fully cross-examined as to . . . (3) the matter upon which his or her opinion is

based and the reasons for his or her opinion.” Defendant’s argument is premised

upon the circumstance that an expert’s stated opinion is only as reliable as the

61

matter that forms the basis for his or her opinion. In the view of the defense, it

was “forced to accept the mere conclusions of the witness, without the materials

needed to test their strength.”

“The defendant generally is entitled to discovery of information that will

assist in his defense or be useful for impeachment or cross-examination of adverse

witnesses. [Citation.] A motion for discovery must describe the information

sought with some specificity and provide a plausible justification for disclosure.

[Citation.] The court’s ruling on a discovery motion is subject to review for abuse

of discretion. [Citation.]” (People v. Jenkins, supra, 22 Cal.4th at p. 953.)

The defense was not entitled to examine all the written records generated

during Ankrom’s career in order to be able to cross-examine him concerning his

own professional experience. (See People v. Roberts, supra, 2 Cal.4th 271, 299 [a

defendant’s right to confrontation was not violated by the court’s denial of a

request for discovery of the many sources of the expert’s gang expertise, including

conversations with inmates and other investigations].) Nor was the defense

entitled to challenge the basis for the expert’s opinion by examining him

concerning a database not relied upon by the expert.

Defendant disputes that Ankrom could have formed his opinion without

relying upon the database. He claims the distinctive marks identified by Ankrom

as the basis for his opinion were not truly distinctive, so that the only true basis for

Ankrom’s opinion must have been his mental comparison of the charged crimes

with all the other crimes in the VICAP database. We are not persuaded. At the

pretrial hearing on the admissibility of the expert’s testimony, the court credited

the expert’s claim that his opinion was not based upon the database, and Ankrom

had ample personal experience upon which to base his opinion.

With respect to defendant’s right of confrontation and cross-examination at

trial, defendant’s lack of access to the VICAP database did not impair his ability to

62

cross-examine the expert concerning the basis for his opinion, nor was it unfair to

permit the expert to testify without providing such access. The expert informed

the court that the database was not the basis for his opinion, and the court credited

this claim. Ankrom personally had reviewed records in more than 100 murder

cases in which a female victim was stabbed to death. The trial court acted well

within its discretion in concluding that Ankrom based his opinion upon his

personal experience in the field of crime analysis, and at trial Ankrom’s testimony

conformed to this expectation on the part of the trial court. Defendant cross-

examined the expert regarding his training and the scope of his experience, and

challenged the expert’s opinion by questioning him on the differences that existed

among the charged crimes. In addition, as the trial court noted, the defense could

have impeached the witness by presenting coroner’s testimony that the stabbing

wounds in each murder were distinctive.

Defendant contends that an arbitrary deprivation of state-created discovery

rights deprived him of due process of law, citing Hicks v. Oklahoma (1980) 447

U.S. 343, but he fails to identify any violation of such rights.9


9

Defendant claims the court at least should have conducted in camera review

of the FBI database in order to determine whether “due process and fundamental
fairness required making some of the materials available to the defense.” In
support he cites White v. Superior Court (2002) 102 Cal.App.4th Supp. 1, where
the appellate department of the superior court concluded the trial court did not
abuse its discretion in ordering an in camera hearing to determine whether the
defendant’s right to impeach the credibility of a peace officer, who investigated
allegations that the defendant assaulted a ward in a juvenile facility, should
overcome the Inspector General’s claim that disclosure would be against the
public interest. The appellate department simply determined that the trial court
had not abused its discretion, and certainly did not hold that an in camera hearing
should be held whenever a defendant seeks access to materials that he or she
believes provided a basis for an expert’s opinion.

63

Defendant also relies upon People v. Price (1991) 1 Cal.4th 324 for the

proposition that a defendant should be given “wide latitude in the cross-

examination of experts to test their credibility. [Citation] If a witness frustrates

cross-examination by declining to answer some or all of the questions, the court

may strike all or part of the witness’s testimony [and] . . . may decline to admit the

testimony in the first instance.” (Id. at p. 421.) In that case, we concluded the

court did not abuse its discretion in excluding the testimony of a defense witness

concerning prison gangs, because the expert was unwilling to identify the persons

he had interviewed for the study that formed the basis for his opinion. The court

was within its discretion in concluding that the expert’s unwillingness to disclose

would unduly impair cross-examination. (Ibid.) But in the present case, the

database that defendant wished to examine was not the basis for the witness’s

opinion.

Defendant contends that withholding access to the FBI database violated

his constitutional right to effective counsel, thus denying him the right to present a

meaningful defense, a fair opportunity to be heard, and the constitutional right to

reliable factfinding in a capital case. Defendant has not identified a state law or

constitutional right affording access to the FBI database, so his right to effective

counsel was not impacted. There was no denial of a state-created right; as we

have seen, defendant had the opportunity to present a meaningful defense and had

a fair opportunity to be heard with respect to the admissibility of the expert

testimony, and his inability to examine the expert concerning something the expert

denied considering as a basis for his opinion did not undermine the reliability of

the factfinding process.

Defendant invokes his right to compulsory process, claiming his lack of

access to the FBI database “depriv[ed] [him] of evidence clearly bearing on the

credibility of key prosecution witnesses.” In support, he cites Brady v. Maryland

64

(1963) 373 U.S. 83, Kyles v. Whitley (1995) 514 U.S. 419, and Pennsylvania v.

Ritchie (1987) 480 U.S. 39, 57-58. As these cases recognize, the prosecution must

disclose material exculpatory evidence to the defense. (See also In re Brown

(1998) 17 Cal.4th 873, 879 [discussing application of this principle to information

under the control of separate agencies that form part of the prosecution team]; In

re Sassounian (1995) 9 Cal.4th 535, 543-544 [discussing the right to disclosure of

evidence that would impeach a prosecution witness].) But the database is not part

of the record, and the record on appeal does not indicate there exists any material

or exculpatory evidence in the database. “As we have done in the past, ‘[b]ecause

defendant’s claim is dependent upon evidence and matters not reflected in the

record on appeal, we decline to consider it at this juncture.’ ” (People v. Jenkins,

supra, 22 Cal.4th at p. 952.)10

Finally, defendant claims that Ankrom’s testimony “encouraged the jury to

ignore any reasonable doubts” and to rely upon his expertise, while the denial of

defendant’s discovery request left the defense unable to “test the strength of the

bases of the witness’s conclusions.” The consequence, defendant claims, was that

the court “improperly lightened the prosecution’s burden of proof beyond a


10

To the extent defendant’s claim concerns pretrial discovery and is based

upon the confrontation or compulsory process clauses of the Sixth Amendment, it
is on a weak footing. “As we have previously observed, in light of the divided
views of the justices of the Supreme Court . . . it is not at all clear ‘whether or to
what extent the confrontation or compulsory process clauses of the Sixth
Amendment grant pretrial discovery rights to the accused.’ [Citations].” (People
v. Hammon
(1997) 15 Cal.4th 1117, 1126; see also People v. Gurule (2002) 28
Cal.4th 557, 592 [discussing the limits on a defendant’s constitutional right to
disclosure prior to trial]; People v. Anderson (2001) 25 Cal.4th 543, 577, fn. 11
[“the high court has never held that the confrontation clause requires more than the
opportunity to ask the witness questions pertinent to his or her credibility” (italics
omitted)]; Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1134-1135.)

65

reasonable doubt.” We reject this claim, having determined that Ankrom properly

was permitted to testify as an expert and that defendant had an adequate

opportunity to challenge the basis for Ankrom’s opinion.



4. Admissibility of evidence of defendant’s statements

Defendant contends the trial court abused its discretion in permitting the

testimony of Robin and Robert Romo and Ernest Tu’ua recounting defendant’s

incriminating statements.

a. The Romos’ testimony

Robin Romo testified she resided in an apartment in the Buena Vista

Gardens complex with her husband Robert and a roommate, Tony. Defendant

visited her home weekly, partly to see her roommate, with whom he worked out in

the gym on an almost daily basis. Within one or two days after the murder of

Holly Tarr, defendant visited her. Robin Romo informed him of Tarr’s murder,

and he said “Yes, I remember. I was at the pool. I saw her leaving.” Defendant

did not explain how he had recognized Tarr prior to the publicity surrounding her

murder. One or two days later, defendant visited again while Robin’s husband and

two other persons were present. Robin testified that defendant told them “that he

had gone out on a date with this woman and was taking her home. He knew that

she wanted him. When they got there she had changed her mind and said that he

was crazy. And so he forced himself on her. Then when he was done, got up,

turned around, she was crying, so he said he went back and did her again, got

dressed and left.”

Robert Romo testified that defendant had discussed his relations with

women and had said something about a girl crying. Defendant may have

mentioned “slapp[ing] her around.” In sum, “he was leaving some girl, she was

crying and she had said something to him. He had said that he went back to her,

66

did her again.” According to Robert, defendant was graphic and vulgar in

describing his relations with women.

David Holden, who was an acquaintance of defendant’s early in 1991,

testified that defendant told him he had met a girl named Janene and had worked

out with her at a club. Defendant told Holden that he had gone to the woman’s

home and had sex with her on one or two occasions, but that he could not continue

the relationship because the woman was married.11

Prior to trial, defendant objected to the admission of the incriminating

statements he made to Robin Romo, citing the corpus delicti rule and Evidence

Code sections 352 and 1101, as well as the Fifth and Fourteenth Amendments to

the United States Constitution and parallel provisions of the California

Constitution. Defendant’s theory was that the statement admitted the commission

of another rape (not the rape of Janene Weinhold), that a corpus delicti had not

been established for the other rape, that the uncharged rape constituted improper

bad character evidence under Evidence Code section 1101, and that this evidence

should have been excluded under Evidence Code section 352 as more prejudicial

than probative. The superior court (Wellington, J.) determined that circumstantial

evidence tied defendant to the rape of Weinhold, and that defendant’s admission

was relevant to prove that defendant had raped Weinhold. The court declared:

“By itself, unsupported by the rest of the evidence, it would be pretty unpersuasive

and perhaps inadmissible; but in context with the rest of it, frankly, it is my

impression that it is a substantial and significant point.” In the court’s view,


11

Defendant mentions this evidence, but it is difficult to determine whether

on appeal he is challenging the admission of Holden’s testimony. Any claim of
error is forfeited, because defendant did not object to this testimony at trial. (Evid.
Code, § 353; People v. Marks (2003) 31 Cal.4th 197, 228.)

67

defendant’s claim that the connection to the Weinhold murder was too tenuous to

make this evidence admissible went to the weight of the evidence, not its

admissibility. When the case was transferred to the trial court, Judge Hayes

adopted Judge Wellington’s comments and rulings, adding that the evidence did

not constitute bad character evidence under Evidence Code section 1101, because

it related to a charged crime.

At trial (after Robin Romo and David Holden already had testified),

defendant objected to the admission of Robert Romo’s testimony on the same

grounds raised with regard to Robin Romo’s testimony, emphasizing that Robert’s

testimony should be excluded as character evidence barred by Evidence Code

section 1101, that it was cumulative to Robin’s testimony, and that it was unduly

prejudicial. The court thereafter ordered the witness to be examined outside the

presence of the jury, warning him not to refer to defendant’s statement that he had

tied up a woman and not to volunteer any information. Defendant renewed his

objection under Evidence Code section 352. The court responded that the

evidence was relevant and that its probative value outweighed its prejudicial

impact, overruling the objection on the same basis upon which it earlier had ruled

on the admissibility of Robin Romo’s testimony.

Defendant contends the statements made by Robin Romo were of slight

probative value, because they were made some seven weeks after Weinhold’s

murder, they did not identify the woman to whom defendant referred in his

admission, there was no evidence defendant had a consensual dating relationship

with Weinhold, the statement’s reference to a “date” seems inconsistent with a

midday murder, and the statement was ambiguous. On the other hand, defendant

argues, the prejudicial impact of the evidence was great because it suggested

defendant had a “disposition to sexually assault women” and, he claims, the

evidence was used in the prosecutor’s closing argument to just that effect.

68

We examine the court’s action for abuse of discretion (People v. Rowland

(1992) 4 Cal.4th 238, 264) and conclude that the court did not abuse its discretion

in denying defendant’s Evidence Code section 352 motions to exclude the Romos’

testimony. Contrary to defendant’s claim, this testimony had a “tendency in

reason to prove or disprove any disputed fact” (Evid. Code, § 210), namely that he

had raped Weinhold in the weeks prior to his conversation with the Romos.

Defendant was linked to the crime by the DNA evidence, his statement to Holden

that he had been dating a woman named Janene, and the testimony of Weinhold’s

neighbor that she had observed defendant sitting on the stairs leading to

Weinhold’s apartment. Indeed, as the trial court observed, the statements

defendant made to the Romos had considerable probative value. Further, these

statements were admissible even if they were not “clear and unambiguous”

admissions, and even though they did not include any admission of the murder.

(People v. Kraft, supra, 23 Cal.4th at p. 1035). Contrary to defendant’s claim, the

statements did not constitute evidence of other crimes reflecting negatively on

defendant’s general character — their reference was to a charged crime.

Defendant contends the court did not expressly weigh the prejudicial

impact of the evidence against its assertedly slight probative value. Although the

record must “affirmatively show that the trial court weighed prejudice against

probative value” (People v Padilla (1995) 11 Cal.4th 891, 924, disapproved on

another point in People v. Hill (1998) 17 Cal.4th 800, 822-823, fn. 1), the

necessary showing can be inferred from the record despite the absence of an

express statement by the trial court. (Ibid.) The record indicates the court gave

careful consideration to defendant’s claims at hearings held outside the presence

of the jury. The court considered an offer of proof as to the anticipated testimony

of Robert Romo and excluded certain damaging elements of the witness’s

statements from evidence. The court referred to the high probative value of the

69

evidence, and we properly may infer that the court determined that the probative

value outweighed any undue prejudice.

Defendant contends the trial court also erred in its ruling admitting Robert

Romo’s testimony for the reason that this testimony was cumulative and added

highly prejudicial matter through Romo’s volunteered statement that he “didn’t

know if he slapped her around” and that defendant’s conversation was so “vulgar

and graphic” that Romo left the room. The circumstance that defendant may have

“slapped around” a woman who may have been one of the murder victims was

relevant to the rape charge, and the defense could cross-examine the witness on

this point. The reference to vulgar and graphic conversation simply described the

tone of the conversation and was of negligible prejudicial impact.

b. Tu’ua’s testimony

In June and July of 1990, Ernest Tu’ua was defendant’s supervisor at Expo

Stucco Products. Tu’ua testified that defendant told him he was having sex with a

mother and her daughter, using the term “doing” to indicate sexual relations.

Defendant told him the mother was a massage therapist. Defendant said he was

able to manipulate the daughter and play “mind games,” disrupting the close

relationship between the mother and the daughter.

Defendant objected on the basis of relevance and Evidence Code section

352, and renews those claims in this court. We conclude the trial court was within

its discretion in finding the evidence relevant and determining that its probative

value was not outweighed by its prejudicial impact. The evidence tied defendant

to the subsequent murders of Pamela and Amber Clark. The two victims were

mother and daughter, and Pamela was a massage therapist. In light of the other

evidence demonstrating defendant’s modus operandi and planning activity, the

circumstance that the murders occurred some weeks subsequent to the

70

conversation does not eliminate the probative value of the conversation. The

circumstance that defendant presented evidence that he had patronized another

massage therapist, Gayle Sovinee, during this period, did not render Tu’ua’s

testimony irrelevant — it was for the jury to determine whether to believe that the

massage therapist to whom defendant referred in his conversation with Tu’ua was

Pamela Clark or Sovinee. (Sovinee did not have a daughter and testified she

treated defendant on only one occasion and did not date him.)

Having contended the Romo and Tu’ua testimony was without probative

value and was irrelevant, and that its prejudicial impact far outweighed its

probative value under state law, defendant also claims the admission of the

testimony constituted an arbitrary deprivation of state-guaranteed rights in

violation of the Fifth and Fourteenth Amendments to the United States

Constitution, citing Hicks v. Oklahoma, supra, 447 U.S. 343. He adds that the

admission of this testimony denied him the right to a reliable verdict under the

Eighth Amendment and Beck v. Alabama, supra, 447 U.S. 625, 638, footnote 13,

and Woodson v. North Carolina, supra, 428 U.S. 280.

Application of the ordinary rules of evidence generally does not

impermissibly infringe upon a capital defendant’s constitutional rights. (People v.

Kraft, supra, 23 Cal.4th at pp. 1035-1036.) The trial court did not err under state

law, and defendant does not provide any persuasive reason for us to conclude that

the application of California’s rules of evidence violated his constitutional rights,

nor does he establish any basis for concluding that the admission of this evidence

rendered the jury’s death penalty verdict unreliable.



5. Exclusion of Tiffany Schultz’s statements concerning conflict

with her boyfriend

Christopher Burns testified as a prosecution witness. He was Tiffany

Schultz’s boyfriend. The couple shared a two-bedroom apartment with another

71

man, Daniel Ganss. Burns testified that when he left for work on the day of

Schultz’s murder, she was still in bed. Burns returned from work at approximately

5:30 p.m. He testified that he believed the front door was locked. Schultz’s towel,

some suntan oil, and the top of her swimsuit were on a lawn chair located by the

front door, and the rear screen door and sliding glass door were open. Ordinarily,

the sliding door was left open if someone was home, but the screen was kept

closed. The door to Ganss’s room was closed. Burns departed for a 6:15 p.m.

appointment at a tanning salon. He returned home after 7:00 p.m., straightened up

the apartment, and prepared some food. Ganss returned home and Burns, having

become worried, asked him if he knew where Schulz was. When Ganss opened

his bedroom door, the two men discovered her body. Law enforcement officers

arrested Burns for the murder but released him three days later.

Prior to trial, anticipating that the defense would seek to use certain

evidence either in cross-examination of Burns or in its case-in-chief, the

prosecution filed an in limine motion seeking exclusion of police reports of the

statements of six witnesses who were acquainted with Schultz. The declarants had

informed law enforcement officers that Schultz had made statements to them

asserting that Burns had struck her and threatened her with a knife, that the couple

had furious arguments over Schultz’s employment as an exotic dancer, and that

Burns enjoyed pornography. The prosecutor asserted that during the trial, he

would not examine Burns concerning his relationship with Schwartz, leaving the

topic unavailable for cross-examination. The prosecutor contended that the six

statements constituted inadmissible hearsay, adding that defendant lacked

evidence to demonstrate third party culpability that would be admissible pursuant

to People v. Hall (1986) 41 Cal.3d 826, 833 (Hall), in which we declared that

otherwise admissible evidence of third party culpability should be admitted if it is

“capable of raising a reasonable doubt of [the] defendant’s guilt.”

72



Defendant, for his part, filed a motion “in support of admissibility of out-

of-court statements made by Tiffany Schultz.” Specifically, the motion sought an

order permitting counsel to cross-examine Burns “regarding certain out-of-court

statements made by Tiffany Schultz shortly before her death.” The motion relied

in part upon the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution and parallel provisions of the state Constitution. Defendant claimed

primarily that he should be permitted to use the statements for the purpose of

attacking Burns’s credibility, but added that if the court determined the statements

were being offered for their truth, they then would be admissible as evidence of

third party culpability. (Although at times defendant’s position has been unclear,

the record requires that we reject respondent’s claim that the defense did not seek

admission of the statements as evidence of third party culpability.) Defense

counsel also sought permission to examine Burns concerning his relationship with

Schultz. In support of his motion, defendant proffered investigative reports by the

San Diego Police Department memorializing police interviews with the six

persons in question.12

12

The police treated Burns as a suspect for a brief period and interviewed

witnesses in January of 1990. Defendant proffered written reports of six of these
interviews. (1) Ann Cappiello told an officer that she knew Schultz well and also
knew Burns. Cappiello informed the officer that Schultz told her she was unable
to join in a social event “because she was having problems with Chris. Tiffany
couldn’t speak with me until Chris went into the shower. Tiffany said that Chris
didn’t agree with her working [as an exotic dancer] at Les Girls . . . .” Cappiello
informed the officer: “I found Tiffany to be depressed and in tears due to their
living arrangements. They had some argument about some Playboy type books
that Chris had in the apartment. The books made Tiffany question herself.
Tiffany never mentioned any physical violence.” (2) Kelly Finn testified that
Schultz informed her on January 10, 1990, that the couple argued over Schultz’s
employment at Les Girls. “She told me they had a fight, he was threatening her
with something, I don’t know with what. After he threw his temper [tantrum], he
left the house abruptly and slammed the door. It was after he left she called me.

(footnote continued on next page)

73

After a hearing at which counsel and the court analyzed the statements both

with regard to their admissibility in cross-examination and as evidence of third

party culpability, the court commented: “I don’t see them [the statements] as so

inherently trustworthy that I ought to make my own exception to the hearsay rule.

The things people say in the middle of difficult emotional entanglements are, I

think, historically not the kinds of things that are necessarily reliable.”

The court also commented that the defense planned to use the statements as

evidence of third party culpability but that the statements showed only motive.

The court predicted that defense examination of Burns regarding the statements


(footnote continued from previous page)


She was scared and wanted to get out of the apartment.” Schultz told Finn she
believed Burns would kill her if she didn’t quit her job. This was not the first time
Finn had heard of such arguments. The witness informed the police of Schultz’s
statement that she and Burns had a “rough” sex life that included bondage. Burns
was a very jealous person, and Schultz told Finn that Burns had struck her about
three and one-half weeks previously. Finn herself had seen bruises on Schultz’s
body that Schultz attributed to Burns’s violence. Schultz told Finn that Burns had
told her (Schultz) he would kill her if she did not quit her job, and that he had
threatened her with a knife. (3) Susan Franco told the investigating officer that
Schultz had confided in her on several occasions regarding problems with Burns.
Burns did not want her to dance at Les Girls and was withholding sex from
Schultz, who felt ugly and insecure as a consequence. There was no mention of
violence. The conversation occurred on January 11 or 12, 1990. (4) Daniel
Ganss, the couple’s roommate, did not report any violence or complaint of
violence in the home. Schultz was upset that Burns did not desire her. Burns
mentioned some bondage incident, which embarrassed Schultz. (5) Beth Ann
Maupin testified that Schultz confided in her during the week preceding her
murder, stating that she and Burns were having problems, that Burns did not want
her to work at Les Girls, and that the couple had engaged in some bondage that got
too rough for Schultz. The witness did not mention any statements concerning
other violence. (6) Peggy Maupin said that Schultz had told her that she and
Burns were having sexual problems, that Burns did not want her to dance at Les
Girls, and that he was jealous.

74

would create a “side show” without producing evidence of any reasonable

probative value. Defense counsel stated that he also wished to use the statements

for the purpose of impeaching Burns’s credibility, but the court questioned why it

was even significant for the defense to discredit Burns. The court asked: “What

evidence is he giving that you disagree with and need to impeach by showing that

he’s got a motive to lie?”

The court (Wellington, J.) issued a written ruling denying the defense

request on hearsay grounds and also declaring: “This motion is actually broader

than its title suggests, and includes requests to cross-examine Schultz’s boyfriend,

Chris Burns, in an effort to show that he, not defendant killed Schultz. At

argument counsel indicated that he is not ready to make an offer of proof

regarding third party culpability. When he is (before trial) he will bring this matter

back before us for examination. [¶] Finally, should Mr. Burns be called as a

witness, defendant should at least be entitled to show, on cross-examination, that

Burns had been a suspect in the Schultz killing. This, at least arguably, shows a

motive to see defendant convicted.”

Immediately prior to the prosecutor’s opening statement to the jury, the trial

court (Hayes, J.) confirmed Judge Wellington’s order and invited the defense to

make an offer of proof of nonhearsay evidence that would be admissible to

establish third party culpability, and the defense answered that it was not ready to

do so.

When the guilt phase was nearing its conclusion, the trial court questioned

defense counsel concerning potential third party culpability evidence, noted that

the court would adhere to its earlier ruling concerning the admissibility of the

statements, and declared that “we weren’t going to be hearing testimony on that in

the absence of some offer of proof” consistent with Hall, supra, 41 Cal.3d 826.

75

Defense counsel responded: “Right now, our witness list, we won’t need to

address that issue.”

Defendant did not make any further offer of proof in support of the

admission of evidence demonstrating third party culpability.

On appeal, defendant contends fairness demanded that the statements

recounted by the six acquaintances of Schultz in their interviews with the police be

admitted as evidence of third party culpability under Hall, supra, 41 Cal.3d 826,

despite their character as hearsay. He relies upon Chambers v. Mississippi (1973)
410 U.S. 284 and Green v. Georgia (1979) 442 U. S. 95. He claims a violation of

his right to present a defense, to confront and cross-examine the witnesses against

him, and to a fundamentally fair trial. He also claims that without this evidence

the verdict was unreliable within the meaning of the Eighth Amendment to the

United States Constitution.13

We review the trial court’s ruling for abuse of discretion. (People v.

Robinson, supra, 37 Cal.4th at p. 625.) We are not persuaded that exclusion of the

out-of-court statements constituted a violation of the right to present a defense or

to confront and cross-examine witnesses. Even if the evidence had not been

excludable as hearsay, the trial court did not abuse its discretion in excluding it,

because defendant failed, despite several invitations from the court, to make an

offer of proof that was adequate under Hall, supra, 41 Cal. 3d 826, in support of

his theory that the defense possessed evidence demonstrating that Burns was the

person who murdered Schultz.


13

Respondent is mistaken in asserting that defendant failed to make such a

constitutional claim below.

76

“[T]hird party culpability evidence is admissible if it is ‘capable of raising a

reasonable doubt of [the] defendant’s guilt,’ but . . . ‘[w]e do not require that any

evidence, however remote, must be admitted to show a third party’s possible

culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in

another person, without more, will not suffice to raise a reasonable doubt about a

defendant’s guilt: there must be direct or circumstantial evidence linking the third

person to the actual perpetration of the crime.’ ” (People v. Robinson, supra, 37

Cal.4th at p. 625, quoting Hall, supra, 41 Cal.3d at p. 833).) “[I]n making these

assessments, ‘courts should simply treat third-party culpability evidence like any

other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its

probative value is substantially outweighed by the risk of undue delay, prejudice

or confusion [citation].’ ” (People v. Robinson, supra, 37 Cal.4th at p. 625, italics

added, fn. omitted.)

As the trial court found, contrary to the guidelines we provided in Hall,

supra, 41 Cal.3d 826, the statements proffered by defense counsel did not directly

or circumstantially connect Burns to the actual commission of the crimes. The

statements demonstrated no more than motive. (See People v. Gutierrez (2002) 28

Cal.4th 1083, 1137 [noting cases holding “mere evidence of third party’s anger

toward victim was insufficient,” and “third party’s possible motive alone

insufficient to raise reasonable doubt of defendant’s guilt”].) Indeed, defense

counsel himself seemed to recognize he had not made a sufficient offer of proof.

The trial court also appropriately determined that the probative value of the

evidence was slight, whereas its potential for delay and confusion of issues was

great. Under the circumstances, the court did not err in excluding this evidence.14

14

As noted above, Burns’s testimony at trial merely related Schultz’s

whereabouts on the morning of her death and described the discovery of her body.

(footnote continued on next page)

77

As we have done in similar cases, “[w]e . . . reject defendant’s various

claims that the trial court’s exclusion of the proffered evidence violated his federal

constitutional rights to present a defense, to confront and cross-examine witnesses,

and to receive a reliable determination on the charged capital offense. There was

no error under state law, and we have long observed that, ‘[a]s a general matter,

the ordinary rules of evidence do not impermissibly infringe on the accused’s

[state or federal constitutional] right to present a defense.’ ” (People v. Robinson,

supra, 37 Cal.4th at pp. 626-627, quoting People v. Hall, supra, 41 Cal.3d at

pp. 833-834 [referring to third party culpability evidence]; see also People v.

Yeoman (2003) 31 Cal.4th 93, 141 [rejecting a claim based upon Chambers v.

Mississippi, supra, 410 U.S. at p. 302 in a similar context].)

Defendant next contends the prosecutor committed misconduct by

suggesting in his closing argument to the jury that there was no evidence of any

discord between Schultz and Burns. The prosecutor observed: “Let’s go

chronologically, if we may, starting off with the murder of Tiffany Schultz.

You’ve heard evidence about Buena Vista Gardens. You heard the evidence when

the defendant moved in. It was approximately three weeks after he moves in that

Tiffany Schultz is dead, she has been murdered. [¶] She’s living there with her

boyfriend, Christopher Burns. She was a young student. There is absolutely no

evidence prior to her murder that anything was amiss. In Buena Vista Garden[s]


(footnote continued from previous page)


The testimony was of slight importance, because Ganss and the physical evidence
confirmed what he had to say. To the extent defendant’s claim is based upon the
limitations the court placed on his ability to challenge Burns’s credibility, any
error would be harmless under any standard.

78

apartments, you heard some evidence about a burglary, but as soon as Mr. Prince

moves in, we have a series of murders starting off with Tiffany Schultz.”

Defendant forfeited his present claim of prosecutorial misconduct by failing

at trial to object and seek an admonition (People v. Welch (1999) 20 Cal.4th 701,

753), but in any event, the prosecutor’s argument did not contain the suggestion

attributed to it. This is apparent from the context in which the prosecutor’s

statement was made; his point related to the comparative state of affairs at the

Buena Vista Gardens apartments before and after defendant moved there.

Accordingly, we reject defendant’s claim on the merits.



6. Hughes-Webb testimony

Leslie Hughes-Webb testified that defendant accosted her at the door of the

home where she was staying and forced his way in. After a struggle, she knocked

him over and fled. She identified defendant at a live lineup and at trial. At the

preliminary hearing she testified a woman who had participated in the lineup told

her she had identified another person and that the other woman’s certainty had

caused Hughes-Webb to question her own identification somewhat. During her

trial testimony, defense counsel cross-examined her concerning this source of

uncertainty in her identification. Specifically, after the lineup, Hughes-Webb and

another woman who had participated in the lineup were given a ride home in a

patrol car. The other woman said repeatedly how certain she was of her

identification, specifying whom she had identified. Defense counsel asked

Hughes-Webb whether she was aware that the other woman had identified a

person other than defendant.

The prosecutor objected on the ground that the other woman’s statement as

to which man she had identified was irrelevant and constituted hearsay. The trial

court sustained the objection on hearsay grounds, adding that defense counsel

79

could question Hughes-Webb concerning her own state of mind after the live

lineup, including whether the other woman had said something to give her pause.

The court directed the jury to disregard the question concerning the other

woman’s possible identification of another individual. Under further cross-

examination, Hughes-Webb testified she had been in a police car with the other

woman, who had talked a great deal and “quite emphatically about her conclusion

and feelings.” The other woman’s comments caused Hughes-Webb to hesitate

about the accuracy of her own identification. Hughes-Webb “wanted to believe

that [she] didn’t pick him” and informed the police detective who was driving her

and the other woman that she felt some “uncertainty and hesitation.”

Statements made by the out-of-court declarant to whom Hughes-Webb

referred properly were excluded as hearsay, to the extent they were offered for the

truth of the declaration. To the extent they were admissible as describing Hughes-

Webb’s state of mind, the court excluded the statements because it feared the jury

would be unable to avoid considering them for their truth, despite the absence of

any evidence establishing the reliability of the identification made by the other

woman. Reviewing these evidentiary rulings for abuse of discretion (see People v.

Robinson, supra, 37 Cal.4th at p. 625), we uphold them. Defendant had an

adequate opportunity to establish that the declarant said something that caused

Hughes-Webb to doubt her own identification. If defendant sought to establish

that one of the surviving victims or other witnesses positively had identified

someone other than himself, defendant could have subpoenaed and examined the

woman as a defense witness. Even if the court erred in excluding the proffered

evidence, such error would have been harmless under any standard of review,

80

because the court permitted the defense to question the witness to establish that

she had doubted the accuracy of the identification she had made.15

Defendant unpersuasively claims the court’s ruling denied him his

constitutional right to put on a defense, to confront and cross-examine the

witnesses against him, and to a fundamentally fair trial and reliable determination

of guilt. He also asserts that the ruling constituted a denial of due process of law

by arbitrarily depriving him of crucial evidence. There was no error under state

law, and as noted above, “ ‘[a]s a general matter, the ordinary rules of evidence do

not impermissibly infringe on the accused’s [state or federal constitutional] right

to present a defense.’ [Citations.]” (People v. Robinson, supra, 37 Cal.4th at pp.

626-627, fn. omitted.) Furthermore, as we have noted, even if the evidence should

have been admitted, its exclusion would have been harmless under any standard.



7. Evidence of defense counsel’s participation in the lineup

Defendant contends he was deprived of his federal and state constitutional

rights to the effective assistance of counsel, to a fair trial, and to reliable

factfinding when the trial court failed to “protect him” during the course of

testimony given by Jaime Bordine, the homicide detective who conducted the live

lineup. Bordine testified that defense counsel were present at the lineup and

implied that they had approved the composition of the lineup and selected

defendant’s placement in it.


15

Defendant notes that Hughes-Webb stated on cross-examination that when

she informed the officer who was driving the patrol car of her doubts, he said she
“would know when she saw the evening news.” Defendant contends this
statement constituted a suggestive identification procedure, citing Simmons v.
United States
(1968) 390 U.S. 377, 384.) Defendant has forfeited this claim
because he did not raise it below.

81

Defendant contends that by introducing testimony that defense counsel

were present at the lineup and had selected defendant’s placement, the prosecution

“effectively us[ed] his attorneys as witnesses against him,” thereby violating his

right to counsel. He claims that the “effect of [the] testimony was an unmistakable

implication that counsel were given every opportunity to assure that the lineup was

fair, and that they approved the conduct of the lineup and the resulting

identifications. The resulting prejudice to him was no different than it would have

been if counsel had been called as witnesses and had testified that they had been

present, that they had been consulted regarding the adequacy of the other lineup

participants, and that they had made the decision where their client should be

placed.” Defendant blames the prosecutor for asking these questions and the court

for failing to “protect” him.

As respondent points out, defendant did not object to Bordine’s testimony

on any of the bases mentioned in the present claim; indeed, he did not object at all

during the prosecution’s direct examination. Accordingly, his claim is forfeited.

(See People v. Cooper, supra, 53 Cal.3d at p. 824.) Moreover, it is not improper

for counsel for either side to inquire into the circumstances surrounding a lineup,

including the presence or absence of counsel. (People v. Citrino (1970) 11

Cal.App.3d 778, 783; see also Cal. Criminal Law: Procedures and Practice

(Cont.Ed.Bar 2006) Lineups and Identification, § 22.29, pp. 599-600.)

Defendant asserts the court had a duty to protect him from what he views as

an incursion upon his right to counsel, even though counsel failed to object. He

cites People v. Rodriguez (1981) 115 Cal.App.3d 1018, but that case is of no

assistance to him. Rodriguez was charged with robbery, and his defense at trial

was based on mistaken identity and the asserted suggestiveness of the police

identification procedures. Among other subjects, defense counsel cross-examined

the identifying witnesses and the arresting officer concerning the manner in which

82

the lineup was conducted and the appearance of the participants. On redirect

examination, the prosecutor asked the officer whether defense counsel, who was

present at the lineup, had said: “ ‘That was not a bad lineup’ or ‘It’s not bad.’ ”

(Id. at p. 1020.) The court sustained a hearsay objection, but the prosecutor called

defense counsel as a witness, and the court ordered him to testify. Defense

counsel ultimately withdrew any objection and testified, confirming that he had

made the statement attributed to him by the arresting officer.

Under these circumstances, the Court of Appeal determined that the trial

court had failed to protect defendant’s right to effective assistance of counsel when

it ordered defense counsel to testify against his client on a question that was

material to the defense. Indeed, the court found that the question “completely

undercut” the misidentification defense, because it “bolstered the eyewitnesses’

identifications.” (People v. Rodriguez, supra, 115 Cal.App.3d at p. 1021.) The

proceedings undermined the attorney’s effectiveness and, the reviewing court

stated, would cause the jury to be suspicious of his other efforts on defendant’s

behalf. “The jury can hardly avoid inferring the defendant’s own attorney does

not believe in the defense he himself is presenting. It is fundamentally unfair to a

criminal defendant to use his own attorney’s testimony to convict him, and such a

substantial infringement on the right to counsel requires reversal. [Citations].”

(Ibid.)

In the present case, the trial court did not make any incursion on

defendant’s right to counsel. It did not order defense counsel to testify.

Moreover, the defense did not ask the jury to find that the composition of the

lineup had been suggestive, so the evidence of counsel’s presence at the lineup did

not undercut defense counsel’s credibility or ability to pursue a defense of

mistaken identification. Rather, the defense stressed that numerous witnesses

were unable to identify defendant at the live lineup, and that the witnesses’

83

subsequent identifications were the result of suggestion, primarily from the media

coverage that displayed defendant’s picture for the first time subsequent to the live

lineup.

Defendant contends we must address his claim despite trial counsel’s

failure to object, because the court and the prosecutor rendered the trial

fundamentally unfair in violation of defendant’s federal constitutional right to due

process of law. He cites Darden v. Wainwright (1986) 477 U.S. 168. There the

high court determined that a prosecutor’s improper remarks infected the entire trial

with such unfairness that the resulting conviction constituted a denial of due

process. (Id. at p. 181.) We have responded to similar claims by observing that to

preserve such an issue on appeal, ordinarily the defendant must object and request

an admonition. (People v. Frye (1998) 18 Cal.4th 894, 969.) In any event, the

present case is not comparable to Darden v. Wainwright, supra, 477 U.S. 168.

The prosecutor’s questions did not infect the entire trial with unfairness, just as

they did not violate defendant’s right to counsel. Nor has defendant established

that the court’s failure to “protect” him rendered the verdict unreliable in violation

of the Eighth Amendment.



8. Admissibility of knives

Defendant contends the trial court abused its discretion under state law and

violated various of his constitutional rights by admitting into evidence four knives

that police seized from defendant’s automobile upon his arrest in the Miramar

Road Family Fitness Center parking lot. In defendant’s vehicle, police discovered

a kitchen knife with an eight-inch blade and a five-inch handle, along with a steak

knife and two small folding knives. Defendant asserts the knives simply

constituted bad character evidence and were used to support the prosecutor’s

84

argument that defendant was the kind of person who likes to arm himself with

knives.

Defense counsel failed to object when the police officer who performed the

search described the knives in his trial testimony. When the parties were

discussing the introduction of exhibits into evidence, defense counsel objected on

the ground that the admission of the knives would be more prejudicial than

probative. (Evid. Code, § 352.)16 The prosecutor countered that the knives might

have been present in the vehicle for potential use in the various stalking episodes

and burglaries that followed the commission of the murders.

The court overruled the objection, observing that a knife had been stolen

from at least one of the premises defendant had entered and that there was

evidence indicating defendant used his automobile to stalk young women. The

court noted evidence establishing that defendant sometimes removed kitchen

knives from drawers while committing his crimes and that he used kitchen knives

“similar to the one taken from the defendant’s vehicle in these homicides.” The

court concluded that the probative value of the evidence outweighed its potential

for prejudice.

As noted above, defense counsel failed to object to the police officer’s

testimony recounting the discovery of the knives during the search of the vehicle.

Accordingly, any error with respect to the admission of the physical evidence must

be viewed as harmless in light of the officer’s testimony describing the knives.


16

As respondent points out, defense counsel objected to certain numbered

exhibits, and the numbers represented only the steak knife and the folding knives.
The transcript of the hearing on the objection, however, makes it clear that the
court and counsel assumed the objection went to the larger knife as well.

85

Even if we were to reach the merits of defendant’s claim, we do not agree

that the court abused its discretion. Although none of the knives evidently was

used as a murder weapon, it is reasonable to conclude that defendant used one or

more of them during the various charged burglaries and attempted burglaries that

were committed subsequent to the murders. There was evidence that at least in the

Schultz and Keller murders, defendant came armed with his own knife, and the

subsequently committed burglaries and attempted burglaries bore enough

similarities to those murders (and the burglaries related to those murders) to enable

the jury to reasonably conclude he was armed with his own knife (perhaps one of

the knives discovered in his automobile) when he committed some of the charged

burglaries and attempted burglaries.

Defendant’s reliance upon People v. Riser (1956) 47 Cal.2d 566 (overruled

on another ground in People v. Morse (1964) 60 Cal.2d 631, 648-649) is

misplaced. In that case the evidence established that a murder had been

committed with a Smith and Wesson .38-caliber Special revolver, which never

was recovered. We concluded it was error to admit evidence that defendant

possessed a Colt .38-caliber revolver that could not have been the murder weapon.

The only purpose of admitting the evidence would be to demonstrate that the

defendant is “the sort of person who carries deadly weapons.” (People v. Riser,

supra, 47 Cal.2d at p. 577; see also People v. Archer (2000) 82 Cal.App.4th 1380,

1392-1393.)

The knives seized from defendant’s vehicle apparently were not used to

inflict the fatal wounds upon the murder victims, but the charge of murder was not

the only one faced by defendant. As noted, the knives bore some relevance to the

weapons shown by the evidence to have been involved in other charged crimes.

They did not simply constitute bad character evidence. (See People v. Cox (2003)

30 Cal.4th 916, 956-957 [“[w]e have also held that when weapons are otherwise

86

relevant to the crime’s commission, but are not the actual murder weapon, they

may still be admissible. [Citations.] Thus, in Neely we admitted evidence of a

rifle located in the defendant’s truck parked near the crime scene even though the

rifle was not the murder weapon, as it was ‘not irrelevant’ to the charged offenses.

[Citation.] In Lane, we upheld the admission of guns found in an ‘abandoned

truck miles from the scene of the homicide,’ not as relevant to the homicide per se,

but as weapons ‘of a character which could be used in armed robbery . . . in

furtherance of the criminal plan.’ [Citation.]”].)

Defendant unpersuasively contends the court’s ruling denied him his

constitutional right to put on a defense, to confront and cross-examine the

witnesses who testified against him, and to a fundamentally fair trial. He also

claims the ruling denied him due process of law by arbitrarily depriving him of

crucial evidence. We conclude there was no error under state law, and “ ‘[a]s a

general matter, the ordinary rules of evidence do not impermissibly infringe on the

accused’s [state or federal constitutional] right to present a defense.’ [Citations.]”

(People v. Robinson, supra, 37 Cal.4th at pp. 626-627, fn. omitted.)

Defendant next contends that the prosecutor committed misconduct when

in closing argument he relied upon the knives as evidence of defendant’s bad

character. Defendant complains the prosecutor stated that whoever committed the

crimes obviously liked to use knives, pointing to the exhibits of knives seized from

defendant’s vehicle and asking why defendant would carry such knives.

Defendant also characterizes as misconduct the prosecutor’s discussion of

statements made by defendant concerning knives and the prosecutor’s subsequent

argument: “[Defendant] brags about these knives. He has them in his car. He is

that type of person that gets his thrills off of imagining knives and blood dripping

off those knives.”

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Again, there was no objection on the basis of prosecutorial misconduct, nor

did the defense request that the court admonish the jury. (See People v. Frye,

supra, 18 Cal.4th at p. 969.) Even assuming that the court’s ruling on defendant’s

objection to the introduction of the knives into evidence rendered further objection

futile (see People v. Hill, supra, 17 Cal.4th at p. 820), defendant’s claim lacks

merit. This is not a situation in which the prosecutor asked the jury to draw the

inference that defendant had a bad character because he possessed a weapon

unconnected with the charged crimes. Rather, the prosecutor legitimately referred

to the knives in connection with the matter of motive. He argued that the evidence

from the crime scenes established that whoever committed the crimes liked to use

knives — implying that employing knives was an aspect of the murderer’s sexual

perversion and that sexual perversion as expressed by the use of knives was the

murderer’s motivation. The prosecutor discussed the similarities among the

victims, particularly that they were attractive women, most of whom had been

accosted or attacked while scantily clothed. He argued that the women had been

stalked, and that whoever killed the victims was motivated by a sexual perversion.

“That’s the mold of domination, of sexual perversion — wanting to kill to see

blood. Somebody who isn’t quite right. Somebody who has a desire to dominate,

to express his sexual perversion by seeing the breasts of women bleed.” Then the

prosecutor asked the jury to conclude that defendant was a person who liked to use

knives, a circumstance that would support the inference that he shared the

motivation of the murderer. In support, the prosecutor pointed to the knives

defendant kept in his car and to statements defendant made to friends. The

prosecutor did not ask the jury to conclude that defendant was the murderer

because other uncharged crimes showed he had a bad character or even because he

traveled armed — the prosecutor asked them to conclude defendant was the

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murderer because there was circumstantial evidence of his motivation. This

argument was permissible.

Defendant also contends that the evidence of the knives was inadmissible

because the police violated his Fourth Amendment rights by conducting the

warrantless search of his automobile in which the knives were discovered. At a

hearing held prior to trial pursuant to section 1538.5, the court determined that the

police had probable cause to conduct the search in conjunction with defendant’s

arrest. It is unnecessary for us to recite here the events that led to the arrest, the

seizure of the automobile, and the inventory search conducted the following day,

because even if the knives were to be viewed as the fruit of a search conducted in

violation of defendant’s rights under the Fourth Amendment, any error would have

been harmless beyond a reasonable doubt. Although we have concluded that the

knives had some relevance, they were of limited probative value — as defendant

himself contends. In light of the overwhelming evidence of defendant’s guilt of

the charged crimes, the admission of the knives, if error, would have to be viewed

as harmless beyond a reasonable doubt.

9. Sufficiency of the evidence

Defendant contends the presentation of the evidence was confusing and that

the jury may have assumed that if defendant was guilty of one crime, he must be

guilty of all of the charged crimes. Defendant does not offer any support for this

claim. The jury properly was instructed to decide each count separately (CALJIC

No. 17.02), and both the prosecution and the defense made the point during

closing argument that the jury should consider separately its verdict on each

charge. Accordingly we reject this claim.

Defendant attacks the sufficiency of the evidence to support many of the

counts charged against him, raising his claims in multiple subparts.

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We “ ‘review the whole record in the light most favorable to the judgment

below to determine whether it discloses substantial evidence ⎯ that is, evidence

which is reasonable, credible, and of solid value — such that a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v.

Hillhouse (2002) 27 Cal.4th 469, 496; see also People v. Berryman (1993) 6

Cal.4th 1048, 1082-1083 [same standard under the state and federal due process

clauses].) We presume “ ‘in support of the judgment the existence of every fact

the trier could reasonably deduce from the evidence.’ [Citation.] This standard

applies whether direct or circumstantial evidence is involved.” (People v. Catlin

(2001) 26 Cal.4th 81, 139.)

a. The murder of Tiffany Schultz (Count 1)

Defendant contends there was insufficient evidence to connect him to the

murder of Tiffany Schultz. “Murder is the unlawful killing of a human being . . .

with malice aforethought.” (§ 187, subd. (a).) “Such malice may be express or

implied. It is express when there is manifested a deliberate intention unlawfully to

take away the life of a fellow creature. It is implied, when no considerable

provocation appears, or when the circumstances attending the killing show an

abandoned and malignant heart.” (§ 188.) Premeditated murder is murder in the

first degree. (§ 189.)

We reject defendant’s challenge to the sufficiency of the evidence

connecting him to the murder of Tiffany Schultz. There was sufficient evidence

from which the jury could infer defendant’s identity as the murderer. Defendant

recently had moved into the apartment complex across the street from where

Schultz was murdered. The jury could infer that on the morning of the murder,

defendant was seen, not in his own apartment complex, but near Schultz’s

apartment, an hour or two prior to the murder, giving a false account for his

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presence and in a position where he could have observed Schultz sunbathing at her

open doorway. The jury could have drawn these inferences from the testimony of

Dorothy Curtiss, the manager of the Canyon Ridge Apartment complex where

Schultz lived, who testified she saw Schultz sunbathing in a bikini in the doorway

of her apartment around 10 a.m. on the morning of her murder. Schultz’s next

door neighbor saw Schultz sunbathing in the same location at approximately 12:20

p.m. Schultz spoke to a friend between 10 and 10:30 a.m., but failed to call the

friend later in the morning, as the friend had expected. Telephone calls to her

placed around 12:30 p.m. went unanswered, and about the same time witnesses

heard sounds in Schultz’s apartment that were consistent with a violent struggle.

Curtiss further testified that between 10:30 and 10:45 on the morning of

Schultz’s murder, she encountered a man in front of her office whom she was

relatively certain was defendant. The office abutted the stairs leading to Schultz’s

second-story apartment. The man requested a hanger, stating he had locked

himself out of his automobile. Curtiss retrieved a hanger from her nearby

apartment and gave it to the man. To Curtiss’s surprise, the man proceeded

toward the back of the complex rather than out to the street, where he had

indicated his automobile was located. Curtiss departed on an errand at some time

between 11 and 11:30 a.m., and did not see anyone working on an automobile on

the street at that time or upon her return.

In addition, the jury could infer the identity of Schultz’s murderer from

evidence establishing substantial similarities among this murder and the other

murders: the similarities between Schultz herself and the other murder victims;

the type of clustered, deep stab wounds inflicted on Schultz and the other murder

victims; the partially disrobed or nude condition of the bodies in all the murders,

including that of Schultz; the proximity of the location of the Schultz murder to

the location of the ensuing similar murders of Weinhold and Tarr; and other

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evidence establishing that defendant was a habitual burglar who preyed primarily

on young White women whom he followed to their homes.

In addition, the interior and exterior doorknobs of the door leading into the

room where Schultz’s body was found were marked with bloody handprints in a

honeycomb or cross-hatch design consistent with a sock or gloves. Witness

Beasley testified that defendant wore socks over his hands when they committed

burglaries together. Similar bloody marks were discovered at some of the other

murder scenes.

In light of all the evidence, a jury reasonably could conclude defendant was

guilty of murdering Schultz despite minor distinguishing marks consisting of her

having been stabbed more times than the other victims and suffering an additional

cut across her throat, and despite nothing apparently having been stolen from her

apartment.

Defendant also contends there was insufficient evidence of premeditation

and deliberation to support a first degree verdict as to the murder of Schultz.

“ ‘Generally, there are three categories of evidence that are sufficient to

sustain a premeditated and deliberate murder: evidence of planning, motive, and

method. [Citations.] When evidence of all three categories is not present, “we

require either very strong evidence of planning, or some evidence of motive in

conjunction with planning or a deliberate manner of killing.” [Citation.] But

these categories of evidence, taken from People v. Anderson (1968) 70 Cal.2d 15,

26-27, “are descriptive, not normative.” [Citation.] They are simply an “aid [for]

reviewing courts in assessing whether the evidence is supportive of an inference

that the killing was the result of preexisting reflection and weighing of

considerations rather than mere unconsidered or rash impulse.” [Citation.]’ ”

(People v. Elliot (2005) 37 Cal.4th 453, 470-471.)

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With regard to planning, there is evidence from which the jury could infer

defendant noticed Schultz sunbathing in her bikini up to two hours prior to the

murder, giving him ample time to consider and plan his crime prior to his return to

the scene. The jury could infer he possessed criminal intent prior to his

commission of the crime, because he employed a ruse to explain his presence near

Schultz’s apartment. The bloody hand prints in a honeycomb or cross-hatch

pattern that were discovered at the scene support the inference the perpetrator of

the murder planned far enough in advance to bring gloves or socks for his hands

so he would not leave fingerprints. With regard to motive, evidence of the other

crimes committed by defendant indicated he harbored animus against young White

women. With regard to method, the clustered stab wounds support an inference of

a deliberate killing. (See People v. Elliot, supra, 37 Cal.4th at p. 471 [“Three

potentially lethal knife wounds . . . [and] 80 other stab and slash wounds to her

body [could have been] construed . . . as intimating a preconceived design to

kill”].) The similarities between the Schultz murder and the other murders support

the inference defendant went to Schultz’s home armed with a knife and with the

intent to kill. (See People v. Carter, (2005) 36 Cal.4th 114,. 1184-1185 [the

circumstances of three similar murders by strangulation occurring in a short period

of time “strongly indicate” the killings were premeditated, and the record as a

whole “is inconsistent with any suggestion that the killings were not willful,

premeditated, and deliberate”]; People v. Catlin, supra, 26 Cal.4th at pp. 140-141

[a common scheme among charged and uncharged murders supplied evidence of

the defendant’s guilt of murder with malice aforethought].)

In sum, sufficient evidence supports the verdict of guilty as to the first

degree premeditated murder of Schultz.

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b. The murder and rape of Janene Weinhold and the burglary of

her residence (Counts 2, 3, and 4)

Defendant contends there was insufficient evidence to establish that he was

responsible for the murder and rape of Janene Weinhold. It is unclear whether he

also challenges the sufficiency of the evidence regarding the burglary of

Weinhold’s apartment.

We disagree with defendant’s claim that the evidence was insufficient as to

any of the charges involving Weinhold. As noted, “[m]urder is the unlawful

killing of a human being . . . with malice aforethought.” (§ 187, subd. (a).)

Murder in the course of certain enumerated felonies, including rape and burglary,

is murder in the first degree. (§ 189.) Forcible rape is “an act of sexual

intercourse” that 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).) A person who enters a dwelling “with

intent to commit grand or petit larceny or any felony is guilty of burglary.”

(§ 459.)

There was ample evidence demonstrating that defendant was responsible

for the murder of Weinhold. A neighbor observed defendant seated on the steps

leading to Weinhold’s apartment close to the time of the murder. The murder fit

the pattern of the other murders — Weinhold was a young White woman who was

murdered in her home at the Buena Vista Gardens apartment complex in the

middle of the day. Her body lay positioned on the floor wearing only a bra. She

had suffered 22 deep stab wounds closely clustered in the chest area and

administered with force sufficient to penetrate bone. As in some of the other

murders, the assailant used a kitchen knife belonging to the victim. DNA

evidence strongly connected defendant to the crime. With respect to the rape

verdict, the evidence indicated that the victim was not involved in any intimate

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relationships and that defendant was unknown to the victim, circumstances

supporting an inference that sexual intercourse occurred against her will. Two

months after the commission of this crime, defendant told an acquaintance that he

had gone on a date and forced himself on the woman. Defendant much later

remarked to a coworker that he had sexual relations with a woman named Janene.

Seminal fluid found at the scene indicated a match with defendant’s DNA that

would occur in one out of 120,000 persons. It reasonably could be inferred from

all the evidence that defendant entered the apartment with the intent to commit

larceny or rape.

Defendant contends that his statements to his acquaintance were made after

the crime was committed and did not clearly refer to the victim or to any charged

offense. Nonetheless, they supplied a reasonable inference in support of the

verdicts. Defendant objects that the DNA evidence demonstrated that there were

20 other African-American persons in the San Diego area who could have left the

semen stains at the scene. But the circumstance that defendant was one of 20

persons who could have done so, when considered with all the other evidence

linking him to the crimes, constituted weighty evidence of his guilt.

Defendant points to various distinctions between the murder of Janene

Weinhold and the other murders. According to defendant, the murder of

Weinhold was the only one in which a sexual assault accompanied the murder, and

there was no evidence the perpetrator had stolen her property or that she had been

followed from a swimming pool or a fitness center.

We disagree that the other murders lacked sexual overtones. The various

victims were fully or partially unclothed and their bodies appeared to be displayed,

sometimes with legs apart. Although it does not appear that Weinhold was

followed from a pool or fitness center and there is no proof that defendant stole

her property, she bore the characteristics of the type of person targeted by

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defendant, namely young, attractive White women who were alone in their homes

during the middle of the day in a certain neighborhood. The distinctions among

the murders did not preclude a jury from reasonably concluding that defendant

was responsible for the crimes committed against Weinhold.

c. Attempted burglaries of the residence of Sarah Canfield and

Stephanie Squires (counts 7 and 8)

Defendant contends the evidence was insufficient to link him to these

crimes and to establish the element of intent to steal. As noted, burglary consists

of entry into a home or certain other structures “with intent to commit grand or

petit larceny or any felony.” (§ 459.) “An attempt to commit a crime consists of

two elements: a specific intent to commit the crime, and a direct but ineffectual

act done toward its commission.” (§ 21a.)

We are not persuaded by defendant’s claim that there was insufficient

evidence of his identity as the perpetrator of the attempted burglaries. In the first

incident, Stephanie Squires recognized defendant (perhaps from her having

previously resided at the Buena Vista Gardens apartment complex) when he

followed her to the pool at the Torrey Pines Village apartment complex. On both

April 25 and April 28, 1990, an African-American man climbed the stairs to

Squires’s apartment and tried the door handle. Canfield identified defendant as

the person who, on April 28, 1990, appeared at her door. Other evidence

established that defendant’s vehicle was seen departing from the parking lot soon

after the second incident. A jury reasonably could infer, particularly in light of the

modus operandi involved in many of the other crimes, that the man who tried the

door on both occasions was defendant. For the same reason, a jury reasonably

could determine that his intent was, in part, theft. (People v. Ramirez, supra, 39

Cal.4th at pp. 463-464.) Contrary to defendant’s claim, there was evidence he

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already had stolen from his victims, namely, that he had stolen an opal ring from

Tarr.

Defendant claims that Canfield was not completely certain of her

identification when she viewed the video lineup, and that her identification was

tainted by her prior observation of defendant’s image on television news. Canfield

was quite confident of her identification at trial, however, and even at the video

lineup she was almost positive. In addition, the testimony of the apartment

manager and her husband supported Canfield’s identification.

d. Burglary of the residence occupied by Leslie Hughes-Webb

(Count 9)

Defendant challenges the sufficiency of the evidence to establish that he

was responsible for pushing his way into the residence where Leslie Hughes-

Webb was staying, in light of the testimony of another witness who testified

defendant was at a distant spot in Old Town San Diego until 2:30 p.m. on the day

of the attack. The jury was entitled to determine that Hughes-Webb, who

positively identified defendant as her assailant, was more credible than the other

witness, Christine Fagan. Contrary to defendant’s assertion that there was no

evidence indicating that defendant entered the home with the intent to commit

theft, the similar crimes he committed in other homes provided a basis for a jury to

reasonably conclude that his intent was, at least in part, to commit theft.

e. Burglary of the residence of Michael Gromme (Count 17)

With respect to the burglary of Michael Gromme’s residence, although the

question is closer than in other counts, we believe the evidence was sufficient to

support this conviction. Shirley Beasley testified that he and defendant

burglarized an apartment that was “right upstairs” from their own and removed all

the liquor they found in the home in order to provide supplies for a party. Beasley

testified that defendant retrieved a knife from the kitchen and walked through the

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apartment. Beasley further testified that he and defendant spoke with an older

couple, the occupants of the apartment, shortly after the burglary and that he

commiserated over the burglary, falsely claiming the apartment he shared with

defendant also had been burglarized. On the other hand, Beasley claimed he and

defendant committed the burglary of the apartment of an older couple whom he

saw seated at the apartment complex’s pool as the burglary proceeded, even

though Gromme resided alone and was at work when the burglary occurred.

When we consider that Gromme’s apartment was indeed “right upstairs”

from the apartment shared by defendant and Beasley, that Gromme’s account of

the peculiar burglary (in which the perpetrators removed his entire liquor supply)

matched Beasley’s account, and that Gromme and Beasley both recalled an

interaction shortly after the burglary in which Beasley commiserated over the

burglary and claimed to have suffered one himself, we believe the evidence as a

whole permitted the jury reasonably to conclude that Beasley was mistaken or lied

when he stated the apartment belonged to an older couple whom he had seen at the

pool. The unusual burglary of Gromme’s residence was sufficiently similar to the

burglary described by Beasley, and Beasley’s statements to Gromme were so

similar to the statements described by Beasley, that it would be reasonable for the

jury to conclude both witnesses were describing the same incident. Although

Beasley was an accomplice, his testimony was corroborated by Gromme’s account

of the target and location of the burglary, the other evidence establishing Beasley’s

and defendant’s partnership in crime during the relevant period, and Beasley and

defendant’s presence together shortly after the crime. (See People v. Gurule,

supra, 28 Cal.4th at p. 628.)

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f. Attempted burglary of the residence of Patricia Van (Count 23)

Defendant contends the evidence of attempted burglary of the residence of

Patricia Van on December 19, 1990, consisted of nothing more than an innocent

knock at the door, accompanied by an inquiry after a friend. We believe, however,

that the evidence was sufficient to prove an attempted burglary. A neighbor saw

defendant examining the backyards of residences in that vicinity, then witnessed

him approach the Van residence through the side yard. Defendant arrived there

shortly after Van returned from working out at the Family Fitness Center, and the

evidence strongly suggests he had stalked Van and followed her home. His

approach to the front door and request for a person who did not reside there was

consistent with his approach during the commission of other crimes. In addition, a

completed burglary of the home of Patricia Van took place one month after the

attempt, and one of Van’s stolen earrings was traced to defendant. There was

ample evidence that the December 19, 1990 approach to the Van residence also

constituted an attempted burglary in which defendant’s activities went beyond

mere preparation but were frustrated by the vigilance of the victim’s neighbor.

g. Attempted burglary of the residence of Karyl Oldenburg

(Count 22)

Defendant contends there was insufficient evidence to support the guilty

verdict of attempted burglary of Karyl Oldenburg’s residence. We disagree. The

jury reasonably concluded that defendant was stalking Oldenburg and that he

followed her home from her workout at the Family Fitness Center. Defendant

appeared at her front door and, without knocking or ringing the bell, started

manipulating the doorknob. There was evidence suggesting he used a credit card

to unlock doors that were not deadbolted, and his activity on this occasion was

consistent with such an effort, especially because he seemed to have something in

his hands as he turned the doorknob. In addition, Oldenburg witnessed him in her

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backyard, where he had no legitimate business, approaching a sliding glass door

similar to the ones he had used to gain entry to other residences that he had

burglarized. There was sufficient evidence to establish that defendant attempted to

enter this residence with the intent to steal.

h. Attempted burglary of the Yates residence (Count 24)

Contrary to defendant’s claim, sufficient evidence supported the verdict

that he was guilty of the attempted burglary of the residence occupied by Angela

Yates. There was evidence indicating that defendant followed Yates home from

the Family Fitness Center, parked at some distance from her residence, then

entered the backyard of the residence as Angela showered. He approached a

sliding glass door at the rear of the residence, but was frightened off when

Angela’s mother saw him and screamed and the family dog emerged from the

house. Defendant was observed jumping over the fence of the Yates property and

driving off at a high rate of speed. In light of the evidence connecting defendant

to similar crimes, there was sufficient evidence to establish that he stalked Angela

Yates with the intent to enter her residence for the purpose, at least in part, of

committing theft.

i. Burglaries of the residences of Depamphillis and Kinney

(Counts 25 and 26)

Defendant contends there was insufficient evidence he was responsible for

the Depamphillis and Kinney burglaries. He relies upon evidence reflecting that

these burglaries occurred late at night, unlike the other crimes. But the burglarized

apartments were located in the vicinity of the other crimes, and a car similar to that

used by defendant was observed at the scene. Moreover, items stolen during these

burglaries subsequently were traced to defendant.

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j. Attempted burglary of the residence occupied by Geralyn Peters

Venvertloh (Count 27)

Defendant contends there was insufficient evidence to link him to the

attempted burglary of Geralyn Venvertloh’s residence, and of his intent to commit

theft in the course of that incident. We disagree. Although Venvertloh was unable

to make a positive identification at a photo or live lineup, her neighbor Jeffrey

Pich witnessed defendant attempting to break into Venvertloh’s residence and

positively identified defendant and his vehicle. Defendant’s intent to steal was

established by his attempt to gain surreptitious entry to a residence that did not

belong to him, and by his having committed numerous other burglaries in the same

manner with the intent to commit theft.

k. Felony-murder theory

Defendant contends there was insufficient evidence to support the burglary

convictions associated with the murders of Weinhold, Tarr, Keller, and Pamela

and Amber Clark, and therefore insufficient evidence to support the murder

verdicts as to these victims if the verdicts were based upon a burglary or rape

felony-murder theory. (Defendant was not charged with a burglary in connection

with the murder of Tiffany Schultz.)

Murder committed in the perpetration of certain felonies, including

burglary and rape, constitutes murder in the first degree. (§ 189.) “ ‘We have

required as part of the felony-murder doctrine that the jury find the perpetrator had

the specific intent to commit one of the enumerated felonies [in section 189] . . . .

[Citations.]’ [Citation.] It also is established that the killing need not occur in the

midst of the commission of the felony, so long as that felony is not merely

incidental to, or an afterthought to, the killing.” (People v. Proctor (1992) 4

Cal.4th 499, 532.) In addition, a homicide occurs in the perpetration of an

enumerated felony for the purpose of the felony-murder rule if both offenses were

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parts of “one continuous transaction.” (People v. Sakarias (2000) 22 Cal.4th 596,

624.)] “ ‘There is no requirement of a strict “causal” [citation] or “temporal”

[citation] relationship between the “felony” and the “murder.” ’ ” (People v. Hart,

(1999) 20 Cal.4th 546, 608-609.) In addition, “[c]ircumstantial evidence may

provide sufficient support for a felony murder conviction.” (People v. Elliot,

supra, 37 Cal.4th at p. 469 [“sufficient evidence supported [a] robbery-murder

conviction based on evidence that [the] victim usually carried several $1 bills, no

paper currency was found on [the] victim or in his taxi, and defendant had seven

$1 bills on his person at the time of his arrest,” citing People v. Marks, supra, 31

Cal.4th at pp. 230-231].)

Defendant contends the evidence left open the possibility that he was

invited into each murder victim’s home and did not enter with felonious intent, a

necessary element for proof of a burglary. Defendant employs an incorrect test in

assessing the sufficiency of the evidence. The test is whether a reasonable juror

could have believed from all the evidence that defendant entered the homes with

intent to commit an enumerated felony. (People v. Hillhouse, supra, 27 Cal.4th at

p. 496; People v. Proctor, supra, 4 Cal.4th at p. 532.) There was ample evidence

establishing that defendant entered each residence with the intent to commit theft,

considering defendant’s modus operandi and the other similar burglaries he

committed that clearly were theft related. In addition, the jury properly was

instructed that felony murder is not proven unless the intent to commit the felony

was formed prior to entry into the residence, and that felony murder is not

established by proof that the defendant entered with the intent to commit murder.

Defendant reiterates that there was no evidence indicating he entered

Janene Weinhold’s residence with the intent to steal or rape. He notes the absence

of evidence of a forced entry, the absence of evidence that property was missing

from the residence, and the absence of direct evidence concerning the interaction

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between Weinhold and defendant when he presented himself at her door. But the

jury may rely upon circumstantial evidence to find that a felony murder occurred

(see People v. Elliot, supra, 37 Cal.4th at p. 469, People v. Marks, supra, 31

Cal.4th at pp. 230-231), and specifically to establish the intent of the defendant.

The defense’s claim that defendant may have been invited into the apartment

before he formed the intent to rape Weinhold or steal from the apartment is

inconsistent with the voluminous evidence of defendant’s stalking behavior,

including his acts prior to the commission of the Weinhold murder, his statement

that he had forced himself on a victim, his many similar burglaries, the

circumstance that he was evidently unknown to Weinhold and that she was not

interested in dating, and the circumstances that his encounter with her was

accompanied by loud sounds and that she bore defensive wounds. The evidence

suggests that the sexual contact between defendant and his victim was not

consensual, that Weinhold did not voluntarily admit defendant to her home, and

that he did not form an intent to commit a theft or rape only after he entered and

on the spur of the moment, as a purely incidental objective. A forced entry was

not necessary to support the burglary verdict. (See People v. Frye, supra, 18

Cal.4th at p. 954.) The jury reasonably could conclude that defendant, well before

he gained admission to the apartment, intended to force himself upon the victim or

at least steal from her.

Defendant also contends there was insufficient evidence to demonstrate that

he formed the intent to steal prior to his entry into the Tarr apartment. Again, the

absence of evidence of a forced entry is not determinative. The evidence of

defendant’s modus operandi constituted evidence of a common intent to steal that

was formed prior to entry into the residences of his victims. As noted, defendant

did steal an opal ring from Tarr. The jury reasonably could believe that when he

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entered, defendant already intended to steal rather than forming such intent only

after the death of his victim.

The prosecutor suggested that defendant took the ring as a souvenir, and

defendant contends the evidence supports the view that he stole a single ring from

Keller merely as a souvenir rather than entering her residence with a preexisting

intent to steal. The murder of Keller followed that of Tarr, and the acquisition of a

second souvenir reasonably could be viewed as one of the objects of defendant’s

entry into Keller’s home rather than as a reflection of a spontaneous impulse

experienced following entry into the home.

With respect to the Clark murders, defendant reiterates there was

insufficient evidence of an intent to steal prior to entry into the residence because,

as he views the matter, there was no evidence concerning the circumstances under

which the perpetrator entered the home, whereas there was evidence indicating

that defendant was dating persons who met the description of the Clarks. The jury

reasonably could conclude defendant was not dating the Clarks, but entered their

home with intent to commit theft — an intent he carried out in this and many other

instances.

Defendant contends that because his convictions were based upon

insufficient evidence, he was deprived of his federal constitutional “rights to a fair

jury trial in accordance with due process of law, to be free from conviction of any

crime absent proof beyond a reasonable doubt [citation], and to reliable fact-

finding underlying capital guilt and penalty phase verdicts.” The evidence was

sufficient to support each of the felony-murder verdicts, as we have explained.

That the evidence in some instances might be reconciled with a contrary finding or

that a jury reasonably could have determined that each murder was not a felony

murder is not a basis for reversal of any of defendant’s conviction. (See People v.

Lewis (2001) 26 Cal.4th 334, 368.)

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Defendant also contends that because in his view the evidence in support of

the burglary convictions involving the murder victims was inadequate, it was

improper for the court to instruct on felony murder. We disagree, having found

the evidence of preexisting intent to commit an enumerated felony to be sufficient

with regard to each of the murders.

Defendant next claims — still under his general challenge to the sufficiency

of the evidence — that it was improper for the court to instruct on felony murder,

because the thefts necessarily were merely incidental afterthoughts to planned

murders and thus could not support a felony-murder verdict. (See People v. Green

(1980) 27 Cal.3d 1, 52-54; People v. Thompson (1980) 27 Cal.3d 303, 321-325.)

This claim is untenable in view of the number of occasions on which defendant

entered residences with the intent to steal and either pawned the proceeds or used

them as gifts for friends.

If defendant’s claim is that, because he committed premeditated killings, he

could not also have committed burglary for the purpose of the felony-murder rule,

his assertion is unconvincing. The felony-murder rule “ ‘do[es] not apply to a

burglary committed for the sole purpose of assaulting or killing the homicide

victim. [Citations.]’ ” (People v. Ramirez, supra, 39 Cal. 4th at p. 463, quoting

People v. Seaton (2001) 26 Cal.4th 598, 646.) On the other hand, “concurrent

intent to kill and to commit the target felony or felonies does not undermine the

basis for a felony-murder conviction.” (People v. Gutierrez, supra, 28 Cal.4th at

p. 1141, italics added; see also People v. Mendoza (2000) 24 Cal.4th 130, 183.)

l. The murder of Schultz

Still pursuing his instructional claims under the general heading of the

sufficiency of the evidence, defendant challenges the first degree murder

instruction as it applied to the murder of Schultz. The trial court gave the jury a

105

general instruction that first degree murder could be established by proof of

premeditation and deliberation or by proof that the killing was committed in the

perpetration of an enumerated felony. Defendant complains the court did not

instruct the jury that the felony murder theory would not apply to the charge that

defendant murdered Schultz. Defendant contends the jury ⎯ even though a

burglary was not charged in connection with the Schultz murder — nonetheless

might have determined that defendant entered Schultz’s home with the intent to

commit theft, and therefore may have applied the felony-murder theory. We are

not persuaded that any error occurred. The jury may convict on a felony-murder

theory if the felony is proved beyond a reasonable doubt even if the underlying

felony has not been charged. (People v. Davis (1995) 10 Cal.4th 463, 514; see

also People v. Kipp (2001) 26 Cal.4th 1100, 1131.) Moreover, in light of the other

murders, the evidence taken as a whole was sufficient to permit a reasonable jury

to conclude that defendant entered Schultz’s home with the intent to commit theft.

10.

Failure to instruct on second degree murder

The prosecutor requested that the court instruct on second degree murder.

His concern was to avoid any possibility of an issue on appeal concerning

instructional error. Defense counsel agreed the instruction should be given,

voicing a desire that the jury have something to consider other than an all-or-

nothing choice between first degree murder convictions and acquittal. At the

court’s request, defense counsel proposed an evidentiary basis for a second degree

murder instruction. Counsel stated: “I can envision, with respect to the first

homicide, the defendant being invited inside, there being an argument, something

brewing in between himself and the perpetrator and Tiffany Schultz, and the state

of mind of the perpetrator that is not indicative of premeditation, deliberation,

because of a fight, something being found, some argument, then a struggle there

106

and grabbing hold of the knife which was inside the apartment and stabbing, but in

a semi-heat-of-passion as opposed to during the commission of a rape or during

the commission of a burglary where he’s been invited inside. That’s the scenario

that could quite possibly have happened. That could be carried through to at least

one other homicide, maybe the Holly Tarr homicide as well as the Keller

homicide.”

The court responded that counsel had provided “at least a plausible

argument,” explaining: “Although I’m skeptical, [counsel], you have provided at

least a scenario that could be based upon this evidence. That’s as to count one.

Other counts, the Clark counts, for example, I can’t imagine any scenario . . . that

would be anything other than first degree.” The court reflected that to instruct on

second degree murder as to the Schultz murder alone might cause the jury to

conclude the court was directing a verdict on the other murder counts, so the court

concluded it would instruct on second degree murder without limiting the

instruction to the Schultz murder.

Although defense counsel favored instruction on second degree murder,

defendant himself vigorously opposed such instruction. During extensive

hearings, the court went to great length to ensure that defendant understood the

issue and that he knowingly and voluntarily wished to forego instruction on

second degree murder. Defense counsel conceded he had no intention of arguing a

second degree murder theory to the jury but, contrary to his client, believed the

instruction would serve to give the jury choices.17

17

We note defendant’s statement to the trial court: “I do not want second

degree at all. I’ll use the court’s words, all or nothing.” The court pressed him on
his understanding of the issue, and defendant responded, “What you’re trying to
tell me, your honor, is that if I was to be found guilty and I have to go back to the
appeal, I can’t say that it was your fault on the error because those are my wishes.

(footnote continued on next page)

107

On the basis of language set forth in People v. Frierson (1985) 39 Cal.3d

803, the trial court concluded that the ultimate authority as to whether lesser

included offense instructions should be given was the defendant himself, not his or

her attorney. The court took additional steps to ensure that defendant understood

the choice he was making by opposing instruction on second degree murder,

including that defendant would not be able to claim error on appeal. The court

again asked defense counsel to state the evidentiary basis he believed supported

the instruction. Defense counsel maintained that he could “conceive of a state of

facts where a person was invited in. That is, there was no burglary, no felony

burglary which would be the basis of an automatic first degree murder finding

where the individual inside is confronted by the female, either after having been

invited in by her for whatever reasons, got that person inside. There was an

argument, a discussion.” Counsel surmised that perhaps “somehow there was a

struggle, struggle over the knife [obtained from inside the home]. At least one

blow caused death . . . . Could have been a killing absent premeditation and

deliberation.” Counsel concluded that such a theory would apply to all the killings

except the Clark murders.

The court then stated its view that, despite defense counsel’s recitation, the

evidence was not sufficient to place a sua sponte duty on the court to instruct on

second degree murder, commenting that all of the evidence supported guilty

verdicts as to first degree murder, if any. The court nonetheless undertook further


(footnote continued from previous page)


[¶] But I still say [] the same thing. I do not want second degree. Because I feel
that second degree is telling the jury that I [did] something. I do not want that at
all.” Later he said: “I haven’t done anything. So why should I go any lower to
second degree.”

108

discussion with defendant designed to ensure that defendant’s decision to forego

instruction on second degree murder (despite defense counsel’s request) was

knowing and voluntary. The court asked him whether he would “waive any right

that you would otherwise have to . . . [¶] [a] second degree [murder] . . .

instruction being provided to the jury,” and defendant responded in the

affirmative. The court determined that it would not instruct on second degree

murder and announced that its decision stemmed both from its view of the

evidence and from defendant’s request.

Defendant now contends, despite his request at trial that the instruction not

be given, that the court’s failure to instruct on second degree murder constituted

reversible error, assigning various constitutional bases for his argument.

“ ‘ “[A] defendant has a constitutional right to have the jury determine

every material issue presented by the evidence [and] . . . an erroneous failure to

instruct on a lesser included offense constitutes a denial of that right. . . .”

[Citation.]’ ” (People v. Elliot, supra, 37 Cal.4th at p. 475.)

The trial court has authority to determine whether to instruct on a lesser

included offense such as second degree murder, and if the court determines that

there is sufficient evidence to warrant such an instruction, the court should give

the instruction. It is for the court alone to decide whether the evidence supports

instruction on a lesser included offense. (People v. Barton (1995) 12 Cal.4th 186,

196.) As we have stated, “neither the prosecution nor the defense should be

allowed, based on their trial strategy, to preclude the jury from considering guilt of

a lesser offense included in the crime charged.” (Ibid.) Indeed, “ ‘ California

decisions have held for decades that even absent a request, and even over the

parties’ objections, the trial court must instruct on a lesser offense necessarily

included in the charged offense if there is substantial evidence the defendant is

109

guilty only of the lesser. [Citations.]’ ” ( People v. Carter (2005) 36 Cal.4th

1114, 1184, italics added, italics in Carter.)

Despite the circumstance that it is the court that is vested with authority to

determine whether to instruct on a lesser included offense, the doctrine of invited

error still applies if the court accedes to a defense attorney’s tactical decision to

request that lesser included offense instructions not be given. (People v. Barton,

supra, 12 Cal.4th at p. 198; see also People v. Horning (2004) 34 Cal.4th 871,

905.) Such a tactical request presents a bar to consideration of the issue on appeal.

(Ibid.) In the present case, however, defense counsel did not make such a tactical

decision — on the contrary, counsel requested the instruction.

We need not determine whether this procedural bar to our consideration of

the issue on appeal applies when defense counsel has requested the instruction but

the defendant objects. As we shall explain, we believe that the trial court correctly

concluded that the evidence adduced at trial was not such that the trial court was

required to instruct on second degree murder as a lesser included offense.

Instructions on lesser included offenses “ ‘are required whenever evidence

that the defendant is guilty only of the lesser offense is “substantial enough to

merit consideration” by the jury. [Citations.] “Substantial evidence” in this

context is “ ‘evidence from which a jury composed of reasonable [persons] could

. . . conclude[]’ ” that the lesser offense, but not the greater, was committed.

[Citations.]’ ” (People v. Hughes (2002) 27 Cal.4th 287, 366-367, italics omitted.)

In the present case, the evidence in support of any second degree murder

conviction was not substantial enough to warrant consideration by the jury. There

was no sua sponte duty to instruct, and the court did not err in refusing a request

for an instruction that was not supported by substantial evidence. (People v.

Flannel (1979) 25 Cal.3d 668, 684-685; People v. Ceja (1994) 26 Cal.App.4th 78,

85.)

110

“Murder is the unlawful killing of a human being . . . with malice

aforethought.” (§ 187, subd. (a).) “Such malice may be express or implied. It is

express when there is manifested a deliberate intention unlawfully to take away

the life of a fellow creature. It is implied, when no considerable provocation

appears, or when the circumstances attending the killing show an abandoned and

malignant heart.” (§ 188.) “Murder that is committed with malice but is not

premeditated is of the second degree.” (People v. Ramirez, supra, 39 Cal.4th at

p. 464; § 189.)

Despite the strong evidence of premeditation discussed above, defendant

insists the evidence was such that the jury could have concluded that the People

had failed to prove premeditation and deliberation or felony murder, the two bases

upon which the first degree murder verdicts rested. Defendant argues it was

“entirely possible” that the killings occurred in a quick explosion of violence after

“the encounters be[gan] in a friendly fashion with the perpetrator invited inside.”

He urges that there was slight evidence of planning or motive, and that the manner

of the killings — according to the defense, potentially representing an explosion of

violence — would suggest malice but not premeditation. He notes that the

prosecutor suggested the perpetrator of the murders was mentally disturbed, and

claims it would be difficult to prove premeditation on the part of a deranged

person. Defendant also points to the prosecutor’s argument that the thefts may

have been afterthoughts, in support of his claim that there was evidence suggesting

he entered the victims’ homes without criminal intent.

We disagree. Defendant was not entitled to have the jury instructed on all

possible lesser included offenses, but only on those offenses as to which there was

evidence of substantial weight. (People v. Hughes, supra, 27 Cal.4th at pp. 366-

367.) In the present case, such evidence of lesser included offenses would have to

suggest that defendant killed the victims with the general intent to kill or with a

111

reckless disregard for human life, but that he did not kill in the course of

committing a felony or with premeditation and deliberation. But the evidence

demonstrating premeditation was overwhelming, and there was no evidence that

defendant happened upon the victims and rashly decided to kill them. There was

no evidence of substantial weight indicating that defendant entered the victims’

home at their invitation; defendant relies upon only speculation in making such a

claim. Although an unpremeditated explosion of violence may constitute a second

degree murder, evidence of defendant’s motive and modus operandi supplied

overwhelming proof that he did not kill on a rash impulse, but according to a

premeditated design. As the trial court observed, defense counsel’s request for a

second degree murder instruction was based upon “speculative scenarios” without

any evidentiary basis. Finally, we observe that the defense was alibi and mistaken

identity, not that defendant intended to kill but did not premeditate. Defense

counsel announced the defense had no intention of arguing a second degree

murder theory to the jury even if the court were to instruct on it.

We reached a similar conclusion in People v. Carter, supra, 36 Cal.4th

1114. In that case, within a period of a few days, three women were fatally

strangled under closely similar circumstances. “Not only does the manner in

which each of these three killings was perpetrated strongly indicate in itself that

each of the killings was willful, premeditated, and deliberate, but the entire course

of conduct clearly revealed by the evidence, taken as a whole, is inconsistent with

any suggestion that the killings were not willful, premeditated, and deliberate.”

(Id. at pp. 1184-1185; see also People v. Valdez (2004) 32 Cal.4th 73, 116

[speculation that the victim might have been shot during a struggle did not require

a second degree murder instruction].)

Defendant refers to his statements that he was dating the Clarks and a

woman named Janene, and suggests in this court that this evidence would support

112

a claim that he entered the Clark and Weinhold residences without intent to

commit a felony and without a premeditated intent to kill. But the jury, having

convicted defendant of burglary in connection with the Clark and Weinhold

murders and of rape in connection with the Weinhold murder, specifically rejected

the theory that he entered the Clark and Weinhold residences without intent to

commit a felony. In addition, there is no evidence that defendant entered the

residences and then suddenly decided to kill the victims in an explosion of

violence. All the evidence pointed to premeditation.

Even if we were to agree with defendant that the court should have

instructed on second degree murder (and that this issue was not forfeited), any

error in failing to give such instructions would have been harmless. “The

erroneous failure to instruct on a lesser included offense generally is subject to

harmless error review under the standard of People v. Watson (1956) 46 Cal.2d

818, at pages 836-837. Reversal is required only if it is reasonably probable the

jury would have returned a different verdict absent the error or errors complained

of. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 867-868, fn. omitted;

and see id., p. 868, fn. 16 [the footnote describes potential exceptions for certain

federal constitutional violations]; see also People v. Ledesma (2006) 39 Cal.4th

641, 716; People v. Sakarias, supra, 22 Cal.4th at p. 621 [a violation of the duty

imposed by state law to instruct on lesser included offenses is evaluated under the

Watson standard]; People v. Breverman (1998) 19 Cal.4th 142, 165 [same]; but

see People v. Elliot, supra, 37 Cal.4th at p. 475 [characterizing erroneous failure to

instruct on a lesser included offense as a denial of due process of law to be

evaluated on appeal under the standard set forth in Chapman v. California (1967)
386 U.S. 18, 24].) Having considered “ ‘whether the evidence supporting the

existing judgment is . . . relatively strong, and the evidence supporting a different

outcome is . . . comparatively weak’ ” (People v. Rogers, supra, 39 Cal.4th at p.

113

870), we do not believe it is reasonably probable that the absence of a second

degree murder instruction could have affected the outcome of the jury’s

deliberations. Indeed any error would have been harmless beyond a reasonable

doubt. As we have seen, the evidence in support of second degree murder verdicts

not only was weak ― it was insubstantial, whereas the evidence relating to the

manner and circumstances of each crime and the modus operandi and common

marks among all the crimes overwhelmingly established premeditation.

Even assuming the existence of some evidence in support of defendant’s

claim that he killed in a sudden, unpremeditated explosion of violence, we observe

that the jury also convicted defendant of burglary as to five of the murders — all

but the Schultz murder, as to which burglary was not charged — thereby

necessarily determining that, contrary to defendant’s suggestion on appeal,

defendant did not enter the victims’ residences lacking felonious intent. The

verdicts also strongly indicate, in view of the facts underlying the crimes, that the

jury believed defendant had committed five felony murders. In addition, the jury

found true the special circumstance allegation that he killed Janene Weinhold in

the course of a rape or attempted rape (§ 190.2, subd. (a)(17)), thereby specifically

establishing that the jury determined that the Weinhold murder was a felony

murder. (See People v. Elliot, supra, 37 Cal.4th at pp. 475-476; People v.

Chatman (2006) 38 Cal.4th 344, 392; see also People v. Hinton (2006) 37 Cal.4th

839, 883 [the jury necessarily rejected defendant’s sole defense of duress when it

convicted him of attempted robbery, so that any lack of clarity in the second

degree murder instructions was harmless].)

Further, we already have rejected defendant’s claim that there was

insufficient evidence to support the burglary and rape verdicts involving the

murder victims, and his renewal of this claim in the context of the present

argument does not alter our conclusion. As for the remaining murder count

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involving the murder of Schultz, we do not believe the jury would have convicted

defendant of second degree murder of Schultz had it been instructed on that

offense, in light of the jury’s verdicts as to the five other homicide charges.

Defendant contends that omission of the second degree murder instruction

constituted federal constitutional error. Specifically, he asserts that if his state law

instructional error claim is barred by the invited error doctrine, he still must

prevail because the court’s failure to instruct on second degree murder constituted

a violation of his rights under the Eighth and Fourteenth Amendments to the

United States Constitution. He relies upon Beck v. Alabama, supra, 447 U.S. 625,

and related cases.18 We have not relied upon the invited error doctrine in rejecting

defendant’s instructional claim, however. Defendant adds that his federal

constitutional argument applies regardless of the cause of the court’s failure to

instruct, relying upon the same principles. We also reject this claim. Beck v.

Alabama, supra, 447 U.S. 625, and its progeny do not require that a court instruct

upon a lesser included offense as to which substantial evidence is lacking. (People

v. Valdez, supra, 32 Cal.4th at p. 118 [“Because there was no substantial evidence

supporting an instruction on second degree murder, the high court’s decision in

Beck is not implicated”].) Nor, unlike the situation in the Beck case, does our state

prohibit the giving of lesser included offense instructions in capital cases. Nor

under our state law can the absence of a lesser included offense instruction force

18

“The law at issue in Beck prohibited giving lesser included offense

instructions in capital cases while they remained available in noncapital cases.
Additionally, the jury was instructed that if they found the defendant guilty, they
were mandated to impose the death penalty. (Beck, supra, 447 U.S. at p. 639, fn.
15.) In such a case, the jury was left with only ‘two options: to convict the
defendant of the capital crime, in which case they were required to impose the
death penalty, or to acquit.’ (Hopkins v. Reeves (1998) 524 U.S. 88, 95.)” (People
v. Valdez
, supra, 32 Cal.4th at p. 118, fn. 23.)

115

the jury into a choice between acquittal and a murder conviction that necessarily

would lead to the death penalty; even after finding true an alleged special

circumstance, a California jury may elect to sentence the defendant to life in

prison without the possibility of parole. (People v. Valdez, supra, 32 Cal.4th at

pp. 118-119.)19

Defendant further contends that the absence of a second degree murder

instruction violated the federal constitutional principle that the jury, not the court,

must decide the factual basis for every element of a criminal charge, and

essentially constituted a directed verdict of first degree murder. He urges that the

standard of review for federal constitutional error established in Chapman v.

California, supra, 386 U.S. 18, 24, should apply.

Contrary to defendant’s claim, the court’s failure to instruct on second

degree murder did not constitute a directed verdict of first degree murder.

Defendant’s reliance on People v. Figueroa (1986) 41 Cal.3d 714, is misplaced.

In that case the trial court instructed the jury on all the elements of the charged

securities law violation, including the requirement that the item at issue actually be

a security. Then the court instructed the jury that the item was a security, thereby

improperly removing that element from the jury’s consideration. In the present


19

Because the court must instruct on lesser included offenses for which there

is evidence of substantial weight without respect to the wishes of the prosecution
or the defense, we need not reach defendant’s claim that it would constitute a
denial of equal protection and other constitutional rights to adopt an arbitrary
system whereby some, but not all, defendants are permitted to control instruction
of the jury on lesser included offenses, depending upon the policy of the individual
court in which the defendant happens to appear. We need not respond to
defendant’s claim that the court’s failure to instruct on second degree murder
removed an element of the offense from the jury’s consideration and constituted
an impermissible directed verdict, because there was no substantial evidence
suggesting that defendant had committed second degree murder.

116

case, however, the court did not instruct the jury that any element of the crime of

murder had been established.

Finally, defendant contends that omission of the second degree murder

instruction caused the jury to fail to fix the degree of the crime as required by

section 1157, which requires that when a defendant is convicted of a crime that is

divided into degrees, the fact finder must find the degree of the crime — and that

failing such action by the fact finder, the crime will be “deemed to be of the lesser

degree.” (§ 1157.) This claim lacks merit. The question of degree properly was

not before the jury, and section 1157 had no application. (See People v. Mendoza,

supra, 23 Cal.4th at p. 910.) That statute does not require the jury to make a

determination of the degree of the murder when substantial evidence does not exist

that would warrant the jury’s considering the homicide to be anything less than

first degree murder. Defendant fails to provide any authority or persuasive

argument to the contrary.



11. Testimony of Anna Cotalessa-Ritchie

Over defense objection that the evidence was more prejudicial than

probative and should be excluded pursuant to Evidence Code sections 352 and

1101, Anna Cotalessa-Ritchie testified as follows. She resided in the Buena Vista

Gardens apartment complex. At approximately noon on March 25, 1990, a few

days prior to the April 3, 1990 murder of Holly Tarr, the witness walked from her

residence to a nearby convenience store. On her way to the store she saw

defendant, whom she later identified, standing at a bus stop across the street from

the store. On her return, at first she did not see defendant, but then observed him

walking toward her as she walked toward her home. He stared at her during the

time it took for her to proceed approximately 50 yards, until they crossed paths.

Several times she looked away and looked back, and he still was staring at her.

117

She passed him and proceeded 20 to 30 yards to the door of her second-story

apartment. She fumbled for her keys for a moment, then noticed defendant, now

standing at the foot of the stairs staring at her. When she looked at him, he bent

over as if to tie his shoes, which already were tied, but continued to stare at her.

She entered the apartment and locked the door. The incident made her nervous,

and she informed her husband of it. She reported the incident to the police the day

after the Tarr murder. In June 1991, she identified defendant at a video lineup,

having been instructed not to view any publicity regarding the case prior to the

lineup. In his offer of proof, the prosecutor stated that the witness was a young

woman in her early 20’s.

The prosecution offered the foregoing testimony on the issue of identity

and as evidence of modus operandi, relying upon the asserted similarity between

the incident and the crimes committed against Tarr and Weinhold. The court

overruled defendant’s objection, explaining that the incident occurred close in

time and place to the Tarr and Weinhold murders, adding its determination that the

evidence was not more prejudicial than probative.

Ordinarily, evidence of a person’s character is inadmissible to demonstrate

his or her conduct on a particular occasion (Evid. Code, § 1101, subd. (a)), except

that evidence is admissible to establish “that a person committed a crime, civil

wrong, or other act when relevant to prove some fact (such as motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .)

other than his or her disposition to commit such an act.” (Evid. Code, § 1101,

subd. (b).) Evidence going to the issue of identity must share distinctive common

marks with the charged crime, marks that are sufficient to support an inference

that the same person was involved in both instances. (People v. Gray (2005) 37

Cal.4th 168, 202.) “ ‘A somewhat lesser degree of similarity is required to show a

common plan or scheme . . . .’ (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.)

118

. . . [W]e review the trial court’s ruling . . . for abuse of discretion. [Citation.”

(People v. Gray, supra, 37 Cal.4th at p. 202.)

The trial court did not abuse its discretion. Cotalessa-Ritchie’s testimony

provided evidence of defendant’s “other act” that was relevant to issues apart from

his character or disposition, namely identity and common scheme or plan. There

was evidence that defendant had followed other victims — including witnesses

who testified at trial — to their homes during the middle of the day; Tarr and

Weinhold were murdered in their apartments in the same complex where

Cotalessa-Ritchie resided and at the same time of day. The women had been

murdered within a short time of the Cotalessa-Ritchie incident, and Schultz was

murdered in an adjacent complex. There was evidence that murder victims Tarr

and Schultz both had been followed home by a young African-American man after

they left their apartments for a brief period, and murder victim Weinhold had gone

in and out of her apartment while doing laundry. Schultz, Tarr, and Weinhold had

been followed up a flight of stairs to their second-story apartments; defendant

followed Cotalessa-Ritchie to the bottom of the stairway leading to her second-

story apartment. Finally, Cotalessa-Ritchie was of a similar age and belonged to

the same race and gender as all the murder victims and most of the other burglary

or attempted burglary victims. It was within the trial court’s discretion to

conclude that the Cotalessa-Ritchie incident was highly similar to the stalking

activity engaged in by the perpetrator of several of the other charged crimes,

thereby providing evidence that it was defendant and not some other man who

committed the charged crimes. The trial court properly could find that the

similarity of the incident to the evidence of defendant’s stalking behavior in many

119

other instances provided evidence of a common scheme or plan. Nor was the

evidence of the incident more prejudicial than probative.20



12. Exclusion of third party culpability evidence

Defendant contends the trial court erred in excluding certain third party

culpability evidence. Specifically, defendant made an offer of proof that Faie

Fiorito would testify that a young African-American man watched her as she

worked out at the Family Fitness Center located on Balboa Avenue in San Diego

at approximately 6:30 p.m. on April 9, 1990. When she emerged into the parking

lot some minutes later, the man was seated behind her automobile and seemed to

be trying to examine her vehicle license plate and write something down. She

watched for two minutes, then drove home and telephoned the police. She

participated in the live lineup and would testify that defendant was not the person

who had watched her on that occasion, although that person met the general

description of the assailant in the series of murders with which defendant was

charged.

The prosecution objected that the offer of proof was inadequate under the

standard established in Hall, supra, 41 Cal.3d 826. Specifically, there had been

nothing linking the Balboa Avenue Family Fitness Center to the crimes, and

defendant also had failed to provide any evidence concerning the location of

Fiorito’s residence. The court excluded the evidence, commenting that it had

admitted the Dhillon testimony over the prosecution’s objection because it


20

Defendant contends admission of the evidence “arbitrarily deprived him of

a state entitlement in violation of federal 5th and 14th Amendment due process
rights . . . and affected the reliability of the guilt verdict that later supported a
death judgment, violating [defendant’s] federal 8th and 14th Amendment rights.”
Because we have not found a violation of state law and because the evidence did
not undermine the reliability of the guilt verdict, we reject this claim.

120

described an event bearing many common marks with the charged crimes, in that

it took place at the same time of day and in the same location as some of the

charged murders, the same type of victim was targeted, and the same method of

entry into a home was attempted. By contrast, the court found no suggestion in

the evidence that a young African-American man had displayed interest in a

woman at a location and time different from those involved in the charged

offenses so as to link that event to the present case.

Contrary to defendant’s position, there was nothing in the proposed Faie

Fiorito testimony that would link the person she had seen watching her to the

charged crimes. The proposed testimony would not have provided “direct or

circumstantial evidence linking the third person to the actual perpetration of the

crime.” (Hall, supra, 41 Cal.3d at p. 833.) Defendant’s attempt to equate the

Fiorito testimony with the testimony of Cotalessa-Ritchie is unavailing. As

explained, the latter testimony described an event that occurred close in time and

place to two of the charged murders and that shared significant common marks

with the charged crimes.

Defendant contends the evidence in question was admissible on an

additional ground — to rebut the prosecution’s evidence linking defendant to the

Miramar Road Family Fitness Center. Defendant’s offer of proof did not pertain

to any purported impeachment value of the evidence, however, nor did the trial

court rule upon any such claim. Accordingly, this claim is forfeited. (Evid. Code,

§ 353; People v. Partida, supra, 37 Cal.4th 428 at pp. 434-435 [stating the general

rule in the context of an Evidence Code section 352 objection, but permitting the

defendant to make a narrow due process argument on appeal based upon such a

statutory objection at trial].) Nor do we believe this evidence would have had any

value for impeachment purposes.

121

Defendant complains that it was a violation of basic principles of fairness to

admit testimony by Cotalessa-Ritchie but to exclude Fiorito’s testimony, and that

the court’s error in this regard violated various of his constitutional rights.21 Even

if this claim was not forfeited, it is not persuasive. Cotalessa-Ritchie identified

defendant and described behavior occurring in the same location, at the same time

of day, in the same general period, and of a nature similar to the conduct of the

person who murdered Tarr and Weinhold. The circumstance that Fiorito observed

a person do something different at a location different from any involved in the

present crime and at a different time of day, and that this person was not

defendant, is not much more probative than recounting the activities of any young

man of the same racial background as defendant who exhibited interest in a young

White woman in San Diego at any time of day during the period in which the

murders were being committed. The only other point of similarity is that Fiorito

described an incident that occurred at a Family Fitness Center but, as noted, it was

a facility different from any connected to any of the crimes underlying the present

case.



13. Prosecutorial misconduct

Defendant contends the prosecutor committed misconduct in his opening

statement to the jury by assertedly exaggerating the probative value of a DNA

analysis comparing the semen found at the scene of the Weinhold murder with a


21

We also are unpersuaded by defendant’s claims that the “inconsistent”

rulings on the Fiorito and Cotalessa-Ritchie testimony constituted an arbitrary and
fundamentally unfair application of state evidentiary rules (see U.S. Const., 5th &
14th Amends; Hicks v. Oklahoma, supra, 447 U.S. 343, 346) and a deprivation of
the right to a fair jury trial in accordance with due process of law, to present all
relevant evidence, to compulsory process, to confrontation, and to reliable
factfinding (citing U.S. Const., 5th, 6th, 8th, & 14th Amends).

122

sample of defendant’s blood. Defendant asserts the prosecutor committed further,

similar misconduct in examining the experts he called to explain the evidence and

in relying upon this evidence in his closing argument to the jury. Defendant

argues the prosecutor improperly attributed more weight to the evidence than it

deserved, by characterizing the scientific analysis that had been employed as

“conservative.” He claims that, at the hearing the court conducted pursuant to

People v. Kelly (1976) 17 Cal.3d 24 to assess the admissibility of new scientific

evidence, the prosecutor failed to establish there was general agreement in the

scientific community that the analysis used was, in fact, conservative. 22

22

The DNA evidence in the present case was subjected to an analysis using

the so-called modified product rule.


In testing genetic material for forensic purposes, the final part of the

analysis is a calculation of the statistical probability that a characteristic found in
the crime scene sample and the defendant’s sample would be represented in
sample genetic material from a random selection of the population. A statistical
operation known as the product rule is employed. “ ‘The product rule states that
the probability of two events occurring together is equal to the probability that the
first event will occur multiplied by the probability that the second event will
occur.’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1250, fn. 5.) Originally the
“product rule” was the subject of spirited debate, some population geneticists
arguing that the relevant random samples were composed without regard to
“population substructures,” that is without adequately accounting for subgroups
among various ethnicities. In response, the product rule was artificially modified
to produce a conservative result in order to avoid overstating the incriminating
value of the test result, and this court concluded that the modified rule had been
accepted in the scientific community and produced evidence admissible under this
court’s Kelly standard. (People v. Venegas (1998) 18 Cal.4th 47, 85, 87, 89.) It
was the product of this modified statistical operation that the trial court in the
present case determined was generally accepted in the relevant scientific field.
The prosecution experts testified accordingly. This court subsequently recognized
that additional research had resolved the scientific controversy that led to the
modified product rule, leaving intact the integrity of the unmodified product rule.
(People v. Soto, supra, 21 Cal.4th at p. 538 [“[s]everal developments . . . indicate
that the controversy over population substructuring and use of the unmodified
product rule has dissipated”].) Accordingly, in the present case the experts in fact

(footnote continued on next page)

123

In his opening statement to the jury, the prosecutor stated that the People’s

DNA experts would inform the jury that “using the most conservative methods,

that the odds of any person picked off the street matching this banding pattern that

Cleophus Prince shares with the person that left semen, sperm at the scene [of

Weinhold’s murder], is 1 out of 124,000.”

Prosecution witness Dr. Lisa Forman explained the basis for her evaluation

of the probability of a match between defendant’s blood sample and the sperm

sample found at the scene. She described her calculations and her estimate of the

probability of a match. The prosecutor inquired, “what number did you come up

with?” Dr. Forman replied: “using the most conservative model, the model that

shows the frequency to be as common as it could be in any population, the

likelihood that a random person would share those sets of band . . . is

approximately one in 120,000.” Later the prosecutor asked the witness whether

the number she had calculated was “an exceedingly conservative number?” and

she replied that it was. When Dr. Glenn Evans testified, the prosecutor asked

whether Dr. Forman’s “modified ceiling method” of calculating the probability of

a match was “an extraordinarily conservative estimate?” Dr. Evans replied that it

was “in fact much more conservative than many scientists would like to see. But

it is the most conservative estimate one can make. It gives every possible benefit

of the doubt.”

In closing argument to the jury, the prosecutor made use of the DNA

evidence. He reminded the jury that Dr. Forman testified that she applied “the

most conservative estimate of probabilities, the ones that would give Mr. Prince

(footnote continued from previous page)


did use a conservative method compared with the less conservative “unmodified
product rule.” (Ibid., see also id. at p. 541.)

124

the benefit of the doubt using scientific principles, even those most conservative

numbers said that it would be one-out-of 120,000 chance” of a random match.

The prosecutor added that Dr. Evans had confirmed this characterization of the

evidence “three or four times. He goes, every benefit is given. This is a

conservative number. Every benefit of the doubt is given ⎯ he repeated that ⎯

every step of the way.”

Defendant contends the references to “conservative” methods in reaching

the probability estimate, both in the prosecution witnesses’ testimony and during

the prosecutor’s own statements, constituted misconduct because they invited the

jury to speculate that a higher probability of a match actually existed. He suggests

that the testimony and argument constituted an effort to place before the jury

evidence that the court had deemed inadmissible at the Kelly hearing.

Defendant’s claim of prosecutorial misconduct is unpersuasive. First,

defendant forfeited this claim because he did not object upon that basis, either

during testimony or during the prosecutor’s argument, and there is no indication

an objection would have been futile or that an admonition would not have cured

any harm. (See People v. Welch, supra, 20 Cal.4th at p. 753.) Nor did he raise

such an evidentiary objection to the testimony of the experts. Further, the

prosecution presented ample evidence at the Kelly hearing that the modified

product rule was a conservative analytic method created in order to produce a less

incriminating result than would be produced by the unmodified product rule. (See

fn. 24, ante.) Nor did the prosecutor commit misconduct simply by commenting

upon admissible evidence. Defendant’s reference to the constitutional right to due

process of law and a reliable factfinding proceeding add nothing to his claim.

125



14. Closing the proceedings

A criminal defendant has a right to a public trial that is guaranteed by the

Sixth and Fourteenth Amendments to the United States Constitution and by article

1, section 15 of the California Constitution. (Waller v. Georgia (1984) 467 U.S.

39, 46; People v. Woodward (1992) 4 Cal.4th 376, 382.) Violation of this right

requires reversal of the judgment without examination of possible prejudice.

(People v. Woodward, supra, 4 Cal.4th at pp. 383-384.) Defendant contends the

court violated his right to a public trial by closing the courtroom during the brief

portion of FBI Special Agent Ankrom’s testimony that described a crime scene in

a murder committed subsequent to defendant’s arrest that remained under

investigation.

After considerable litigation, the trial court refused to quash a subpoena

directed to records of the San Diego County Sheriff’s Department concerning the

circumstances of a murder committed subsequent to defendant’s arrest. The

records at issue consisted of an autopsy report and a package of photographs taken

at the autopsy. Counsel were prohibited from copying the information and from

publishing or distributing the evidence or the results of their investigation

regarding that matter. The court explained that because the prosecution in the

present proceedings was relying in part upon evidence indicating that the charged

murders were “signature crimes” involving a single perpetrator, the defense was

entitled to explore the circumstances of another murder committed subsequent to

defendant’s arrest which, the court’s in camera review disclosed, bore certain

common marks with the charged crime. The court acknowledged the sheriff’s

claim that disclosure could impair an ongoing investigation, but concluded that on

balance the defendant’s interest in a fair trial required disclosure. The court did

not rule on the question whether defendant could examine witnesses on the subject

of the unsolved crime. The sheriff sought appellate review, but the Court of

126

Appeal denied the petition for writ of mandate as premature, noting that the trial

court had not yet determined whether the evidence was admissible and had

otherwise demonstrated awareness of the sheriff’s concerns. The Court of Appeal

“presume[d] the court will take appropriate precautions should it become

necessary to admit the material.”

At trial, defense counsel sought permission to use the materials to cross-

examine the coroner, Dr. Blackbourne. The court granted permission, limiting

questioning to the facts of the autopsy. The name of the victim, the location and

precise time of the crime, and evidence discovered at the crime scene were not to

be mentioned. Defense counsel questioned the coroner briefly as to the nature of

the stab wounds in the unsolved case, and the prosecution questioned the

witnesses concerning the dissimilarities between the unsolved crime and the

murders charged in the present case.

The issue in question arose again in the context of FBI Special Agent

Ankrom’s testimony. As described above, Ankrom testified that a number of

similarities among the six charged murders justified the conclusion that a single

person had committed all the crimes. He referred to the position of the bodies, the

number and placement of the wounds, and certain other circumstances. Defendant

sought permission to examine Ankrom concerning the circumstances of the other

murder that occurred while defendant was in custody, claiming it bore significant

similarities to the charged crime and that the evidence supported the inference that

the perpetrator of the unsolved crime — who could not have been defendant —

might be responsible for the murders charged against defendant. The prosecutor

also requested the court’s permission to examine Ankrom concerning details of the

crime scene in the unsolved case. He pointed out Dr. Blackbourne already had

testified concerning this unsolved crime, and that he needed to examine Ankrom

127

to establish that there were important distinctions between the method of killing in

the other crime and the charged murders.

The court permitted examination of Ankrom under the same limitations as

those applied to Dr. Blackbourne. Defendant elicited testimony that the unsolved

murder bore certain similarities to the charged murders, in that it involved a White

woman murdered in her residence who suffered more than 20 stab wounds and

was discovered in a state of partial undress. The prosecution elicited testimony

that Ankrom believed the unsolved murder was not committed by the person who

committed the charged murders.

During the prosecutor’s questioning, Ankrom volunteered some details

concerning the unsolved crime, but the court intervened. A hearing followed on

the question whether the details of the unsolved crime could be the subject of

further examination. Because of the confidential nature of the information, the

court suggested it might be required to close the proceedings to the public.

Counsel for the San Diego County Sheriff objected to any examination that

would touch on details of the unsolved crime, particularly the crime scene. The

objections were based on the theory that public dissemination of such information

would compromise an ongoing investigation into the unsolved crime. After

conducting extensive hearings, the trial court concluded that defendant’s

constitutional right to present a defense and confront his accusers required that the

questioning be permitted to go forward, but agreed with counsel for the sheriff that

the public would be excluded if either counsel examined Ankrom concerning the

“crime scene facts” underlying the unsolved murder, including certain facts that

were unknown to the public, such as the nature of the fatal injuries involved in the

other crime. Both defendant and the prosecutor objected.

The trial court acknowledged the right to a public trial, but noted that the

right may be curtailed as necessary to serve some “higher value,” including, in the

128

court’s view, “insuring the integrity of an ongoing murder investigation.” The

court explained that the sheriff feared that the disclosure of crime scene

observations and photographs of the victim would “prevent the sheriff from

effectively interviewing potential subjects or targets of the investigation, would

create problems from the standpoint of a confession, if confessions are made.”

The court acknowledged that a trial must be open absent a compelling contrary

interest, but concluded after reviewing various options that the potential for

interference with the apprehension of the murderer constituted such an interest. “I

do find that revealing this detailed information concerning the crime scene,

photographs of the victim live or this autopsy would clearly affect the likelihood

of the sheriff’s successful investigation of this crime, I think closure is the

appropriate method of dealing with this issue. [¶] . . . I’ll give this notice to all

counsel at this point. Any examination of the witness which does not deal with the

details of the crime scene should and must be done in open court as a part of the

public process. [¶] I will order the proceedings closed if and only if the

examination deals specifically with crime scene facts, description of the crime

scene in this unsolved case, photographs of the autopsy of the victim in the

unsolved case showing the nature of the wounds or live photographs of the victim.

[¶] Any other matter other than that information, that could prevent the sheriff

from successfully apprehending the perpetrator in this unsolved case will be done

in open court.” The court explained that it was referring to “very specific

information that could only be known to the killer . . . because I want to keep that

information out of the public record because that is precisely the type of

information that will prevent the sheriff from apprehending the killer who is at

large at this point.”

Thereafter, when the prosecution and the defense questioned Ankrom

concerning the evidence disclosed at the crime scene in the unsolved murder, the

129

courtroom was closed to spectators. The questions during the closed sessions

related solely to crime scene evidence and autopsy photographs, as directed by the

court. Those portions of the closing arguments that touched upon the sensitive

crime scene evidence also occurred in closed session.

The United States Supreme Court “has made clear that the right to an open

trial may give way in certain cases to other rights or interests, such as the

defendant’s right to a fair trial or the government’s interest in inhibiting disclosure

of sensitive information. Such circumstances will be rare, however, and the

balance of interests must be struck with special care. We stated the applicable

rules in Press-Enterprise: [¶] ‘The presumption of openness may be overcome

only by an overriding interest based on findings that closure is essential to

preserve higher values and is narrowly tailored to serve that interest. The interest

is to be articulated along with findings specific enough that a reviewing court can

determine whether the closure order was properly entered.’ ” (Waller v. Georgia,

supra, 467 U.S. at p. 45; see also NBC Subsidiary (KNBC-TV) Inc. v. Superior

Court (1999) 20 Cal.4th 1178, 1181.)

Similarly this court has explained that “a public trial ordinarily is one ‘open

to the general public at all times.’ [Citations.] The Sixth Amendment public trial

guarantee creates a ‘presumption of openness’ that can be rebutted only by a

showing that exclusion of the public was necessary to protect some ‘higher value,’

such as the defendant’s right to a fair trial, or the government’s interest in

preserving the confidentiality of the proceedings. [Citation] When such a ‘higher

value’ is advanced, the trial court must balance the competing interests and allow a

form of exclusion no broader than needed to protect those interests. [Citation.]

Specific written findings are required to enable a reviewing court to determine the

propriety of the exclusion.’ [Citations.]” (People v. Woodward, supra, 4 Cal.4th

at p. 383, relying primarily on Waller v. Georgia, supra, 467 U.S. 39]. )

130

In the present case, the trial court reasonably concluded that the

governmental and public interest in apprehending a dangerous criminal justified a

very minor infringement upon defendant’s right to a public trial — but only during

a limited portion of examination of a single witness and a brief segment of the

argument to the jury. The trial court balanced defendant’s right to present a

defense and his right to a public trial with the “government’s interest in inhibiting

disclosure of sensitive information.” (Waller v. Georgia, supra, 467 U.S. at pp.

45, 48.) Although “[s]uch circumstances will be rare” and “the balance of

interests must be struck with special care” (id. at p. 45), we believe that the trial

court in the present case identified an overriding state interest in keeping secret

certain limited details concerning an unsolved crime. These details concerned

evidence that would be known only to the perpetrator — details that clearly should

be kept confidential for use in questioning witnesses. The closure affected only a

small portion of a single witness’s testimony and of the parties’ argument to the

jury on that portion of the evidence — the public was not excluded from a

substantial portion of the trial or pretrial hearings. (See People v. Woodward,

supra, 4 Cal.4th at p. 384.)23


23

We find support for our conclusion in decisions from other jurisdictions. In

U.S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, for example, the court commented
that the right to a public trial is not absolute, but on occasion “must give way . . .
to other interests essential to the fair administration of justice. [Citations.] [¶]
Federal courts have recognized limitations on that right where a judge has
excluded spectators during a witness’s testimony for a justifiable purpose,” noting
cases that permit carefully tailored closure to protect witnesses from harassment
and physical harm. (Id. at p. 1356.) Many decisions have approved limited
closure during the testimony of undercover officers, both in the interest of the
officer’s personal safety and to prevent disruption of the officer’s ongoing
investigations
. (Ayala v. Seckard (2d Cir. 1997) 131 F.3d 62, 72 [closure during
undercover officer’s testimony to maintain effectiveness of undercover
operations]; United States ex rel. Lloyd v. Vincent (2d Cir. 1975) 520 F.2d 1272,

(footnote continued on next page)

131

In the present case, an ample record demonstrates that the trial court’s

concern for the ongoing investigation of the unsolved crime justified the very

limited closure of the courtroom that occurred. The court carefully weighed the

competing interests involved and the options available to it, keeping the closure to

the minimum necessary to serve the state’s interest. As contemplated by the high

court in the Waller decision, these brief closures did not infringe upon defendant’s

right to a public trial.



15. Cumulative prejudice

Defendant contends cumulative prejudice requires reversal of the guilt

verdict, noting that the jury deliberated for portions of 10 days. He alleges he was

deprived of a fair trial and reliable guilt determination in violation of state and

federal constitutional principles.

We have not identified any significant errors at the guilt phase, nor do we

believe there was cumulative prejudice.

Defendant claims that the charges were inflammatory and that the jury

probably placed the burden of proof upon him, and that the circumstance that the

jury convicted him of every charge, even those as to which he believes there was

insufficient evidence, indicates the jury did not deliberate carefully. Defendant

contends that even if the trial court did not err in refusing to grant the motion for

change of venue, the effect of the intense pretrial publicity and the admission of


(footnote continued from previous page)


1274, and cases cited [same]; People v. Hinton (N.Y. 1972) 286 N.E.2d 265, 267
[closure because of the danger to investigative agent’s effectiveness and personal
safety;] see People v. Gonzalez (N.Y. App.Div. 2000) 716 N.Y.S.2d 23; see also
Sevencan v. Herbert (2d Cir. 2002) 316 F.3d 76, 84-85 [officer’s safety was
involved, and the closure served an overriding interest and was no broader than
necessary].)

132

signature-crime evidence undermined the fairness of the trial to his prejudice. He

urges that the evidence was insufficient in many respects and that even if we find

otherwise, it was extremely weak.

In essence, defendant asks us to reevaluate the evidence, claiming that

assuming it was sufficient, the evidence was “close” and the eyewitness

identifications were weak when factors discussed by his identification expert are

considered. He contends his possession of jewelry belonging to the victims was

not conclusive evidence that he was involved in stealing the jewelry. But all of

this evidence was for the jury to consider; it is not our function to reevaluate the

evidence to conclude whether the jury should have reached a different result on

the theory that the evidence was close. (See People v. Manriquez (2005) 37

Cal.4th 547, 578.) Nor do we agree that serious prosecutorial misconduct

undermined the identification of defendant as the perpetrator, arising from the

circumstance that the witnesses and the prosecutor commented, without objection,

on the presence of defense counsel at the lineup.

We have not found error as to any of these claims, and we are not

persuaded by defendant’s suggestion that a number of issues he regards as “close”

should require reversal on the ground of cumulative prejudice.



B. Claims affecting the penalty phase of the trial

1. Motion for a separate penalty phase jury

After the guilty verdicts had been entered, defendant moved for a new

penalty phase jury, citing the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution. After hearing argument, the court denied the

motion.

Contrary to defendant’s claim on appeal, he was not entitled to a separate

jury for the penalty phase of the trial. Section 190.4, subdivision (c) “requires

133

that, absent good cause, the same jury decide guilt and penalty at a capital trial.”

(People v. Earp (1999) 20 Cal.4th 826, 890.) The statute expresses a long-

standing preference for a single jury to decide guilt and penalty (ibid.), and we

have rejected claims that this preference in itself constitutes a denial of due

process of law or violates the defendant’s right to a fair trial and reliable guilt and

penalty determination. (People v. Horton (1995) 11 Cal.4th 1068, 1094.)

“Good cause to discharge the guilt phase jury and to impanel a new one

must be based on facts that appear ‘ “ ‘in the record as a demonstrable reality,’ ” ’

showing the jury’s ‘ “ ‘inability to perform’ ” ’ its function.” (People v. Earp,

supra, 20 Cal.4th at p. 891; People v. Bradford (1997) 15 Cal.4th 1229, 1354, and

cases cited.) We review the court’s denial of defendant’s motion for a second jury

for abuse of discretion. (People v. Bradford, supra, 15 Cal.4th at p. 1353.)

Defendant contends the court abused its discretion because it would be

impossible for a jury that had heard the guilt phase evidence to decide upon an

appropriate penalty. According to defendant, he was entitled to a new penalty

phase jury that had not heard at trial the evidence of the eight charged burglaries

and six charged attempted burglaries — offenses that, defendant asserts, were

unconnected with the capital crimes. He claims the burglaries and attempted

burglaries could not be considered in aggravation pursuant to section 190.2, factor

(b), because they did not involve force or violence.

Defendant’s argument fails because, as we explain post, the court

appropriately determined that the evidence of the noncapital burglaries properly

could be considered in aggravation under section 190.3, factor (b), as evidence of

prior “criminal activity . . . which involved the use or attempted use of force or

violence or the express or implied threat to use force or violence.”

Defendant contends that even if the burglary and attempted burglary counts

properly were considered under section 190.3, factor (b), reversible error still

134

occurred because the trial court did not instruct the jury how it should determine

whether or not these crimes involved force or violence within the meaning of

section 190.3, factor (b).24 Putting aside the tenuous connection between this

claim and defendant’s contention that the trial court abused its discretion in

denying his motion for a separate penalty phase jury, the claim fails because, as

we have held, instruction pursuant to the terms of section 190.3, factor (b)

suffices, and a clarifying instruction is not required. (People v. Dunkle (2005) 36

Cal.4th 861, 922.)25



2. Pitchess motion

The prosecution informed the defense that it would present in aggravation

the testimony of San Diego County Deputy Sheriff Samuel Sheppard, who would

recount an incident in which defendant had assaulted him in the county jail during

the course of the trial. After the guilt phase verdict had been entered but before

commencement of the penalty phase of the trial, defendant filed a motion seeking

24

The court instructed pursuant to section 190.3, factor (b), and pursuant to

CALJIC No. 14.50 on burglary.

25

Defendant claims that the court’s error in denying his motion for a separate

penalty phase jury violated various constitutional rights. He claims that when
good cause for a separate penalty phase jury has been shown, denial of a motion
for a separate penalty phase jury constitutes an arbitrary deprivation of a state
entitlement in violation of his right to due process of law. But he did not
demonstrate good cause for the empanelment of a separate jury. We also reject
defendant’s claims that this purported state law “error” rendered the penalty
verdict unreliable in violation of the Eighth and Fourteenth Amendments, that the
“taint” of the “inadmissible” burglary evidence deprived defendant of his right to a
fair jury trial by an unbiased factfinder in violation of the due process clause of the
United States Constitution, and that the “error” caused the jury to act without
adequate guidance in violation of the Eighth and Fourteenth Amendments. Nor
did the unitary jury so “skew” the balancing process that defendant was deprived
of his right under the Eighth Amendment to have the jury fairly consider his
evidence in mitigation.

135

discovery of documents that recorded complaints against Sheppard for use of

excessive force on persons in custody. (See Pitchess v. Superior Court (1974) 11

Cal.3d 531 (Pitchess).) In support, defendant supplied defense counsel’s

declaration recounting the officer’s asserted use of force against defendant and

also alleging that other individuals had filed complaints against the officer for use

of excessive force. Defendant demanded all written records of any instance of the

officer’s use of force on any person in custody, names, addresses, and telephone

numbers of all persons who had submitted complaints against the officer, and any

documents recording disciplinary actions taken or investigations or possible

disciplinary action to be taken against Sheppard related to the deputy’s treatment

of persons in custody.

The San Diego County Sheriff did not oppose defendant’s request for

names, addresses, and telephone numbers of complaining parties and witnesses

involved in complaints against Deputy Sheppard during the previous five years,

but the sheriff opposed release of any other material. The court evidently

concluded that defendant had made a showing sufficient to require the court to

order the sheriff’s department to produce the records for the court’s examination.

The court conducted an in camera hearing and reviewed the sheriff’s department

records. Neither the prosecutor nor defense counsel were present at that hearing.

Subsequently, on the record, the court concluded that “good cause is shown

to provide counsel with a list of witnesses which will be provided to all parties and

a protective order will issue as to this list,” but the court ruled good cause did not

exist to order disclosure of any other material named in defendant’s discovery

motion.

On July 19, 1993, a disclosure and protective order was filed. It directed

the sheriff’s department to disclose to defendant “the names[] of complainants and

witnesses regarding allegations of excessive force or violence by Deputy . . .

136

Sheppard . . . , for the five-year period immediately preceding the arrest of the

defendant,” subject to a protective order prohibiting dissemination of the

information.

Defendant contends the trial court infringed upon his constitutional rights,

because he could not examine the sealed record of the in camera hearing in the

trial court to determine whether the court ruled correctly on his discovery

motion.26 More specifically, he contends that the Fifth and Fourteenth

Amendments to the United States Constitution guarantee that he have access to a

full and accurate record for the purpose of appellate review. He asserts the silence

of the record undermines the reliability of the death judgment, and that his Sixth

Amendment rights to confrontation and to counsel are implicated.

We are not persuaded by defendant’s constitutional claims.

“[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.]” (People v. Rogers, supra, 39 Cal.4th at pp. 857-858.) It is


26

On October 17, 2001, we denied defendant’s motion to unseal the transcript

of the in camera Pitchess hearing.

137

also “defendant’s burden to show that deficiencies in the record are prejudicial.”

(People v. Howard (1992) 1 Cal.4th 1132, 1165.)

Defendant fails to demonstrate that the record is inadequate to permit

effective review in this court. The in camera hearing to which defendant alludes

was transcribed and has been examined by this court. The appellate record

available to defendant is not “so deficient as to create a substantial risk the death

penalty was being inflicted in an arbitrary and capricious manner” within the

meaning of the Eighth Amendment. (People v. Rogers, supra, 39 Cal.4th at

p. 857.) Moreover, the trial court proceedings properly occurred in camera and

were sealed, as were the documents that formed the basis for the trial court’s

ruling. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)

Certainly, a defendant’s right to discovery is intended to ensure a fair trial

and an informed defense based upon “ ‘ “all relevant and reasonably accessible

information.” ’ ” (People v. Gonzalez (2006) 38 Cal.4th 932, 960.) On the other

hand, defendant’s right to counsel, to put on a defense, and to confrontation were

not violated simply because the court followed the practice we outlined in Pitchess

and have endorsed for many years, a practice we have concluded adequately

balances the defendant’s right to a fair trial with the officer’s right of privacy.

(See Pitchess v. Superior Court, supra, 11 Cal.3d 531; see also People v. Samuels

(2005) 36 Cal.4th 96, 109; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1043;

City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14-16; People v. Mooc,

supra, 26 Cal.4th at pp. 1226-1227, 1229; City of San Jose v. Superior Court

(1993) 5 Cal.4th 47, 50-53.)

In the present case, the trial court found good cause to examine the

evidence concerning possible complaints against the officer. The proceedings

conducted by the court were consistent with the standard we have established. As

we have stated, the court should “review[] the pertinent documents in chambers

138

and disclose[] only that information falling within the statutorily defined standards

of relevance. [Citations.] The trial court may not disclose complaints more than

five years old, the ‘conclusions of any officer’ who investigates a citizen

complaint of police misconduct, or facts ‘so remote as to make [their] disclosure

of little or no practical benefit.’ [Citations.] Typically, the trial court discloses

only the names, addresses, and telephone numbers of individuals who have

witnessed, or have previously filed complaints about, similar misconduct by the

officer. [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.)

The trial court followed precisely the procedure we have outlined.27

This court routinely independently examines the sealed records of such in-

camera hearings to determine whether the trial court abused its discretion in

denying a defendant’s motion for disclosure of police personnel records. (See

People v. Lewis & Oliver (2006) 39 Cal.4th 970, 992; People v. Chatman, supra,

38 Cal.4th at p. 398; People v. Samuels, supra, 36 Cal.4th at pp. 110-111; People

v. Hughes, supra, 27 Cal.4th at p. 330 [noting that customarily appellate counsel

are not permitted to view transcripts of sealed Pitchess motion hearings].)

The record in the present case is adequate to permit meaningful appellate

review. It includes a full transcript of both segments of the in camera hearing and

the documents that formed the basis for the court’s conclusion that defendant was

not entitled to the complaints that had been filed against Sheppard. The court

directed that the officer’s personnel file not be copied and inserted into the record,

but the court adequately stated for the record the contents of that file. (See People

27

Defendant suggests that his trial counsel’s presence at the in camera

hearing, along with the opportunity to examine witnesses, might have elicited
exculpatory evidence, otherwise supported his defense in the present case, or
given rise to unknown constitutional claims of error, but this claim finds no
support in the record we have reviewed.

139

v. Mooc, supra, 26 Cal.4th at p. 1229 [in some circumstances it suffices for the

court to “state for the record what documents it examined”].) The court noted that

there was not a single item indicating that Sheppard ever had suffered discipline

for any reason.

We have reviewed the record under seal and independently conclude that

the trial court did not abuse its discretion in its ruling upon the Pitchess motion.

(See People v. Hughes, supra, 27 Cal.4th at p. 330 [an abuse-of-discretion

standard of review applies].) Moreover, the trial court ordered disclosure of the

names of complainants and witnesses in the first two incidents (the third being the

one involving the complaint filed by defendant). Defendant had access to the

information needed to explore the possibility that the deputy had been involved in

the prior use of excessive force. Defendant offers no explanation why this

information was inadequate, nor do we find any.



3. Victim-impact evidence

After appropriate objections from defendant and hearings held on several

occasions, the court permitted the prosecution to introduce a videotape of a 25-

minute interview of Holly Tarr that had been taped a few months prior to her

death. Defendant contends the tape was inflammatory and went beyond the type

of so-called victim-impact evidence that may be admitted consistently with

constitutional principles. He claims a violation of his right to a fundamentally fair

trial and to confront and cross-examine witnesses, citing the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution. In addition, he claims

the introduction of the evidence and its probable emotional impact upon the jury

violated his right to due process of law and a reliable penalty determination, citing

Evidence Code section 352 and the Fifth, Eighth, and Fourteenth Amendments.

140

In a capital trial, Eighth Amendment principles ordinarily do not prevent

the sentencing authority from considering evidence of “the specific harm caused

by the crime in question.” (Payne v. Tennessee (1991) 501 U.S. 808, 825.) The

high court has explained that the prosecution has a legitimate interest in rebutting

the mitigating evidence that the defendant is entitled to introduce by introducing

aggravating evidence of the harm caused by the crime, “ ‘reminding the sentencer

that just as the murderer should be considered as an individual, so too the victim is

an individual whose death represents a unique loss to society and in particular to

his family.’ ” (Ibid.) “[W]e also have found such evidence (and related ‘victim

character’ evidence) admissible as a ‘circumstance of the crime’ under section

190.3, factor (a).” (People v. Robinson, supra, 37 Cal.4th at p. 650, and cases

cited.) We have cautioned, however, “that allowing such evidence under factor (a)

‘does not mean that there are no limits on emotional evidence and argument.’ ”

(Id. at p. 651, quoting People v. Edwards (1991) 54 Cal.3d 787, 836.)28 “ ‘ “The

jury must face its obligation soberly and rationally, and should not be given the

impression that emotion may reign over reason.” ’ ” (People v. Robinson, supra,

37 Cal.4th at p. 651.)


28

Defendant contends that this court’s decision in People v. Edwards, supra,

54 Cal.3d 787, limits victim impact evidence to “evidence that logically shows the
harm caused by the defendant.” (Id. at p. 835.) He suggests that victim impact
evidence must be such as to portray the victim as he or she was when the
defendant confronted the victim and that the videotape “showed far more than
what she was like when her killer saw her, thereby going well beyond showing the
harm caused by the killer.” We reject the assertion, as we have rejected similar
claims in other cases, that our law disallows “evidence of the victim’s
characteristics that were unknown to his killer at the time of the crime.” (People
v. Roldan
(2005) 35 Cal.4th 646, 732, and cases cited, fn. omitted.)

141

Defendant contends the tape-recorded interview was emotionally

inflammatory, thereby creating a danger that the jury would reach a decision based

purely upon emotion. He claims that under constitutional principles and in

accordance with Evidence Code section 352, the prosecution should not have been

permitted to introduce victim-impact evidence “in which an attractive, articulate,

and talented young performer with a stage background literally comes back from

the dead to share her plans and dreams with the jury.” He characterizes the

videotape as an “extraordinarily emotional presentation.”

We have viewed the videotape recording. It comprises a 25-minute

interview with the victim, Holly Tarr, conducted at a local television station in the

community of Okemos, Michigan. The court also admitted a transcript of the

interview, which was provided to defense counsel and members of the jury prior to

the playing of the tape. The trial court excluded portions of the videotape

depicting Tarr’s musical performances, because it determined that this evidence

would be cumulative. The interviewer devoted nearly the entire interview to

Tarr’s training and interest in acting and singing, adding a few questions

concerning Tarr’s ability to balance school and artistic commitments. The tape

recording exhibits a young female interviewer and Tarr, seated in chairs in front of

a plain backdrop. There is no music and there are no cuts to other images of

Tarr — the interview is a calm, even static, discussion of Tarr’s accomplishments

and interests that takes place entirely in a neutral, bland setting. Under ordinary

circumstances, the two young women’s discussion would appear unlikely to invite

empathy or emotional response.

The jury viewed the videotape near the conclusion of the victim-impact

testimony, and the tape was both preceded and succeeded by brief testimony from

Tarr’s mother. Prior to the playing of the videotape, testimony on the same

subject was contributed by her natural father, Paul McKean Tarr, Jr., and her

142

stepfather, Mark Rubin. Mr. Tarr spoke at length about his daughter’s love for the

theatre as well as the drastic effect her murder had had upon his life. Rubin barely

spoke his own name before he was reduced to tears, requiring a recess to permit

him to compose himself. The jury already had heard testimony from five other

family members of victims Schultz, Weinhold, and Keller.

Case law pertaining to the admissibility of videotape recordings of victim

interviews in capital sentencing hearings provides us with no bright-line rules by

which to determine when such evidence may or may not be used. We consider

pertinent cases in light of a general understanding that the prosecution may present

evidence for the purpose of “ ‘reminding the sentencer . . . [that] the victim is an

individual whose death represents a unique loss to society’ ” (Payne v. Tennessee,

supra, 501 U.S. at p. 825), but that the prosecution may not introduce irrelevant or

inflammatory material that “ ‘diverts the jury’s attention from its proper role or

invites an irrational, purely subjective response.’ ” (People v. Edwards, supra, 54

Cal.3d at p. 836.)

In one capital case, the court rejected a relevance challenge to the

admission of a videotape recording that was used to demonstrate a particular skill

for which a victim was nationally recognized. (Whittlesey v. State (Md. 1995) 665

A.2d 223.) In Whittlesey, the court approved the admission of a 90-second

videotape of a murder victim playing the piano. The court agreed with the trial

court that the tape could illustrate the victim’s talent better than any photograph.

(Id. at p. 251.) In response to defense objections that testimony provided by the

victim’s parents rendered such evidence cumulative, the court stated that “[i]n

reviewing objections based on relevance, great deference is afforded the trial judge

in regulating the conduct of a trial.” (Ibid.)

Another court permitted introduction of a videotape recording that had been

condensed to three minutes, determining that the evidence fell within the accepted

143

category of a “ ‘ “ ‘quick glimpse of the life which [the defendant] chose to

extinguish.’ ” ’ ” (State v. Allen (N.M. 1999) 994 P.2d 728, 751.) The court in

that capital case also noted that a photograph from the same videotaped event had

been presented to the jury without objection. (Ibid.; see also State v. Gray (Mo.

1994) 887 SW2d 369, 389 [videotape of victim’s family at Christmas held

admissible].)

On the other hand, two courts were particularly reluctant to allow videotape

evidence that served as a memorial to the victim, finding that the probative value

of such evidence was outweighed by the risk of unfair prejudice to the defendant.

(See U.S. v. Sampson (D.Mass. 2004) 335 F.Supp.2d 166; Salazar v. State

(Tex.Crim.App. 2002) 90 S.W.3d 330.) In Sampson, the court excluded a 27-

minute videotape that consisted of 200 still photographs depicting the victim at

various stages of life from birth until death, set to “evocative contemporary

music.” (U.S. v. Sampson, supra, 335 F.Supp. at p. 191.)

Reviewing facts that we characterized as “extreme” (People v. Robinson,

supra, 37 Cal.4th at p. 652), the Texas Court of Criminal Appeals disapproved of

similar videotape evidence in Salazar v. State, supra, 90 S.W.3d 330, finding that

in this noncapital case the trial court had abused its discretion in admitting a 17-

minute videotape tribute to a murder victim. In remanding for an assessment of

prejudice, the court stated in Salazar that “the punishment phase of a criminal trial

is not a memorial service for the victim” (id. at pp. 335-336) and that “[w]hat may

be entirely appropriate eulogies to celebrate the life and accomplishments of a

unique individual are not necessarily admissible in a criminal trial.” (Id. at p.

336.) The court complained that the trial court had not seen the videotape before it

was played to the jury and consequently was unable to weigh the probative value

of the tape against its prejudicial impact. (Id. at pp. 336-337.) The reviewing

144

court emphasized the risk of unfair prejudice, noting the video contained many

images from the adult victim’s infancy and childhood. (Id. at pp. 337-338.)

Courts must exercise great caution in permitting the prosecution to present

victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the

victim. Particularly if the presentation lasts beyond a few moments, or emphasizes

the childhood of an adult victim, or is accompanied by stirring music, the medium

itself may assist in creating an emotional impact upon the jury that goes beyond

what the jury might experience by viewing still photographs of the victim or

listening to the victim’s bereaved parents. The trial court in the present case

clearly understood the power of this type of evidence, commenting early in the

proceedings that “I have a great deal of concern about the medium of a videotape

creating a situation of grave prejudice,” and that “there is a qualitative difference

between a videotape and a still photograph from an emotional standpoint.” In

order to combat this strong possibility, courts must strictly analyze evidence of

this type and, if such evidence is admitted, courts must monitor the jurors’

reactions to ensure that the proceedings do not become injected with a legally

impermissible level of emotion.

Although we caution courts against the routine admission of videotapes

featuring the victim, we do not believe that prejudicial error occurred under the

circumstances of the present case. The videotaped evidence did not constitute

“ ‘irrelevant information or inflammatory rhetoric that divert[ed] the jury’s

attention from its proper role or invite[ed] an irrational, purely subjective

response.’ ” (People v. Edwards, supra, 54 Cal.3d at p. 836.) Unlike the material

presented in the Sampson and Salazar cases, as we have explained the videotaped

interview of Holly Tarr did not constitute an emotional memorial tribute to the

victim. There was no music, emotional or otherwise. The tape did not, as the trial

court in the present case initially feared it might, display the victim in her home or

145

with her family, nor were there images of the victim as an infant or young child.

The setting was a neutral television studio, where an interviewer politely asked

questions concerning the victim’s accomplishments on the stage and as a musician

and the difficulty she experienced in balancing her many commitments, touching

only briefly upon her plan to attend college in the fall and follow the stage as a

profession. If not for the circumstances of her subsequent murder, the videotape

admitted at trial likely would be of modest interest to anyone apart from Tarr and

her friends and family. The loss of such a talented and accomplished person is

poignant even for a stranger to contemplate, but the straightforward, dry interview

depicted on the videotaped recording was not of the nature to stir strong emotions

that might overcome the restraints of reason.

Significantly, the record on appeal also establishes that the trial court not

only excluded portions of the interview displaying Tarr in performance, it also

closely observed the jury for signs of emotional distress and made a careful record

of its observations. During the numerous hearings on the admissibility of the

videotaped evidence, the trial court repeatedly commented that it would not be

allowing the proceedings to be hijacked by “an emotional setting of pathos.” The

court scrutinized the jury for evidence of emotional response during the playing of

the tape, focusing on “not only the jurors but on all members of the spectating

audience.” At the completion of the interview, the court allowed only a few more

minutes of testimony from Tarr’s mother before dismissing the jury for the

remainder of the day. When the session resumed the following morning, the court

entertained further objections by defense counsel to the playing of the videotape.

The court addressed each of defense counsel’s contentions, ultimately concluding

that although there was in fact an emotional response from certain members of the

jury, the court “didn’t see emotion running roughshod over judgment.” The court

assured both the prosecution and defense counsel that if it had observed an overly

146

emotional response, it would not have hesitated to declare a mistrial, but that such

a response simply did not occur.

The trial court concluded that although jurors exhibited sadness, their

response was no stronger than they had displayed during the testimony given by

members of the victims’ families. According to the observations made by the

court, no one on the jury broke down and cried or appeared overcome by emotion.

The prosecutor did not exploit the emotional impact of the videotape, but instead

refrained from any mention of the taped interview in closing argument. Based

upon the nature of the evidence and the court’s close observation of the jury, we

conclude that defendant’s claims are without merit.

Defendant also contends his right to confront and cross-examine witnesses

was violated by the introduction of the videotaped interview. He argues the

admission of the videotaped interview “effectively amounted to having the victim

return from the grave to testify to legally irrelevant matters, with no opportunity

for the defense to confront and cross-examine this witness.”

The trial court found no merit in defendant’s argument, reasoning that the

videotaped interview was not being admitted for the truth of its recorded

statements. Rather, it was admitted to demonstrate to the jury Tarr’s “reactions to

the questions, her demeanor” and, the court further stated, “the content of the tape

is secondary.” The court surmised there would be no significant factual

revelations stemming from the playing of the videotape because much of the

information pertaining to Tarr’s interests and plans already had been presented to

the jury via testimony from the victim’s family members.

We agree with the trial court that the videotape recording was not offered

primarily for the truth of the statements it contained and that even if it was offered

in part for the truth of those statements, the information conveyed was cumulative

to other testimony as to which defendant did have an opportunity for cross-

147

examination. In addition, as we have explained, we are confidant that the

admission of the tape recording was not prejudicial under the circumstances of the

present case.

4.

Instruction on and jury’s consideration of the burglaries not

directly related to the murders

Defendant argued at trial that the jury should not be permitted to consider

certain guilt phase evidence as a circumstance in aggravation under section 190.3,

factor (b). Specifically, he asserted that the jury should not be permitted to

consider guilt phase evidence concerning the burglaries and attempted burglaries

that were not directly connected with the capital offenses. He argued that these

assertedly unrelated offenses did not come within section 190.3, factor (b),

because they did not involve force or violence.

The trial court disagreed with defendant. The court instructed the jury that

the burglaries and attempted burglaries may have involved the use of force or

violence or the express or implied threat of violence, but that it was for the jurors

to decide whether they believed beyond a reasonable doubt that defendant

committed those acts, whether they involved the use or attempted use of force or

violence or the expressed or implied threat to use force or violence, and whether

the acts were criminal. (The court instructed the jury that, as a matter of law,

perjury (one of the charged offenses) does not involve force or violence and could

not be considered under section 190.3, factor (b).)

Defendant contends on appeal that noncapital crimes of which a defendant

was convicted in the same proceeding never may be considered at the penalty

phase as evidence in aggravation under section 190.3, factor (b), whether the

crimes are violent or not. In support he cites People v. Miranda (1987) 44 Cal.3d

57 (disapproved on another point in People v. Marshall (1990) 50 Cal.3d 907), in

which we declared that factor (b) pertains “only to criminal activity other than the

148

crimes for which the defendant was convicted in the present proceeding.” (People

v. Miranda, supra, 44 Cal.3d at p. 106.) The quoted language does not carry the

meaning that defendant attributes to it, because the issue in the Miranda decision

involved the danger that a jury would double-count evidence under section 190.3,

factor (a) (circumstances of the crime) and factor (b) (other criminal activity

involving violence) ― not whether convictions in the same proceeding that were

unrelated to the capital crimes could be considered under factor (b). Evidence

presented at the guilt phase may be considered at the penalty phase of the trial

(§ 190.4, subd. (d)), and defendant offers no logical reason to support the

conclusion that evidence that otherwise would be admissible under factor (b)

would become inadmissible because of a joinder with capital offenses.

Defendant contends the charged burglaries and attempted burglaries that

were unconnected temporally with the capital offenses did not all involve violence

or the threat of violence. Defendant claims that “thirteen of the fifteen present

factor (b) burglaries and attempted burglaries did not involve any evidence of

arming or knife movement [sic] at all.” He contends the jury instructions on the

burglary and attempted burglary charges improperly permitted the jury to rely

upon the offenses as aggravating evidence even though they did not involve the

use or threat of force or violence, in violation of section 190.3, factor (b).

We disagree with defendant and agree with the trial court that, under the

circumstances of the present case, the evidence was sufficient to permit a rational

trier of fact to conclude beyond a reasonable doubt that the burglaries and

attempted burglaries involved at least an implied threat of violence. (See People

v. Clair (1992) 2 Cal.4th 629, 672-673 [stating standard].) We base our

determination on all the evidence concerning defendant’s use of violence in the

burglaries that culminated in the capital murders; his possession of knives (either

his own or those that originated in the home he was burglarizing) in various of the

149

capital and noncapital crimes; his stalking behavior in most of the noncapital

burglaries and attempted burglaries; his repeated attempts to burglarize residences

knowing that their young female inhabitants were at home and possibly were

showering; his violence during the Hughes-Webb burglary; his statement to his

accomplice Moheshea Beasley that if the resident of an apartment had appeared

unexpectedly during a burglary, he would have slit her throat; and Shirley

Beasley’s testimony that during one of their joint burglaries, defendant took a

knife from the kitchen of the burglarized residence and instructed Beasley that if

the resident returned, Beasley should step aside and defendant would “handle it.”

Shirley Beasley also testified that defendant told him that if a resident returned to a

house defendant was burglarizing, defendant would stab the person in the heart or

the neck. (See People v. Michaels (2002) 28 Cal.4th 486, 536 [illegal possession

of weapons along with evidence defendant used those or similar weapons in other

crimes could be considered under section 190.3, factor (b)]; see also People v.

Monteil (1993) 5 Cal.4th 877, 936 [actual or threatened violence in burglary];

People v. Tuilaepa (1992) 4 Cal.4th 569, 589 [illegal possession of weapon in

custody constitutes implied threat of violence]; People v. Clair, supra, 2 Cal.4th at

pp. 676-677 [evidence that defendant picked up a knife during a burglary “to avoid

apprehension and make good his escape” could be “an implied threat to use the

knife against anyone who might interfere”].)

Defendant contends the court’s instructions were inadequate to inform the

jury of its responsibilities, and he surmises that the standard instructions on

section 190.3, factor (b) would permit a juror to conclude that “any residential

burglary is a crime of violence, even if no force was used in making entry.”29

29

Defendant also complains that the court “never communicated to the jury”

its view that the burglaries were not “part of an overall scheme that included the

(footnote continued on next page)

150

Defendant’s principal contention seems to be that the court should have

afforded additional guidance on the meaning of the terms “force” and

“violence” ― terms he claimed involve “technical legal distinctions not a matter

of common knowledge.” We previously have rejected the identical claim, and

defendant offers no persuasive reason for us to reconsider our holding. (People v.

Dunkle, supra, 36 Cal.4th at p. 922 [rejecting state law and Eighth Amendment

claims].)30



5. Prosecutorial misconduct

Petitioner contends the prosecutor committed misconduct during his

questioning of defense expert James Park and during argument to the jury.

James Park, a former associate warden at San Quentin prison, testified on

defendant’s behalf. Park described prison conditions and the daily life

experienced by persons sentenced to life imprisonment without possibility of

parole. He described the generally “stabilizing” influence of life prisoners upon

prisoners serving shorter terms. During cross-examination, the court sustained

defendant’s objection to the prosecutor’s question whether the witness previously

had “personalized” his testimony. The prosecutor then asked whether the witness

was predicting “how he’s [defendant] going to do.” The witness stated he had not

testified to that effect. The prosecutor then asked: “But in the past, you’ve talked


(footnote continued from previous page)


murders.” The court’s point in making this declaration was to explain why it
rejected the prosecutor’s argument that all the noncapital burglaries and attempted
burglaries could be considered under section 190.3, factor (a), the circumstances
of the crime.

30

Having found no error, we also reject defendant’s claim that the asserted

error denied him various state and federal constitutional rights.

151

about a specific defendant doing well in prison? You predicted that, haven’t

you?” The defense successfully objected on relevance grounds.

According to defendant, the prosecutor’s questions insinuated that the

witness would not speak of defendant personally because the witness knew there

was nothing good that could be said about him. According to defendant, the

questions undermined important defense evidence in mitigation, and “[n]o

admonition could have undone the harm caused by this misconduct.” Defendant

alleges this purported misconduct rendered the penalty trial fundamentally unfair

and thereby constituted a denial of the right to due process of law under the United

States Constitution. In addition, “once the prosecutor used improper leading

questions to imply evidence that did not exist and would not have been relevant if

it did exist, there was no realistic manner in which the defense could have

‘confronted’ the improper implication. This deprived [defendant] of his federal

6th and 14th Amendment rights to confront and cross-examine the witnesses

against him . . . [and] effectively deprived [defendant] of his right to present

witnesses in his own behalf.” Defendant also claims denial of his constitutional

right to a reliable penalty phase determination and his constitutional right to have

the jury consider his evidence in mitigation.

The witness never answered the prosecutor’s questions. Defendant did not

seek an admonition to the jury to disregard the prosecutor’s questions, a

circumstance that ordinarily causes the forfeiture of a claim. Claims of

prosecutorial misconduct ordinarily are forfeited for the purpose of appeal unless

the defendant objects to the asserted misconduct at trial and requests an

admonition to the jury, or an admonition would not have cured the harm. (People

v. Fiereo (1991) 1 Cal.4th 173, 211.)

Moreover, the jury was instructed that the attorneys’ questions do not

constitute evidence, and that it should not speculate concerning the answer that

152

might have been given to a question or assume the truth of any insinuation

suggested by a question as to which an objection was sustained. As a general

matter, we may presume that the jury followed the instructions it was given

(People v. Cunningham (2001) 25 Cal.4th 926, 1014), and defendant has failed to

supply any persuasive reason to suppose the jury instead would have accepted as

evidence the insinuation allegedly implicit in the prosecutor’s questions.

Defendant also argues that in closing argument, the prosecutor improperly

appealed to the passions of the jury and invited the jury to engage in a mechanical

weighing process, in violation of various constitutional rights. Defendant points to

the prosecutor’s argument that the defense was inviting the jury to impose the

same penalty — life in prison without possibility of parole — that would have

been the minimum punishment had defendant committed only the offenses against

Janene Weinhold. The prosecutor pointed to the additional aggravating factors of

defendant’s five other murders. He suggested that defense counsel essentially

would be arguing that the other five murder victims did not count — that “these

women are freebies. Let’s throw these bodies in. And we are not going to exact

one more day, one more ounce of punishment against [defendant] for killing six

than we would the one.”

Defendant did not object to the argument, nor did he seek an admonition to

the jury. Under the circumstances, he forfeited any claim based on the principles

stated above. In addition, contrary to defendant’s claim, we do not believe that the

prosecutor told the jury that all multiple murders automatically warrant the death

penalty, nor do we believe his argument was an improper appeal to passion or

invited the jury to engage in a mechanical weighing process. The circumstances

of the charged capital crimes are appropriate factors in aggravation, and it is not

improper to suggest that a defendant who murders six persons is more culpable

153

and therefore should receive a more severe sentence than a defendant who murders

only one victim.

Defendant cites a decision filed by a majority of the Illinois Supreme Court

holding that a similar argument constituted reversible error at the penalty phase of

a capital murder trial. (People v. Kuntu (Ill. 2001) 752 N.E.2d 380, 403.) The

decision held that the prosecutor’s argument was a call to the jury to act on the

basis of passion and prejudice and also amounted to an argument that all multiple

murders automatically must be punished by death. (Ibid.) The prosecutor’s

reference to “five free murders,” the majority maintained, was “simply an

inflammatory statement with no basis in either law or fact; it is tantamount to the

conclusion that, as a matter of law, a person who kills more than two persons

should be sentenced to death.” (Ibid.) The decision concluded that standard jury

instructions informing the jury that the prosecutor’s argument does not constitute

evidence did not, under the particular facts of the case, cure the prosecutor’s

asserted misconduct. The court concluded that “[i]n light of the closely balanced

evidence presented at the penalty phase of the death sentencing hearing, the risk is

simply too great that the prosecutor’s comments improperly influenced the jury’s

sentencing decision.” (Id. at p. 404.)

We believe that the three dissenting justices in Kuntu took the better view.

As the dissent pointed out, and as we believe is true in the present case as well, the

prosecutor “at no time argued that the death penalty should always be imposed

when more than two persons are killed. Instead, the State implied, through its

comments, that the offense was particularly egregious and especially deserving of

the death penalty. The State commented, as it has a right to do, that defendant’s

crime was an atrocious crime that resulted in the senseless death of seven victims

. . . . Thus, the State’s comments, although inartful, were not misstatements of the

154

death penalty law and should not be construed in such a fashion.” (People v.

Kuntu, supra, 752 N.E.2d at p. 409 (dis. opn. of Fitzgerald, J.).)



6. Failure to exclude evidence of defendant’s possession of a

weapon while he was in custody

Defendant contends the trial court erred in determining that it lacked the

discretion ordinarily afforded by Evidence Code section 352 — which

acknowledges the court’s discretion to exclude evidence that is more prejudicial

than probative — to exclude evidence of defendant’s possession of a weapon in

jail as a factor in aggravation under factor (b).

In People v. Box (2000) 23 Cal.4th 1153, 1201, we declared that the trial

court retains its “traditional discretion” to exclude “ ‘particular items of [section

190.3, factors (a) or (b)] evidence’ ” that are to be used in a “ ‘manner’ that is

misleading, cumulative, or unduly inflammatory.” In addition, “factor (b)

evidence, even if it depicts the moral blameworthiness of the defendant, may

nonetheless be excludable under Evidence Code section 352 insofar as it unfairly

persuades jurors to find the defendant guilty of the crime’s commission.” (Ibid.)

Even assuming error under Box in the present case, any error could not have been

prejudicial. Defendant presents no reason for us to conclude that the evidence in

question was unduly inflammatory or prejudicial. He contends the evidence might

demonstrate that defendant was likely to be dangerous in the future, but such an

inference was proper.31


31

For the same reason that we rejected defendant’s state law claim, we reject

his claim that he suffered an arbitrary deprivation of the benefit of state law (Hicks
v. Oklahoma
, supra, 447 U.S. 343) and that he was deprived of the right to a
reliable penalty determination. (Woodson v. North Carolina, supra, 428 U.S.
280.)

155



7. Challenges to the California death penalty scheme

Defendant raises various constitutional challenges to the California death

penalty statute, but we reject them as we have done in prior cases.

a. Admitting evidence of prior unadjudicated crimes in aggravation does

not violate the Fifth, Sixth, Eighth, or Fourteenth Amendment guarantees of fair

trial, trial by an impartial jury, speedy trial, and reliability, or the prohibition on

placing persons twice in jeopardy for the same offense. (People v. Box, supra, 23

Cal.4th at p. 1217.)

b. Failure to require that the jury unanimously find the aggravating

circumstances true beyond a reasonable doubt, to find unanimously and beyond a

reasonable doubt that aggravating circumstances outweigh mitigating

circumstances, or to require a unanimous finding beyond a reasonable doubt that

death is the appropriate penalty does not violate the Fifth, Eighth, or Fourteenth

Amendment guarantees of due process and a reliable penalty determination.

(People v. Box, supra, 23 Cal.4th at p. 1217.)

The California death penalty statute is not unconstitutional in failing to

require the jury to make written findings concerning the aggravating

circumstances it relied upon, nor does the failure to require written findings

preclude meaningful appellate review. (People v. Morrison (2004) 34 Cal.4th

698, 730-731.) Neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Ring v.

Arizona (2002) 536 U.S. 584, nor Blakely v. Washington (2004) 542 U.S. 296

“affects California death penalty law or otherwise justifies reconsideration of the

foregoing decisions.” (People v. Morrison, supra, 34 Cal.4th at p. 731.) At oral

argument in the present case, defense counsel filed a letter that added a citation to

the high court’s recent, related decision in Cunningham v. California (2007) 549

U.S. __ [127 S.Ct. 856]. The Cunningham decision involves merely an extension

of the Apprendi and Blakely analyses to California’s determinate sentencing law

156

and has no apparent application to the state’s capital sentencing scheme. In

Apprendi, supra, 530 U.S. 466, the high court “found a constitutional requirement

that any fact, other than a prior conviction, which increases the maximum penalty

for a crime must be formally charged, submitted to the fact finder, treated as a

criminal element and proved beyond a reasonable doubt. [Citation.] But under

the California death penalty scheme, once the defendant has been convicted of

first degree murder and one or more special circumstances has been found true

beyond a reasonable doubt, death is no more than the prescribed statutory

maximum for the offense; the only alternative is life imprisonment without the

possibility of parole.” (People v. Anderson (2001) 25 Cal.4th 543, 589-590, fn.

14.) Defendant’s failure to supply any discussion or analysis of the Cunningham

decision leaves us with no basis to conclude that it should cause us to alter our

views.

c. The California death penalty statute does not fail to narrow the class of

persons eligible for the death penalty as required by the Eighth Amendment and

article 1, section 17 of the California Constitution. (People v. Gray, supra, 37

Cal.4th at p. 237; People v. Smithey (1999) 20 Cal.4th 936, 1017.)

d. Contrary to defendant’s claim, comparative intercase proportionality

review is not required by the United States Constitution. (People v. Snow (2003)

30 Cal.4th 43, 126, 127), but intracase proportionality review is available. (People

v. Hillhouse, supra, 27 Cal.4th at p. 511.)

e. The use of the terms “extreme” or “substantial” does not improperly

limit the jury’s consideration of mitigating evidence in violation of the Fifth,

Sixth, Eighth, or Fourteenth Amendments. (People v. Smith (2003) 30 Cal.4th

581, 642.)

157

f. “Nor does the prosecutorial discretion to charge special circumstances or

seek the death penalty under the [California death penalty] statute violate the

federal Constitution.” (People v. Box, supra, 23 Cal.4th at p. 1217.)

g. Delay in the appointment of counsel on appeal and in processing the

appeal does not inflict cruel or unusual punishment within the meaning of the state

or United States Constitutions. (People v. Lenart (2004) 32 Cal.4th 1107, 1131.)

h. Contrary to defendant’s claim, the statutory sentencing factors are not so

arbitrary, broad, or contradictory that they provide inadequate guidance to the jury.

(People v. Morrison, supra, 34 Cal.4th at p. 729.

i. There is no constitutional requirement of a presumption in favor of a

sentence of life imprisonment without the possibility of parole. (People v. Maury

(2003) 30 Cal.4th 342, 440.)

j. Appellate review of death judgments is not impermissibly influenced by

political considerations in violation of the Fifth, Sixth, Eighth, or Fourteenth

Amendments to the United States Constitution. (People v. Kipp, supra, 26 Cal.4th

at pp. 1140-1141.)

k. Defendant contends that the various violations of state and federal law

he has asserted also constitute a violation of international law, but he “fail[s] to

establish the premise that his trial involved violations of state and federal

constitutional law.” (People v. Jenkins, supra, 22 Cal.4th at p. 1055.) Further,

“[t]o the extent defendant alleges violations of the International Covenant on Civil

and Political Rights . . . his claim lacks merit, even assuming he has standing to

invoke this covenant.” (People v. Cornwell (2005) 37 Cal.4th 50, 106; People v.

Brown (2004) 33 Cal.4th 382, 404.)

158





8. Cumulative prejudice

Defendant contends that guilt phase errors that may have been harmless at

the guilt phase were prejudicial at the penalty phase. He cites (1) asserted error in

admitting evidence of the knives discovered in his automobile at the time of his

arrest; and (2) admission of “evidence of ambiguous statements made by

[defendant] which were not sufficiently tied to the present crimes, but which

nonetheless portrayed [defendant] as having a negative attitude toward females.”

Defendant contends this assertedly improperly admitted character evidence

affected the penalty determination and also might have caused the jury to dismiss

any lingering doubts they had concerning defendant’s guilt. Defendant also

contends the prejudicial impact of any guilt phase error on the penalty

determination is subject to review under the Chapman v. California, supra, 386

U.S. 18, standard for review of federal constitutional error, rather than the Brown

(1988) 46 Cal.3d 432 test for state law error at the penalty phase. But “[w]e have

explained that ‘Brown’s “reasonable possibility” standard and Chapman’s

“reasonable doubt” test . . . are the same in substance and effect.’ ” (People v.

Gonzalez, supra, (38 Cal.4th at p. 961, fn. omitted.) As we have concluded, the

admission of the evidence of the knives was harmless under the most exacting

standard of review (see People v. Robinson, supra, 37 Cal.4th at p. 655), and we

have rejected defendant’s claim concerning the admission of his statements.

III. CONCLUSION

For the foregoing reasons, the judgment is affirmed in its entirety.

GEORGE, C. J.

WE CONCUR:
KENNARD,

J.

BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

MORENO,

J.

CORRIGAN,

J.

159



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Prince
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S036105
Date Filed: April 30, 2007
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Charles R. Hayes

__________________________________________________________________________________

Attorneys for Appellant:

Mark E. Cutler, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood, John T. Swan and Quisteen S.
Shum, Deputy Attorney General, for Plaintiff and Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark E. Cutler
Post Office Box 172
Cool, CA 95614-0172
(530) 885-7718

Quisteen S. Shum
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92186-5266
(619) 645-2211


Opinion Information
Date:Docket Number:
Mon, 04/30/2007S036105

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Quisteen S. Shum, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Prince, Cleophus (Appellant)
San Quentin State Prison
Represented by Mark E. Cutler
Attorney at Law
P.O. Box 172
Cool, CA

3Prince, Cleophus (Appellant)
San Quentin State Prison
Represented by Gary B. Wells
Attorney at Law
6083 N. Figarden Dr., PMB 203
Fresno, CA


Disposition
Apr 30 2007Opinion: Affirmed

Dockets
Nov 5 1993Judgment of death
 
Nov 15 1993Filed cert. copy of Judgement of Death Rendered
  11-5-93.
Nov 15 1993Application for Extension of Time filed
  By County Clerk to Complete C.T.
Nov 17 1993Extension of Time application Granted
  To County Clerk To 1-24-94 To Complete C.T.
Dec 20 1993Application for Extension of Time filed
  By Court Reporter John L. Damron to Complete R.T.
Dec 27 1993Extension of Time application Granted
  To Court Reporter To 1-18-94 To Complete R.T.
Jan 7 1994Application for Extension of Time filed
  By County Clerk to Complete C.T.
Jan 7 1994Extension of Time application Granted
  To County Clerk To 3-25-94 To Complete C.T.
Jun 9 1998Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Mark E. Cutler is hereby appointed to represent appellant on his automatic appeal now pending in this court.
Jul 7 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 8 1998Extension of Time application Granted
  To 9-10-98 To request Record correction
Sep 1 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Sep 1 1998Extension of Time application Granted
  To 11-9-98 To request Record correction
Sep 23 1998Compensation awarded counsel
 
Nov 3 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Nov 3 1998Extension of Time application Granted
  To Applt To 1-8-99 To request Corr. of Record.
Nov 18 1998Compensation awarded counsel
 
Dec 9 1998Compensation awarded counsel
 
Dec 31 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jan 4 1999Extension of Time application Granted
  To 3-11-99 To request Record correction
Jan 13 1999Compensation awarded counsel
 
Mar 8 1999Received copy of appellant's record correction motion
  Request for correction of transcripts (and additional record) (29 pp.)
Mar 24 1999Compensation awarded counsel
 
Apr 28 1999Compensation awarded counsel
 
Sep 17 1999Compensation awarded counsel
  Atty Cutler
Oct 20 1999Compensation awarded counsel
  Atty Cutler
Nov 30 1999Motion filed
  Motion for Mod. And/or Reversal of Portion's of Trial Court's Order Granting in Part and denying in Part Applt's request Re correct Transcripts
Dec 1 1999Compensation awarded counsel
  Atty Cutler
Dec 15 1999Order filed:
  Applt's request that all Documentary Exhibits be Included in the Clerk's Transcript Portion of the Record on Appeal Is denied. Applt's request that All Exhibits filed with Pleadings be Placed in the Clerk's Transcript Portion of the Record on Appeal Regardless of How They Are Labeled, Is Granted. Applt's request for Reasonable time to Review the Completed Record After Receipt Is Granted.
Jan 20 2000Compensation awarded counsel
  Atty Cutler
Mar 8 2000Compensation awarded counsel
  Atty Cutler
Mar 29 2000Compensation awarded counsel
  Atty Cutler
Jun 1 2000Compensation awarded counsel
  Atty Cutler
Jun 28 2000Compensation awarded counsel
  Atty Cutler
Aug 3 2000Counsel's status report received (confidential)
 
Sep 27 2000Record on appeal filed
  C-82 (16,732 pp.) and R-148 (13,084) including material under seal; Clerk's Transcript includes 8,036 pages of Juror Questionnaires.
Sep 27 2000Appellant's opening brief letter sent, due:
  11/6/2000
Sep 27 2000Counsel's status report received (confidential)
  from atty Cutler.
Oct 27 2000Application for Extension of Time filed
  To file AOB. (1st request)
Oct 31 2000Extension of Time application Granted
  To 1/5/2001 to file AOB.
Nov 1 2000Compensation awarded counsel
  Atty Cutler
Nov 27 2000Counsel's status report received (confidential)
  from atty Cutler.
Dec 18 2000Motion filed
  Applt's mtn. to have the court review sealed materials and determine whether they should remain sealed and/or under what conditions they should be released to applt defense counsel
Dec 26 2000Filed:
  Resp's response to applt's mtn. to have the court review sealed materials and determine whether they should remain sealed and/or under what conditions they should be released to applt counsel
Dec 26 2000Application for Extension of Time filed
  to file AOB. (2nd request)
Jan 2 2001Extension of Time application Granted
  To 3/6/2001 to file AOB.
Jan 25 2001Counsel's status report received (confidential)
  from atty Cutler.
Jan 30 2001Compensation awarded counsel
  Atty Cutler
Feb 22 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Feb 26 2001Extension of Time application Granted
  To 5/7/2001 to file AOB.
Mar 29 2001Counsel's status report received (confidential)
  from atty Cutler.
Apr 19 2001Compensation awarded counsel
  Atty Cutler
Apr 25 2001Application for Extension of Time filed
  To file AOB. (4th request)
Apr 27 2001Extension of Time application Granted
  To 7/6/2001 to file AOB.
May 29 2001Counsel's status report received (confidential)
  from atty Cutler.
Jun 28 2001Application for Extension of Time filed
  to file AOB. (5th request)
Jul 5 2001Extension of Time application Granted
  to 9-4-2001 to file AOB.
Jul 27 2001Counsel's status report received (confidential)
  from atty Cutler.
Aug 22 2001Application for Extension of Time filed
  To file AOB. (6th request)
Aug 24 2001Extension of Time application Granted
  To 11/5/2001 to file AOB, based on representation by counsel that "one additional extension of time may be requested beyond the sixty day extension sought herein."
Sep 10 2001Letter sent to:
  superior court appeals clerk regarding any exhibits or documents that relate to any of the sealed in camera hearings itemized in this letter. The clerk is to forward any such exhibits or documents to this court by 10-1-2001. (see letter for complete text.)
Sep 25 2001Counsel's status report received (confidential)
  from atty Cutler.
Oct 1 2001Filed:
  Suppl. record CT vols. 59-61; RT-5 sealed vols. (20A, 78A, 79A, 80A, 95A) ; and 2 sealed envl. of photos.
Oct 17 2001Order filed:
  Appellant's "Motion to have the court review sealed materials and determine whether they should remain sealed and/or under what conditions they should be released to appellate counsel," filed December 18, 2000, is granted in part and denied in part. Appellant's motion is granted in the following respects: The clerk is directed to unseal the following passages of the reporter's transcript on appeal, and is further directed to transmit a copy thereof to appellant and respondent: 1. Reporter's Transcript 20-A, pages 941A-949A (Feb. 11, 1993). 2. Reporter's Transcript 78-A, pages 8371-8378 (June 7, 1993). 3. Reporter's Transcript 79-A, pages 8391-8401 and 8433-8469 (June 8, 1993). 4. Reporter's Transcript 80-A, pages 8531-8534 and 8614-8618 (June 9, 1993). The clerk also is directed to unseal the following passages of the clerk's transcript on appeal (containing copies of documents and materials referred to and discussed at the hearings set forth above), and is further directed to transmit a copy thereof to appellant and respondent: Clerk's Transcript 59 (in its entirety) and Clerk's Transcript 60, pages 12501-12556. In all other respects, appellant's motion is denied.
Oct 30 2001Application for Extension of Time filed
  To file AOB. (7th request)
Nov 1 2001Extension of Time application Granted
  To 1/4/2002 to file AOB. No further extension of time is contemplated.
Nov 27 2001Counsel's status report received (confidential)
  from atty Cutler.
Jan 3 2002Request for extension of time filed
  To file AOB. (8th request)
Jan 8 2002Extension of time granted
  To 2/15/2002 to file AOB. Counsel anticipates filing the brief by that date. No further extensions will be granted.
Jan 28 2002Counsel's status report received (confidential)
  from atty Cutler.
Feb 15 2002Application to file over-length brief filed
  By applt. to file AOB. (648 pp. AOB submitted under separate cover)
Feb 20 2002Order filed
  Applt.'s request for permission to file oversized brief is granted.
Feb 20 2002Appellant's opening brief filed
  (648 pp.)
Mar 14 2002Request for extension of time filed
  To file resp.'s brief. (1st request)
Mar 19 2002Extension of time granted
  To 5/21/2002 file resp.'s brief.
May 16 2002Request for extension of time filed
  To file resp.'s brief. (2nd request)
May 22 2002Compensation awarded counsel
  Atty Cutler
May 22 2002Extension of time granted
  To 7/22/2002 to file resp.'s brief. Dep. Atty. Gen. Swan anticipates filing that brief by 8/21/2002. Only one further extension totaling 30 additional days is contemplated.
Jul 22 2002Request for extension of time filed
  To file resp.'s brief. (3rd request)
Jul 23 2002Filed:
  Suppl. declaration in support of application of extension of time to file resp.'s brief.
Jul 30 2002Extension of time granted
  To 9/20/2002 to file resp.'s brief. Dep. Atty. General Swan anticipates filing that brief by 9/20/2002. No further extension is contemplated.
Sep 16 2002Request for extension of time filed
  To file respondent's brief. (4th request)
Sep 19 2002Extension of time granted
  To 10/21/2002 to file respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Supervising Attorney General John T. Swan's representation that he anticipates filing that brief by 10/20/2002.
Oct 16 2002Request for extension of time filed
  To file respondent's brief. (5th request)
Oct 18 2002Extension of time granted
  To 11/4/2002 to file respondent's brief. Extension is granted based upon Deputy Attorney General John T. Swan's representation that he anticipates filing that brief by 11/4/2002. After that date, no further extension is contemplated.
Oct 30 2002Request for extension of time filed
  to file respondent's brief. (6th request)
Nov 5 2002Filed:
  Supplemental declaration in support of request for extension of time to file respondent's brief.
Nov 7 2002Extension of time granted
  To 11/12/2002 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Supervising Deputy Attorney General Raquel Gonzalez's representation that she anticipates filing that brief by 11/11/2002.
Nov 8 2002Respondent's brief filed
  (279 pp.)
Nov 25 2002Request for extension of time filed
  To file appellant's reply brief. (1st request)
Nov 26 2002Extension of time granted
  To 1/31/2003 to file appellant's reply brief.
Jan 23 2003Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jan 24 2003Extension of time granted
  to 4/1/2003 to file appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel Mark E. Cutler's representation that he anticipates filing that brief by 5/31/2003.
Feb 13 2003Compensation awarded counsel
  Atty Cutler
Feb 25 2003Compensation awarded counsel
  Atty Cutler
Mar 19 2003Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Mar 25 2003Extension of time granted
  to 6/2/2003 to file appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Mark E. Cutler's representation that he anticipates filing that brief by 5/31/2003.
Jun 2 2003Filed:
  request for permission to file oversized appellant's reply brief. (brief submitted under separate cover)
Jun 4 2003Order filed
  granting appellant's "Request for Permission to File Oversized Appellant's Reply Brief."
Jun 4 2003Appellant's reply brief filed
  (195 pp.)
Aug 13 2003Compensation awarded counsel
  Atty Cutler
Feb 20 2004Received:
  letter from Deputy Attorney General Quisteen S. Shum, dated February 18, 2004, advising that case has been reassigned to her due to retirement of Deputy AG Swan.
Mar 17 2006Exhibit(s) lodged
  Court's 149 (videotape).
Mar 24 2006Exhibit(s) lodged
  defendant's exhibits B and F from pretrial motion (10-8-92 and 10-9-92)
Mar 27 2006Exhibit(s) lodged
  Court's exhibits 1 (venue motion), 2, 2-17, 5-11, 15-5, 15-5A, 15-5A-1, 15-5B, 129, 131, 136 and 149B (all video tapes).
Nov 28 2006Oral argument letter sent
  to counsel, advising that the court will make an effort to schedule this case for argument for the late January calendar, to be held the week of January 29, 2007, in Sacramento. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Dec 1 2006Received:
  letter from respondent, dated November 30, 2006, requesting that oral argument be scheduled for Wednesday, January 31, 2007.
Jan 3 2007Case ordered on calendar
  to be argued Tuesday, January 30, 2007, at 2:00 p.m., in Sacramento
Jan 16 2007Filed letter from:
  attorney Mark Cutler, dated January 13, 2007 re focus issues for oral argument and request for 45 minutes for argument.
Jan 23 2007Filed:
  proof of service of letter re: focus issuses and time for oral argument.
Jan 30 2007Received:
  appellant's letter of additional authorities, dated January 29, 2007.
Jan 30 2007Cause argued and submitted
 
Jan 31 2007Exhibit(s) lodged
  Court's exhibits: 1-12, 2-12, 5-8, 10-24, 13-25, 13-19.
Feb 5 2007Filed:
  letter from respondent, dated February 2, 2007, in response to appellant's letter of additional authorities, received on January 30, 2007. (5 pp.)
Feb 14 2007Compensation awarded counsel
  Atty Cutler
Mar 14 2007Compensation awarded counsel
  Atty Cutler
Apr 27 2007Notice of forthcoming opinion posted
 
Apr 30 2007Opinion filed: Judgment affirmed in full
  Opinion by George, C.J. -----jointed by Kennard, Baxter, Werdegar, Chin, Moreno, & Corrigan, JJ.
May 16 2007Rehearing petition filed
  by appellant. (11,261 words; 43 pp.) Note: Filed per rule 8.25 (b).
May 22 2007Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 27, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jun 13 2007Compensation awarded counsel
  Atty Cutler
Jul 18 2007Rehearing denied
  The petition for rehearing is denied.
Jul 18 2007Remittitur issued (AA)
 
Jul 19 2007Exhibit(s) returned
  to San Diego Superior Court; Court's: 1, 1-12, 2, 2-12, 2-17, 5-8, 5-11, 10-24, 13-19, 13-25, 15-5, 15-5A, 15-5A-1, 15-5B, 129, 131, 136, 149, and 149B. Defendant's: B and F.
Jul 25 2007Received:
  receipt for remittitur.
Aug 20 2007Related habeas corpus petition filed (post-judgment)
  case no. S155510.
Oct 19 2007Received:
  letter from U.S.S.C; dated October 16, 2007; advising cert petn. filed on October 12, 2007; No. 07-7052.
Nov 16 2007Received:
  copy of respondent's brief in opposition to petition for writ of certiorari.
Nov 28 2007Compensation awarded counsel
  Atty Cutler
Dec 19 2007Compensation awarded counsel
  Atty Cutler
Jan 7 2008Certiorari denied by U.S. Supreme Court
 
Jul 7 2008Compensation awarded counsel
  Atty Cutler
Aug 1 2008Counsel appointment order filed
  Upon request of condemned inmate Cleophus Prince, Jr., for appointment of counsel, Gary B. Wells is hereby appointed to represent condemned inmate Cleophus Prince, Jr., for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Any "petition for a writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of condemned inmate Cleophus Prince, Jr.
Oct 3 2008Counsel's status report received (confidential)
  from attorney Wells.
Nov 7 2008Compensation awarded counsel
  Atty Wells
Dec 3 2008Counsel's status report received (confidential)
  from attorney Wells.
Dec 8 2008Compensation awarded counsel
  Atty Cutler
Dec 10 2008Compensation awarded counsel
  Atty Wells
Feb 4 2009Compensation awarded counsel
  Atty Wells
Mar 11 2009Compensation awarded counsel
  Atty Wells
May 21 2009Compensation awarded counsel
  Atty Wells
Jun 10 2009Compensation awarded counsel
  Atty Wells
Jul 9 2009Compensation awarded counsel
  Atty Wells
Jul 22 2009Compensation awarded counsel
  Atty Wells
Sep 9 2009Compensation awarded counsel
  attorney Wells
Nov 10 2009Compensation awarded counsel
  Atty Wells

Briefs
Feb 20 2002Appellant's opening brief filed
 
Nov 8 2002Respondent's brief filed
 
Jun 4 2003Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website