Supreme Court of California Justia
Citation 46 Cal. 4th 1136, 209 P.3d 977, 95 Cal. Rptr. 3d 652

People v. Rogers

Filed 7/6/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S064337

v.

San Diego County

RAMON JAY ROGERS,

Super. Ct. No. SCD 119402

Defendant and Appellant.



A jury convicted defendant Ramon Jay Rogers of the first degree murders

of Beatrice Toronczak and Rose Albano and the second degree murder of Ron

Stadt. (Pen. Code, § 187, subd. (a).)1 The jury also found true the special

circumstance that defendant had been convicted of multiple murders. (§ 190.2,

subd. (a)(3).) At the penalty phase of trial, the jury returned a verdict of death.

Appeal to this court is automatic. (§ 1239, subd. (b).)

We affirm the judgment of death as modified to reflect that defendant‟s

sentence on the second degree murder count is 15 years to life in prison. (See

post, part II.C.1.)


1

All further statutory references are to this code unless otherwise indicated.

1


I. FACTS

A. The Guilt Phase

Defendant was the resident manager of an apartment complex at 7007

Saranac in San Diego. In 1996, he was arrested and charged with murdering Ron

Stadt, Rose Albano, and Beatrice Toronczak. Stadt was once defendant‟s

roommate and best friend. He vanished in June 1993, and his body was never

found. Albano had been living with defendant and was pregnant with his child at

the time of her disappearance in December 1993. On December 29, 1993, her left

arm, left leg, and jawbone were found in a trash bag approximately a mile and a

half from defendant‟s sister‟s home. Toronczak had a five-year-old son with

defendant and had recently moved into his apartment when she disappeared in

February 1996. The next month, her severed fingers and parts of her jawbone

were discovered in a storage area beneath defendant‟s apartment.

The three victims had been acquainted with each other, and many of the

witnesses at trial knew all three.

1. The Prosecution Case

a. Ron Stadt

While in the Navy, Ron Stadt and defendant became best friends. After

leaving the Navy, they both lived San Diego. In July 1992, Stadt separated from

his wife Debra Stadt. He subsequently moved in with defendant, but did not stay

there for long because he felt uncomfortable. In April or May 1993, Stadt

discovered defendant was having an affair with Debra. Stadt intended to use

evidence of the affair in his child custody dispute with Debra.

On June 24, 1993, Michael Proo was at work with Stadt when he overheard

Stadt talking to defendant on the telephone in a heated conversation. After the

call, Stadt told Proo he was going to defendant‟s apartment to retrieve some

2

personal items, perhaps jewelry, left there by Debra. Stadt and defendant had not

been getting along, and Stadt was worried that defendant‟s offer to return the

jewelry was a setup. Stadt asked Proo and Proo‟s wife to go with him, but they

declined. Around 6:15 or 6:30 p.m., Stadt left the shop to go to defendant‟s

apartment. Although Stadt was scheduled to work the next day, he never returned,

not even to collect his paycheck.

On June 24, 1993, at about 6:20 p.m., Debra drove to defendant‟s

apartment. She saw Stadt driving his truck in the alley to the apartments on

Saranac, with defendant following in his own truck. Defendant saw Debra and

told her in a “fairly urgent” tone of voice to leave. Debra complied. Neither she

nor any of Stadt‟s friends, family members, or other contacts ever saw Stadt again.

After June 24, 1993, Stadt‟s credit card accounts showed no cardholder activity.

The next day, Debra asked defendant why he was with Stadt, since she

understood the two were no longer talking to each other. Defendant said Stadt

was at the apartments to pick up a ladder. On July 2, 1993, however, defendant

told a detective from the Imperial Beach Sheriff‟s Department that Stadt came to

his residence about 6:45 p.m. on June 24, 1993, to pick up jewelry Debra had left.

After Stadt disappeared, defendant stated to Debra and other friends at

various times that Stadt was killed in a fight, that he drove off into the sunset, that

he was missing and would not be bothering Debra anymore, that he left because he

did not want to pay child support, and that he was mountain lion food. Debra once

indicated to defendant that if he had done anything to Stadt, then Stadt‟s body

could be identified by his extensive dental work. Defendant responded that was

the only thing he had forgotten, and it was the only mistake he had made.

Debra testified that, after Stadt vanished, defendant was in possession of

Stadt‟s key to Debra‟s car and a radar detector that had belonged to Stadt. Stacie

Wickett and Gwytha Zelinsky testified that, after Stadt disappeared, defendant had

3

called them using their unlisted telephone numbers. The women had not given

these numbers to defendant but had shared them with Stadt, who presumably

wrote them in his phone book.

b. Rose Albano

Defendant told Loretta Peer that Rose Albano was pregnant, and that

Albano claimed he was the father. He told Ash Darwish that he wanted Albano to

get an abortion and move out of his apartment, but she wanted to do neither.

Defendant told Kimberly Skolte he did not want to marry Albano, and told Skolte

and Darwish he did not want to be responsible for Albano‟s other two children.

Albano‟s parents last saw Albano on December 18, 1993. On December

23, 1993, defendant called the San Diego Police Department to report Albano

missing. He said he last saw her on December 12, 1993, at around 1:00 p.m. He

also said she was pregnant, she lived with him at 7007 Saranac, apartment 209,

and she might be carrying about $6,400 she had withdrawn from her retirement

account. On December 24, 1993, defendant again called the police to report

Albano missing, but this time he gave a different address for her, and said he last

saw her on December 21, 1993, at 7:00 a.m.

Defendant never expressed any concern over Albano‟s disappearance and

did not tell his friends, unless they asked, that she was gone. He was evasive

when Pamela LeFrere suggested they look for her. Regarding Albano‟s

disappearance, defendant told friends and others at various times that she had gone

to Los Angeles or to see her sister, that she and Stadt were shopping in Mexico,

that she went shopping one night and did not return, and that she might have gone

to the Philippines. Around Christmas of 1993, before Albano vanished, defendant

had told Loretta Peer that Albano would be leaving his apartment in two weeks

because she had lined up a secretarial job.

4

On December 29, 1993, Albano‟s partial remains were found in a trash bag

in a rural, mountainous area about a mile or a mile and a half from defendant‟s

sister‟s house. On that same day, defendant informed his sister that Albano‟s

mother told him Albano‟s body parts had been found. The San Diego County

Sheriff‟s Department, however, did not tell Albano‟s parents that her remains had

been identified until January 27, 1994.

Other evidence showed that on December 17, 1993, Albano had withdrawn

over $4,600 from her retirement account. After she went missing, defendant had a

used engine and new tires installed on his truck, which would have cost

approximately $4,000.

Kimberly Skolte testified that around the second week of March 1994,

defendant told her that Albano had been found murdered and the police had

interrogated him. Defendant gave Skolte $2,400 in cash, his airline ticket to

Poland for the end of March (to visit Beatrice Toronczak and their son), his ATM

card with his personal identification number (PIN), his mailbox keys, and his

passport. The next day, he brought her Toronczak‟s passport. Defendant told

Skolte to hold onto his things, because he was concerned he was a suspect and

afraid the police would find the plane ticket and think he might have had a motive

or be fleeing. On March 18, 1994, he gave her another $600 in cash. Skolte

returned the items to defendant after two weeks because she did not want to be

responsible for them.

c. Beatrice Toronczak

Defendant and Beatrice Toronczak had a young son named Nicholas. For a

period of time, Nicholas lived with Toronczak in Poland, and defendant was

determined to get him back. Defendant did not care for the way Toronczak was

raising Nicholas. In late 1995, defendant traveled to Warsaw and returned with

5

Nicholas on January 3, 1996. Toronczak arrived in San Diego on February 11,

1996, and moved into defendant‟s apartment. Defendant had to move his then

live-in girlfriend, Rose McKinney, to another apartment in the complex because

Toronczak did not want McKinney around Nicholas.

Toronczak was last seen on or shortly after her birthday on February 18,

1996. Defendant told friends and Toronczak‟s mother different things about her

disappearance, e.g., that he did not know where Toronczak was, that Toronczak

ran off with a Mexican man to the Mexican border, that she left and probably went

to Germany, and that she maybe went to Las Vegas or to Poland. Defendant

expressed no concern over her disappearance and did not try to find her. He

refused a request by Toronczak‟s mother to file a missing person report and told

her not to worry. Meanwhile, Nicholas was living with defendant.

On March 11, 1996, the police went to defendant‟s apartment to investigate

a missing person report concerning Toronczak. They entered the three storage

rooms underneath defendant‟s apartment and saw evidence of a crime scene.

After securing a search warrant, the police seized a number of items from those

rooms, including a tote bag containing Toronczak‟s driver‟s license, her luggage

containing clothing and personal items, and a yellow bucket containing what

proved to be Toronczak‟s 10 severed fingers and parts of her jaw with some teeth

attached as well as some loose teeth. Other seized items included female clothing

and underwear that were cut apart, bloodstained flex cuffs that were cut, a

bloodstained piece of cardboard, a butcher knife with Toronczak‟s blood and hair,

a claw hammer with red stains, a blue tarp with red stains and hair, a handsaw

stained with blood and biological matter, a bloodstained four-by-four piece of

wood, and two pair of branch clippers, one of which had red stains.

Also recovered from the storage room were a pair of yellow Playtex gloves

stained with Toronczak‟s blood. Defendant‟s fingerprints were found inside the

6

fingertips of latex surgical gloves, which apparently had been used inside the

larger bloodstained Playtex gloves. Only defendant had the keys to the storage

room.

Evidence seized from defendant‟s apartment included four firearms and

unused latex surgical gloves, yellow Playtex gloves, and flex cuffs. Also

recovered were portions of a calendar for June 1993, with the dates 1, 9, and 24

cut out, and for December 1993, with the dates 7, 19, and 26 cut out.

During the initial police entries into the second and third storage rooms,

defendant had been placed in a police car. While in the car, he made a cell phone

call to Rose McKinney. Although McKinney denied the incident at defendant‟s

trial, she had earlier told Russell Wittmann that defendant had called from the

back of the police car to tell her that he “did it” for them.

d. Other Evidence

Kelli Snider once told defendant she had killed someone, which was not

true but which she said to get defendant‟s attention. Defendant told her he wanted

her to shoot and kill a former business associate of his named Dixon Rice. They

discussed a price between $10,000 and $20,000, and he showed her where Rice

lived. Snider backed out of the plan, telling defendant she had never killed before

and could not do so. Defendant told her that he had not believed she would go

through with it, and that he was just testing her. At the time of trial, Snider was

taking medication for depression.

Once during a conversation with defendant, Loretta Peer told him she was

having problems with her husband. Defendant said if she ever wanted him taken

care of, he knew many bad people who could get rid of people and their body parts

would never be found.

7

2. The Defense Case

The defense disputed the prosecution‟s case, arguing that defendant had no

motive to kill any of the victims but others did, and that certain key prosecution

witnesses were not credible. The defense pointed out that no physical evidence

tied him to the Stadt and Albano cases, and that Rose McKinney not only had a

motive to kill Toronczak but also had access to the storage room keys and was the

owner of the yellow bucket containing Toronczak‟s partial remains.

B. The Penalty Phase

1. The Prosecution Case

The prosecution relied on the circumstances of the underlying murders in

advocating for the death penalty.

The prosecution also presented evidence of two uncharged batteries. One

incident occurred in 1994, when defendant was in Rose Sullivan‟s apartment to

repair something in the bathroom. Sullivan was standing behind defendant when

he suddenly turned around to face her. Defendant grabbed her, lifted her top, put

his hand on her breast, and started to kiss her. Sullivan pushed defendant away,

and he left and never mentioned the incident.

The second incident occurred in March 1995. Defendant had entered Rose

McKinney‟s apartment, apparently through a patio door. He was hiding in the

bedroom closet when McKinney and Preston Hunter entered the apartment and

went to bed, after having just returned from Mexico. From the closet defendant

telephoned McKinney three times and whispered things. McKinney could not

understand what was being said during the first two calls, but recognized

defendant‟s voice the third time when he told her to get that man off her bed.

McKinney then went to the living room to see where defendant was. Defendant

was very upset as he emerged from the bedroom and approached McKinney. He

grabbed her and ripped off her tank top, and the two pushed each other around.

8

The incident caused McKinney‟s gums to bleed, and she sustained bruising on her

arm and near her ankle. Meanwhile, Hunter had left the apartment and called the

police. After the police arrived and placed defendant in custody, Hunter found his

shoes and basketball shorts cut up in the dishwasher.

The prosecution additionally introduced victim impact testimony from the

families of the victims, including Beatrice Toronczak‟s mother, Ron Stadt‟s father,

and Rose Albano‟s father.

2. The Defense Case

Members of defendant‟s biological family (Franks) and his adoptive family

(Rogers) described the positive relationship between the two families as defendant

grew up. The families would visit each other, and defendant never expressed

resentment about living with the Rogers family. Defendant was adopted by the

Rogers family because of finances, not because of anything he did. Defendant

was healthy, happy, had friends and girlfriends, and was fun to be around. He was

kind, gentle, respectful, and not aggressive. He was active in sports during high

school, helped around the house, and held two or three jobs at one time.

Defendant was a good, caring father to Nicholas.

A number of defendant‟s long-time friends from Idaho provided positive

testimony about defendant and their experiences with him. Defendant‟s one-time

romantic interest, Kelli Snider, testified that defendant was happy and never rude

or disrespectful, and that he remained calm even when his girlfriend Rose

McKinney would get angry with him.

Defendant presented two mental health experts. Neuropsychologist Kirsten

Fleming evaluated defendant and concluded he was a bright individual with a very

high-functioning brain. Dr. Fleming saw no evidence of either acquired brain

damage or developmental brain damage, but noted defendant had a somewhat low

9

frustration level. Psychiatrist Samuel Benson, Jr., performed a psychiatric

evaluation of defendant and concluded he did not fit the profile of a serial killer.

Given the absence of abnormal brain functioning, Dr. Benson could not explain

defendant‟s conduct as being due to a malfunctioning brain.

II. DISCUSSION

A. Pretrial Issues

1. Voir Dire

Defendant contends the trial court‟s denial of his request for attorney-

conducted and sequestered voir dire, combined with the court‟s inadequate voir

dire of the prospective jurors regarding their death penalty views and potential

racial bias, violated his state and federal constitutional rights to voir dire, a fair

trial, due process, and reliable guilt, special circumstance, and penalty

determinations.

a. Background Facts

Defendant‟s case was tried in 1997. At that time, Code of Civil Procedure

section 223 provided: “In a criminal case, the court shall conduct the examination

of prospective jurors.” This statute gave the court discretion, “upon a showing of

good cause, to supplement the examination by such further inquiry as it deems

proper, or shall itself submit to the prospective jurors upon such a showing, such

additional questions by the parties as it deems proper . . . .” (Code Civ. Proc.,

former § 223, as added by initiative (Prop. 115), approved by voters at Prim. Elec.

June 5, 1990.) There is no dispute that this former version of the statute controlled

in this case.2

2

In 2000, Code of Civil Procedure section 223 was amended in relevant part

to provide that “counsel for each party shall have the right to examine, by oral and
direct questioning, any or all of the prospective jurors.” (Stats. 2000, ch. 192, § 1.)

10

On January 22, 1997, the trial court asked the parties to exchange their

proposed jury questionnaires and to reach some agreement on questions prior to a

future motions hearing. At a hearing on March 24, 1997, the trial court granted

defendant‟s motions for use of a jury questionnaire and for open-ended,

nonleading questions, but denied all other motions for individual and/or

sequestered voir dire, attorney-conducted voir dire, and small group voir dire,

including the prosecution‟s motion for attorney-conducted voir dire. The court

expressed satisfaction with the prosecution‟s proposed jury questionnaire, but

requested the defense to provide its proposed questionnaire as soon as possible.

The record contains no indication that the defense ever did so.3

On June 9, 1997, the trial court began the jury selection process by

questioning and excusing prospective jurors on hardship grounds. The court

informed the remaining prospective jurors about the murder charges against

defendant and the multiple-murder special-circumstance allegation, and of

defendant‟s not guilty plea and denial of the allegation. After explaining some of

the basic guilt phase instructions, the court emphasized the contingent nature of

the penalty phase and the significance of aggravating and mitigating evidence as

factors the jury would weigh to decide the appropriate sentence.

After making this presentation, the trial court stated it would be distributing

questionnaires asking the prospective jurors about their respective backgrounds

and views on the outlined instructions and proceedings. The court explained there

were no right or wrong answers, but emphasized the importance of answering the

questions completely and signing the questionnaire at the end.


3

Although defendant referred to an “attached juror questionnaire” in support

of his motion for jury questionnaire dated February 11, 1997, no questionnaire was
attached to the motion.

11

Using the completed questionnaires as a starting point, the trial court asked

a number of prospective jurors for more detail regarding their answers on different

topics, including their death penalty beliefs. At times the court invited each side to

ask questions, and it also probed certain questionnaire responses at the parties‟

prompting.

b. Analysis

Defendant claims the trial court‟s voir dire on the death penalty was

inadequate because: (1) he was not allowed to voir dire prospective jurors at all,

and (2) he was deprived of the opportunity to inquire — either through counsel or

the court — about the effect of any of the circumstances of the charged crimes on

the prospective jurors‟ bias in favor of a death verdict. He contends that his due

process rights were violated and that the trial court‟s inadequate voir dire made it

impossible to determine from the record whether any of the seated jurors held

disqualifying views on the death penalty.

Defendant neither objected to the questionnaire used, nor proposed any

modifications or additional questionnaire inquiries. He therefore has forfeited any

claim that the questionnaire and its contents were inadequate to root out any pro-

death-penalty bias on the part of the prospective jurors. (People v. Robinson

(2005) 37 Cal.4th 592, 617.) In any case, defendant‟s claims lack merit and do not

warrant a reversal.

“It is established that a trial court „is in the best position to assess the

amount of voir dire required to ferret out latent prejudice, and to judge the

responses‟ [citation], and hence a trial court has „ “great latitude in deciding what

questions should be asked on voir dire.” ‟ [Citation.]” (People v. Robinson,

supra, 37 Cal.4th at p. 617; see People v. Waidla (2000) 22 Cal.4th 690, 713-714

[applying abuse of discretion standard of review].) “ „Unless the voir dire by a

12

court is so inadequate that the reviewing court can say that the resulting trial was

fundamentally unfair, the manner in which voir dire is conducted is not a basis for

reversal.‟ ” (People v. Carter (2005) 36 Cal.4th 1215, 1250; see People v.

Robinson, supra, at p. 617.)

The record here clearly shows that defendant was provided opportunities to

elicit information on voir dire by submitting questions for inclusion in the juror

questionnaire. Despite defendant‟s failure to propose his own areas of inquiry, the

questionnaire used in this case elicited significant details regarding the prospective

jurors‟ backgrounds,4 probed their views and experiences in numerous relevant

areas,5 explored their knowledge of defendant‟s case,6 their attitudes about the


4

The questionnaire was 20 pages long and contained a total of 118

questions, some with multiple subparts, asking for information regarding the
prospective juror‟s name, age, area of residence, family status, educational
background, occupation and employer, personal hobbies, associational
memberships, military experience, law enforcement and judicial contacts,
knowledge of and feelings about the criminal justice system, and prior jury
service.

5

Although some questions called for a simple “yes” or “no” answer, many

others asked for explanations to affirmative or negative answers. For instance, the
questions asked the prospective juror to explain any good or bad experiences with
law enforcement, whether he or she could be an impartial juror, and whether he or
she was a good judge of character. The questionnaire also asked the prospective
juror to explain whether he or she (or any relatives or friends) had ever been
arrested, charged, or convicted of a criminal offense, had ever been involved in a
crime as a victim or a witness, or had ever been the victim of domestic abuse.

6

The questionnaire probed whether the prospective juror would like to be a

juror in defendant‟s case, or had seen, heard, or read “anything” about defendant‟s
case, or thought psychiatric or psychological testimony had no place in the courts.
The questionnaire also explored whether the prospective juror would have any
difficulty in participating on a jury due to a medical or physical condition or
problems at home or on the job, in viewing unpleasant photos of the deceased, in
setting aside previously formed opinions about defendant‟s case and basing a
decision entirely on the evidence presented in the courtroom, in avoiding any news


(footnote continued on next page)

13

criminal justice system, and their death penalty views, and required them to

provide their responses under penalty of perjury. The court also allowed both

sides to directly elicit information by asking questions of certain prospective jurors

during the trial court‟s oral examination, and calling to the court‟s attention

specific questionnaire responses warranting additional exploration. When certain

prospective jurors requested confidentiality during the oral examination, the trial

court acquiesced but included both parties in that process.

These procedures “provided an adequate basis upon which the parties were

able to exercise challenges for cause as well as peremptory challenges.” (People

v. Robinson, supra, 37 Cal.4th at p. 618 [addressing similar questionnaire with

followup trial court questioning]; People v. Carter, supra, 36 Cal.4th at p. 1251

[voir dire found more than adequate when written juror questionnaires were used,

and each side was given very limited time to voir dire but also given the

opportunity to request additional court-conducted followup questions].)

Accordingly, the trial court did not err or abuse its discretion in refusing to allow

additional attorney-conducted or sequestered voir dire.

In maintaining the voir dire was inadequate, defendant relies principally on

People v. Cash (2002) 28 Cal.4th 703. There, the defendant was charged with the

first degree murder of Bud Smith and the attempted murder of Susan Balestri.

Because the information did not expressly allege the defendant‟s prior murders of

his grandparents (which were introduced in the penalty phase), the trial court

prohibited the defendant from inquiring whether prospective jurors would



(footnote continued from previous page)

coverage about the case, and in considering defendant‟s background when
deciding on a penalty.

14

automatically vote for the death penalty if the defendant had previously committed

another murder. (Id. at pp. 719, 721.) In holding the defense should have been

permitted to probe the prospective jurors‟ attitude as to that circumstance, Cash

reasoned that the “defendant‟s guilt of a prior murder (specifically, the prior

murders of his grandparents) was a general fact or circumstance that was present

in the case and that could cause some jurors invariably to vote for the death

penalty, regardless of the strength of the mitigating circumstances . . . .” (Id. at

p. 721.)

Defendant‟s attempt to analogize this case to Cash fails. Here, the trial

court specifically informed the prospective jurors that defendant was charged with

three first degree murders, that the special circumstance allegation pertained to

defendant‟s conviction of more than one murder offense, and that the death

penalty decision would arise only if the jury were to find defendant guilty of first

degree murder and find the special circumstance to be true. Because the

prospective jurors had been fully apprised that multiple murders were at issue in

the trial, the significance of that general circumstance to their death penalty views

could be ascertained through the questions asking them (1) whether there were

“circumstances under which you would automatically vote for the death penalty

regardless of the various factors the law says you are to consider” and (2) whether,

if the jury were to find defendant guilty of first degree murder and to find the

special circumstance true, “will you listen to and consider all the evidence

presented by the People and the defendant at the penalty phase of the trial before

you reach a decision on what the penalty should be?” Thus, this case presents no

parallel to Cash, where the trial court‟s refusal to allow questioning concerning the

defendant‟s guilt of a prior murder blocked any meaningful voir dire inquiry into

whether the prospective jurors‟ views about that significant general circumstance

15

would cause them to automatically vote for the death penalty. (People v. Cash,

supra, 28 Cal.4th at p. 721.)

Defendant further claims the trial court should have ascertained whether the

prospective jurors‟ penalty phase decisionmaking would be affected by the

particular circumstances that defendant was close to his three alleged murder

victims, that one of the victims was pregnant, that another was the mother of his

child, and that two were dismembered. We cannot agree.

As we have explained, “death-qualification voir dire must avoid two

extremes. On the one hand, it must not be so abstract that it fails to identify those

jurors whose death penalty views would prevent or substantially impair the

performance of their duties as jurors in the case being tried. On the other hand, it

must not be so specific that it requires the prospective jurors to prejudge the

penalty issue based on a summary of the mitigating and aggravating evidence

likely to be presented. [Citation.] In deciding where to strike the balance in a

particular case, trial courts have considerable discretion.” (People v. Cash, supra,

28 Cal.4th at pp. 721-722.) Thus, it is “not error to refuse to permit counsel to ask

questions based upon an account of the facts of [the] case, or to ask a juror to

consider particular facts that would cause him or her to impose the death penalty.”

(People v. Jenkins (2000) 22 Cal.4th 900, 991.) In this case, it was more than

sufficient that the prospective jurors — having been informed that defendant

allegedly murdered a male friend and two former girlfriends — were asked, in

various ways, whether there were circumstances under which they would impose

the death penalty automatically regardless of other legally relevant factors.7


7

Six pages of the questionnaire probed the prospective jurors‟ views

concerning the death penalty and their ability to follow the death penalty law.
Among other things, the prospective jurors were asked whether they supported or


(footnote continued on next page)

16

Prospective jurors, moreover, need not necessarily be informed that a charged

homicide involved dismemberment, at least in the absence of evidence that the

dismemberment occurred while the victim was still alive. (People v. Zambrano

(2007) 41 Cal.4th 1082, 1123.) No error or abuse of discretion appears.

Finally, relying on the circumstance that he is a biracial man (having a

White father and a mother from Trinidad) charged with murdering two White

victims (Ron Stadt and Beatrice Toronczak) and a Filipino victim (Rose Albano),

defendant complains the trial court conducted an inadequate voir dire because it

asked no questions concerning the prospective jurors‟ potential racial biases. A

defendant, however, “cannot complain of a judge‟s failure to question the venire

on racial prejudice unless the defendant has specifically requested such an

inquiry.” (Turner v. Murray (1986) 476 U.S. 28, 37; see also id. at pp. 46-47, fn. 2

[dis. opn. of Powell, J.]; People v. Robinson, supra, 37 Cal.4th at p. 620.) Here,

defendant‟s failure to offer or request specific questions regarding racial bias

forfeits review of the issue on appeal.

2. Denial of Defendant’s Motion to Suppress

The trial court denied defendant‟s pretrial motion to suppress evidence

seized from his apartment, the three storage rooms below his apartment, and his



(footnote continued from previous page)

opposed the death penalty or had such conscientious objections that they would
have difficulty returning a guilty verdict or a death judgment, whether they would
automatically vote for the death penalty, or for a sentence of life without the
possibility of parole, under certain circumstances regardless of other legally
relevant factors, whether they had any religious or other beliefs that might conflict
with their juror duties or affect their ability to impose either penalty, and whether
there was anything else the court should know about their qualifications as jurors.

17

vehicles. Defendant contends this ruling was erroneous and violated his state and

federal constitutional rights to be free from unreasonable searches and seizures.

a. Background Facts

At the hearing on defendant‟s motion to suppress (§ 1538.5), the trial court

considered the preliminary hearing transcript, viewed photographs of the searched

premises, and heard testimony from the following witnesses.

Officer Vernon Bowman of the San Diego Police Department testified that

Barbara Slimak reported a missing person to him on March 6, 1996. The missing

person was Biata [Beatrice] Toronczak, and Slimak indicated she was making the

report on behalf of Toronczak‟s mother, Maria Bartosz, who lived in Germany.

Slimak said Bartosz asked her to make the report, because defendant refused

Bartosz‟s request to do so and Bartosz feared he was responsible for Toronczak‟s

disappearance. Officer Bowman learned from Slimak that defendant and

Toronczak had a five-year-old child together, and that the child sometimes lived

with Toronczak in Europe and sometimes with defendant in the United States.

The last known address for Toronczak was defendant‟s address at 7007 Saranac,

apartment 209, in San Diego.

Barbara Slimak testified Bartosz told her that she never lost contact with

Toronczak for more than a week, and Bartosz was very upset because it had been

three or four weeks since she last spoke with her daughter on February 18, 1996.

Bartosz had called several people, including defendant and Slimak, looking for

Toronczak. Defendant told Bartosz that Toronczak “just took off,” and that he did

not know where she was. Bartosz insisted that Slimak tell the police to check the

basement storage area of the apartment.

Detective Richard Carlson of the San Diego Police Department testified he

worked in the missing persons unit and reviewed Officer Bowman‟s report around

18

8:00 a.m. on March 11, 1996. At about 9:00 a.m., Carlson telephoned defendant

and asked how long Toronczak had been gone. Defendant claimed she had been

gone about a week to a week and a half, then said he had to go, and hung up.

Carlson thought defendant seemed short with him.

Just after 9:00 o‟clock that morning, Detective Carlson called Slimak.

Slimak told him what Bartosz had told her and said Bartosz had witnessed

defendant threaten to lock Toronczak in the basement, cellar, or storage area of the

residence. Bartosz felt defendant meant it and believed this was what was taking

place. Slimak also believed defendant had something to do with Toronczak‟s

disappearance.

After speaking with Slimak, Detective Carlson turned his attention to other

cases, making telephone calls. He took two or three cases, including Toronczak‟s,

when he left the station around 10:00 a.m. to contact people. After locating a

missing person in a different case, Carlson arrived at 7007 Saranac around 1:35

p.m.

Detective Carlson requested that uniformed police officers meet him at the

apartment complex. He was uncomfortable investigating this case without

assistance, because of the unusual circumstance that people felt another person had

something to do with the disappearance, and because of his telephone conversation

with defendant.

Detective Carlson and the uniformed officers went to apartment 209 and

saw it was the manager‟s unit. They knocked repeatedly and rang the doorbell,

but no one answered. Carlson determined they should check for a storage area.

He then spoke with residents of the complex, including Mr. and Mrs. Ortega and

Russell Wittmann. Mrs. Ortega knew that a woman named Beatrice had been

staying in apartment 209, but had not seen her in several weeks. The Ortegas told

Carlson that defendant, who was the manager, controlled the storage rooms, and

19

they directed Carlson to the back alleyway. Wittmann, who had been working on

a BMW in front of a storage room door, told Carlson the BMW belonged to

defendant.

Soon defendant drove up in a different vehicle and identified himself to

Detective Carlson. Although Carlson knew from Slimak‟s report that Toronczak

had been missing for almost three weeks, defendant maintained she had been gone

for a week to a week and a half and said he thought she went to Mexico with

someone. Carlson told defendant he had information that defendant had

threatened to lock Toronczak in a storage room under his residence. When

Carlson said he wanted to see if she was, in fact, being held there against her will,

defendant replied he could not let Carlson do that. Defendant did not deny the

threat or Toronczak‟s presence in the storage room.

When Detective Carlson mentioned the storage room threat, he saw the flat

portion of defendant‟s neck begin to throb. Carlson asked defendant several times

for permission to enter the storage room, saying he did not understand why

defendant would not want him to check on the welfare of his child‟s mother unless

he knew that something was wrong. After telephoning and speaking with his

supervisor, Lieutenant Collins, for five minutes, Carlson again asked defendant to

either give him the keys to the storage room or open the door for him. Defendant

refused. At this point, Carlson was “very concerned” about Toronczak‟s

whereabouts and was “feeling more and more convinced” that Toronczak was

possibly in the storage area and that he had to look for her. Carlson attempted

once more to get defendant‟s permission to enter, without success.

Detective Carlson directed one of the uniformed officers to break the door

open. They entered the first storage area, which consisted of a small entry room

opening into a very large room. Carlson saw, among other things, a black nylon

rope on the ground. The rope appeared to have been tied in a loop, as if to bind

20

someone‟s wrist and ankles, and it looked like the ends had been cut with a sharp

instrument. Carlson also saw a unisex-type purse containing defendant‟s business

cards and what appeared to be controlled substances, peyote buttons and other

narcotics.

Detective Carlson saw that the dirt floor was soft in spots and looked as if

some spots could have been dug up. Having in mind a different case in which

officers failed to detect a female buried in a box under the ground, Carlson spent

30 minutes or so thoroughly examining the dirt floor.

Detective Carlson directed the uniformed officers to inform defendant of

what was found, and had defendant placed in a police vehicle. After updating

Lieutenant Collins on the events, Carlson told defendant that he was not concerned

about the drugs he found, but that he was concerned about the whereabouts and

welfare of Toronczak and asked for permission to search the other two storage

rooms. When defendant refused, the officers made a forced entry into the second

room. Among the items they saw in that room was luggage with a tag bearing the

name Beatrice Szulc, which Carlson knew was another name used by Toronczak.

The luggage contained personal items of clothing and toiletries that someone

would not be likely to leave behind if going on a trip.

Detective Carlson then decided to force entry into the third storage room

without seeking defendant‟s permission. As the door to this room opened, it

knocked over a large metal trash can that was on a piece of cardboard. The

cardboard had a red stain and, when it was moved, Carlson observed what

appeared to be dried blood, two feet in diameter, extending out on the dirt floor. A

hammer, a saw, and a butcher knife were near the door, and a white painted four-

by-four piece of wood stained with what appeared to be blood was lying just

inside the room.

21

Seeing these items in plain sight, Detective Carlson believed he was

looking at a crime scene. He directed the officers to seal off all three rooms and

sent for the homicide team. Carlson then obtained a telephonic search warrant,

and the officers reentered the storage areas and seized many items of evidence,

including those previously observed.

After hearing all the testimony, the trial court denied defendant‟s

suppression motion. The court found that Carlson acted reasonably in responding

to apparently reliable information pertaining to a missing person, and that exigent

circumstances justified his warrantless entry into the three storage rooms. The

court also determined that the items Carlson observed when he entered the rooms

had been in plain sight and properly supported the telephonic search warrant.

b. Analysis

Defendant contends that the initial warrantless police entries into the three

storage rooms were unlawful, that exigent circumstances did not justify the

entries, that Detective Carlson‟s decision to seek the telephonic search warrant

was prompted by his observations during the illegal entries, and that use of such

observations tainted the warrant-authorized searches and invalidated the resulting

seizures of evidence. We disagree for the reasons below.

The Fourth Amendment to the federal Constitution guarantees against

unreasonable searches and seizures by law enforcement and other government

officials.8 Because a warrantless entry into a home to conduct a search and

seizure is presumptively unreasonable under the Fourth Amendment (Welsh v.

Wisconsin (1984) 466 U.S. 740, 748-749), the government bears the burden of


8

In California, issues relating to the suppression of evidence derived from

governmental searches and seizures are reviewed under federal constitutional
standards. (People v. Ayala (2000) 23 Cal.4th 225, 254-255.)

22

establishing that exigent circumstances or another exception to the warrant

requirement justified the entry. (People v. Williams (1988) 45 Cal.3d 1268, 1300.)

As relevant here, the exigent circumstances doctrine constitutes an

exception to the warrant requirement when an emergency situation requires swift

action to prevent imminent danger to life. (People v. Panah (2005) 35 Cal.4th

395, 465.) “ „The need to protect or preserve life or avoid serious injury is

justification for what would be otherwise illegal absent an exigency or

emergency.‟ [Citation.] And the police may seize any evidence that is in plain

view during the course of their legitimate emergency activities. [Citations.]”

(Mincey v. Arizona (1978) 437 U.S. 385, 392-393.) In this regard, “ „ “[t]here is

no ready litmus test for determining whether such circumstances exist, and in each

case the claim of an extraordinary situation must be measured by the facts known

to the officers.” ‟ ” (People v. Panah, supra, at p. 465.) Generally, a court will

find a warrantless entry justified if the facts available to the officer at the moment

of the entry would cause a person of reasonable caution to believe that the action

taken was appropriate. (People v. Duncan (1986) 42 Cal.3d 91, 97-98.) On

appeal, we uphold the trial court‟s factual findings if they are supported by

substantial evidence, but independently review its determination that the search

did not violate the Fourth Amendment. (People v. Panah, supra, at p. 465.)

We have previously recognized that a warrantless entry may be appropriate

when the police “ „seek an occupant reliably reported as missing.‟ ” (People v.

Wharton (1991) 53 Cal.3d 522, 577.) In Wharton, for instance, the defendant

claimed his counsel was ineffective in failing to file a suppression motion

challenging a warrantless entry by Officers Fryslie and Ybarra9 into the apartment


9

The Wharton opinion indicates at times that Officers Fryslie and “Tracy”

made the subject warrantless entry (People v. Wharton, supra, 53 Cal.3d at pp.


(footnote continued on next page)

23

defendant shared with the murder victim, which had resulted in the discovery of

the victim‟s body. There, the officers acted on the following known facts: earlier

in the month, the police had responded to a domestic disturbance reported at the

victim‟s residence; earlier on the day of the entry, the victim‟s neighbors had

reported they had not seen her in two weeks, and a note had been left in the home

asking the victim to call police, but no call was received; the police had received

two calls expressing concern for her welfare; mail in the victim‟s mailbox

indicated she had not been home; and Officers Fryslie and Ybarra had gone to the

home in response to a neighbor‟s report that someone had been banging on the

victim‟s front door, and they found the door unlocked. (Id. at pp. 576-577.) The

totality of these circumstances, we concluded, demonstrated an emergency

situation sufficient to justify the officers‟ warrantless entry. (Id. at p. 577.) We

therefore rejected the defendant‟s ineffective assistance claim because any

suppression motion would have been denied. (Id. at p. 578.)

We also rejected the defendant‟s further contention that, even if an

emergency justified the two officers‟ entry into the apartment, their “cutting open

the plastic in which the victim‟s body was wrapped constituted an illegal opening

of a closed container which was not justified by any emergency.” (People v.

Wharton, supra, 53 Cal.3d at p. 578.) Upon entering the victim‟s residence the

officers discovered additional suspicious circumstances, including an unplugged

phone and a suicide note the defendant wrote. When the officers then found and

touched a portion of the plastic wrapping at issue, they apparently thought they



(footnote continued from previous page)

542, 575-576), but its analysis specifically refers to Officers Fryslie and “Ybarra”
(id. at pp. 577-579).

24

had found a potential body disposal site. (Ibid.) As we explained, however, it was

only after the officers cut away the plastic wrapping and discovered the victim‟s

body that “the emergency generated by the reports of a missing person ceased

(because the probable subject of the reports was no longer living) . . . .” (Ibid.)

“Because there existed the possibility that the victim was still alive,” we declined

to fault the officers for cutting away the plastic wrapping despite their suspicion

that it contained a dead body. (Ibid.)10

Similarly, in People v. Lucero (1988) 44 Cal.3d 1006, we concluded that

warrantless entries into the defendant‟s house by several law enforcement officers

were justified because of an exigency created by two missing girls. The two girls

were reported missing after they went to a park and failed to return, and a fire of

unknown origin had ignited in the defendant‟s house, located directly across the

street from that park. (Id. at p. 1012.) After extinguishing the fire, firefighters

discovered what appeared to be a large bloodstain on the living room carpet and

decided it should be examined by law enforcement officers. Deputy Long and

Explorer Scout Rumple were the first law enforcement personnel to enter the

house without a warrant and view the blood stain, and they immediately radioed

Sergeant Anton. When Anton made his warrantless entry, he had just learned that

the body of one of the missing girls was discovered in the dumpster of a

neighborhood grocery store. (Id. at pp. 1016-1017.)


10

The defendant also claimed that an earlier but separate warrantless entry

into the same apartment by Officer Rivas that same day was not justified by any
emergency. We noted there were fewer indications of an emergency when Rivas
entered, but did not address whether an emergency situation existed because Rivas
did not discover any evidence during his entry. “As a result, his entry, even
assuming it was improper, did not (1) lead to suppressible evidence, or (2) taint the
later entry by Fryslie and Ybarra.” (People v. Wharton, supra, 53 Cal.3d at
pp. 578-579.)

25

In assessing whether evidence later recovered from the defendant‟s house,

car, and clothing should have been suppressed, we reviewed the totality of the

circumstances and concluded the warrantless entries into the house by Long,

Rumple, and Anton were justified: “The girls, their bodies, or clues to their

location might be somewhere in the burning house. Thus, when the firefighters

first arrived at the scene, Sergeant Anton advised Captain Bryant of the missing

children and asked him to order his men into the burning house with oxygen

equipment to look for the girls. [¶] The report of the bloodstain was another

unusual circumstance adding weight to the suspicion that the house and the

missing girls might be connected. The presence of blood also suggested that the

children were in serious danger. At the time of Anton‟s entry the body of one of

the girls had just been found, making it likely that the second girl was in imminent

danger and making discovery of her location even more urgent.” (People v.

Lucero, supra, 44 Cal.3d at p. 1017.) “In combination,” we found, “these

circumstances clearly created an emergency situation requiring swift action.” (Id.

at pp. 1017-1018; accord, Vitek v. State (Ind. 2001) 750 N.E.2d 346, 348-349;

State v. Carlson (Iowa 1996) 548 N.W.2d 138, 140-143; State v. Blades (Conn.

1993) 626 A.2d 273, 276-280.)

As in Wharton and Lucero, substantial evidence supports the trial court‟s

determination here that the circumstances known to Detective Carlson established

an objective emergency requiring immediate action. On March 11, 1996, Carlson

received a missing person report containing apparently reliable information that

Beatrice Toronczak, the mother of defendant‟s young child, had been missing

from defendant‟s apartment since approximately February 18, 1996. Carlson

spoke directly with Slimak, the person making the report, and she confirmed the

circumstances of Toronczak‟s disappearance as related to her by Toronczak‟s

mother, Bartosz. Bartosz had tried unsuccessfully to locate Toronczak through

26

defendant and others, and she could not get defendant to report Toronczak as

missing. Bartosz had previously observed defendant threaten to lock Toronczak in

the basement storage area of the complex. Because Bartosz believed he meant it,

she insisted that Slimak tell the authorities to look in that area for the daughter.

Apart from Slimak and Bartosz, neighbors at the complex confirmed that

Toronczak had not been seen for several weeks and that defendant controlled the

keys to the storage rooms. The significance of the foregoing information was

heightened because defendant gave Carlson wrong information about the length of

time Toronczak had been missing, and he exhibited no concern over her

unexplained disappearance. When Carlson mentioned defendant‟s threat to lock

Toronczak in the basement storage area, defendant‟s neck started to visibly throb,

adding to Carlson‟s concern. Defendant never denied making any threat, and he

never denied that Toronczak was in any of the storage rooms when Carlson

repeatedly sought permission to look there for her.

In light of the foregoing, we uphold the trial court‟s determination that

exigent circumstances justified Detective Carlson‟s warrantless entries into the

storage rooms, and conclude that defendant‟s motion to suppress was properly

denied. (People v. Panah, supra, 35 Cal.4th at p. 465.)

Defendant argues to the contrary, contending the circumstances here did not

establish the requisite emergency because: (1) there were no obvious signs of an

emergency, such as moans, groans, or chemical smells emanating from the storage

rooms, and there had been no gunshots or fire; (2) the mere “possibility” that

Toronczak was in the storage room against her will did not justify an emergency

entry; (3) before his entry, Carlson did not believe he had probable cause to obtain

a warrant; (4) the information regarding defendant‟s supposed threat to lock

Toronczak in the basement was nonspecific and did not indicate a present

emergency in the storage rooms; (5) Carlson‟s delays in investigating the storage

27

rooms were not consistent with his professed belief that an emergency situation

existed; and (6) even if the officers had probable cause to enter the storage rooms

with a warrant, the failure to obtain a warrant made the inevitable discovery

doctrine inapplicable. These contentions do not aid defendant‟s position.

As explained, there is no bright line rule for determining whether exigent

circumstances exist; rather, courts must approach each claim of an extraordinary

situation by looking at the totality of the particular circumstances known to the

searching officer. (People v. Panah, supra, 35 Cal.4th at p. 465.) Here, the

absence of any information suggesting Toronczak was dead, defendant‟s

noticeable lack of concern over the whereabouts of his child‟s mother, Bartosz‟s

report of, and evident belief in, defendant‟s threat to lock Toronczak in the

basement, defendant‟s physical reaction when Carlson mentioned that threat, and

defendant‟s sole control over the storage rooms, all contributed to Carlson‟s sense

of urgency about entering the storage rooms immediately to look for Toronczak,

who might have been imprisoned there against her will.

Because the totality of the circumstances must be considered, the fact that

certain circumstances were not present here, such as certain noises or smells, or

gunshots or fire, does not defeat the finding of an emergency. (See People v. Ortiz

(1995) 32 Cal.App.4th 286, 292-293 [“The absence or presence of a particular

factor is not conclusive.”].) Moreover, the length of time Toronczak had been

reported as missing, i.e., three weeks instead of only hours or days, did not negate

the emergency nature of the situation in light of the other circumstances known to

Carlson. (See People v. Wharton, supra, 53 Cal.3d at p. 577 [finding exigent

circumstances where victim had not been seen for two weeks].) Finally, it makes

no difference that Carlson could perhaps have acted even more quickly in trying to

28

find Toronczak,11 or that he subjectively believed he could not have obtained a

search warrant based only on the information he possessed prior to entering the

three storage rooms. That is because the relevant inquiry remains whether, in light

of all of the circumstances, there was an objectively urgent need to justify a

warrantless entry. (People v. Panah, supra, 35 Cal.4th at p. 465; People v. Ortiz,

supra, at p. 293.)

Defendant‟s motion to suppress was properly denied.12

B. Guilt Phase Issues

1. LeFrere’s Testimony

Pamela LeFrere was one of defendant‟s friends. On February 24, 1996,

which was almost a week after Toronczak‟s disappearance, LeFrere, defendant,

defendant‟s young son Nicholas, and others were in the storage area directly

underneath defendant‟s apartment. Upon seeing “some empty pits” about five feet

long and two feet deep in the dirt floor, LeFrere said to defendant, “Who are you

going to kill next?” Defendant did not say anything, but LeFrere noticed he “got


11

The record, however, supports the trial court‟s conclusion that Detective

Carlson acted reasonably and fully consistently with his testimony that he believed
an emergency situation existed. On the day in question, Carlson received and
reviewed the Toronczak missing person report in the morning and within an hour
telephoned both Slimak and defendant for further information. He then went to
Toronczak‟s last known address to follow up on her case in the early afternoon,
after having solved another missing person case assigned to him. Although
Carlson may have spent up to 30 minutes in the first storage room before moving
to the next storage room, the trial court credited his testimony that the soft spots in
the dirt floor warranted a close examination to exclude the possibility that
Toronczak might be buried in a box under the surface.

12

Having concluded that exigent circumstances justified Detective Carlson‟s

entry into the storage rooms, we need not and do not discuss whether, in any
event, the inevitable discovery doctrine would have allowed use of the challenged
evidence.

29

real bug-eyed and got real nervous” and “started pacing.”13 On March 11, 1996,

the police found bloodstained cutting tools and Toronczak‟s partial remains in the

storage area.

At trial, defendant raised a hearsay objection to the evidence of his conduct

in response to LeFrere‟s question. The trial court overruled the objection, finding

the evidence admissible as an adoptive admission. (Evid. Code, § 1221.)

Defendant contends this ruling constituted reversible error. We conclude the

evidence did not implicate verbal expression subject to the hearsay rule.

“ „Hearsay evidence‟ is evidence of a statement that was made other than

by a witness while testifying at the hearing and that is offered to prove the truth of

the matter stated.” (Evid. Code, § 1200, subd. (a).) Nonverbal conduct constitutes

a “statement” that was made for purposes of the hearsay rule only if it was

“intended by [the person] as a substitute for oral or written verbal expression.”

(Evid. Code, § 225, subd. (b).)

Here, nothing suggests that defendant intended his physical reaction to

LeFrere‟s question to be “a substitute for oral or written verbal expression.”

(Evid. Code, § 225, subd. (b).) Rather, LeFrere‟s testimony that defendant “got

real bug-eyed and got real nervous” and “started pacing” merely described

nonverbal, nonassertive, emotional behavior. (See People v. Jurado (2006) 38

Cal.4th 72, 129 [“defendant‟s emotional displays were nonassertive conduct, and

thus not within the hearsay rule”]; People v. Snow (1987) 44 Cal.3d 216, 227

[defendant‟s silence upon learning of the victim‟s death was not a statement under


13

LeFrere offered the above observations during the prosecution‟s direct

examination. On cross-examination, LeFrere added that defendant dropped his
head, would not look at her, and exhaled after she asked, “Who are you going to
kill next?”

30

the hearsay rule and was admissible to show his prior knowledge of the killing].)

The evidence was not subject to the hearsay rule.

Even if nonhearsay, “[n]o evidence is admissible except relevant evidence.”

(Evid. Code, § 350.) That standard was met here. Defendant‟s conduct —

consisting of acute upset to what appeared to be a flippant remark — gave rise to a

reasonable inference that defendant knew killings had occurred, possibly even in

the storage area, and therefore was relevant as consciousness of guilt. (See Evid.

Code, §§ 210, 350; e.g., People v. Farnam (2002) 28 Cal.4th 107, 129-130, 153-

154 [evidence of defendant‟s defiant reaction when ordered to provide hair and

blood samples for testing was admissible to show consciousness of guilt].)

Although relevant evidence may nonetheless be excluded when it creates a

substantial danger of undue prejudice, confusion, or misleading the jury (Evid.

Code, § 352), the evidence here posed no such risk.

LeFrere‟s testimony describing defendant‟s nonverbal conduct did not

implicate the hearsay rule and was relevant to the issue of guilt without being

inflammatory or misleading. It was therefore properly admitted.14


14

Although our analysis differs from that of the trial court, “ „we review the

ruling, not the court‟s reasoning and, if the ruling was correct on any ground, we
affirm.‟ ” (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.)

Defendant also argues that the trial court should not have instructed the jury

with CALIC No. 2.71.5 (the standard instruction on adoptive admissions), and that
the instruction should have been specifically limited in application to the Albano
murder count. Setting aside the fact that LeFrere‟s testimony did not implicate the
hearsay rule, the right to appellate review of these claims has been forfeited
because defendant failed to raise appropriate objections at trial. (See People v.
Hillhouse
(2002) 27 Cal.4th 469, 503 [“A party may not argue on appeal that an
instruction correct in law was too general or incomplete, and thus needed
clarification, without first requesting such clarification at trial.”].)

31

Having concluded that admission of the evidence was not error, we reject

defendant‟s further contentions that the court‟s ruling violated his state and federal

rights to due process of law, a fair trial, confrontation of witnesses, and reliable

guilt, special circumstance, and penalty determinations, and that it rendered his

trial fundamentally unfair.

2. Admission of Victims’ Photographs

Over defendant‟s objection, the trial court permitted the prosecution to

introduce into evidence photographs showing the three victims while they were

alive. One photograph was of Rose Albano, and the other showed Ron Stadt,

Debra Stadt, and Beatrice Toronczak at a concert. Defendant contends this ruling

constituted prejudicial error and violated his state and federal constitutional rights

to due process, an impartial jury, a fair trial, and reliable guilt and special

circumstance determinations.

We have recognized that “[c]ourts should be cautious in the guilt phase

about admitting photographs of murder victims while alive, given the risk that the

photograph will merely generate sympathy for the victims. [Citation.] But the

possibility that a photograph will generate sympathy does not compel its exclusion

if it is otherwise relevant. [Citation.] The decision to admit victim photographs

falls within the trial court‟s discretion, and an appellate court will not disturb its

ruling unless the prejudicial effect of the photographs clearly outweighs their

probative value. [Citation.]” (People v. Harris (2005) 37 Cal.4th 310, 331-332;

see People v. Boyette (2002) 29 Cal.4th 381, 424.)

We conclude the trial court did not abuse its broad discretion in admitting

the two challenged photographs. As the prosecution pointed out, there were three

victims in the case, two of the victims were similar in appearance to two of the

witnesses, all four had been girlfriends of defendant, and one victim and one

32

witness had the same first name, Rose.15 Given these circumstances, admission of

the photographs was proper to meet the prosecution‟s concern that the jurors might

“lose track of who these individuals are” and also to help any witnesses “identify

the people that they saw in this case.”16 Moreover, the two photographs were not

unduly prejudicial so as to outweigh their probative value; indeed, our review

confirms the photographs were neutral and unremarkable and would not have

engendered an emotional reaction capable of influencing the verdict. (See People

v. Harris, supra, 37 Cal.4th at p. 332.) We reject defendant‟s claims of error and

constitutional violations.

3. Admission of Autopsy Photographs

Over defendant‟s objections, the trial court allowed the prosecution to

introduce into evidence photographs of various body parts of victims Albano and

Toronczak. Four photographs showed the plastic bag containing Albano‟s arm

and leg, and others showed Albano‟s arm and leg at the brushy location where

they were found. Autopsy photographs showed Albano‟s dismembered left arm

and left leg, and a part of her jaw missing teeth. Four photographs showed

Toronczak‟s ten fingers, jaw parts, and teeth, which were recovered from a bucket

in the storage room under defendant‟s control. Defendant contends that none of


15

Victim Rose Albano was defendant‟s former girlfriend and witness Rose

McKinney was his girlfriend at the time of trial, and both were short with dark
complexions. Victim Beatrice Toronczak and witness Debra Stadt were also
former girlfriends of defendant, and both were blond and thin.

16

Having reached this conclusion, we need not and do not address whether

the photographs, which helped to show the similar physical appearances of the two
sets of girlfriends, were relevant on the additional ground stated by the court that
the case was “very, very circumstantial in nature.”

33

these photographs was relevant and that all them should have been excluded under

Evidence Code section 352 as more prejudicial than probative.

A trial court‟s “decision to admit victim photographs is a discretionary

matter that we will not disturb on appeal unless the prejudicial effect of the

photographs clearly outweighs their probative value. [Citations.]” (People v.

Martinez (2003) 31 Cal.4th 673, 692; see People v. San Nicolas (2004) 34 Cal.4th

614, 664.) “[M]urder victim photographs need not be rejected merely because

they are cumulative to other evidence in the case. [Citation.]” (People v.

Martinez, supra, at p. 692; see People v. San Nicolas, supra, at p. 665.)

The challenged photographs had significant probative value. The Albano

photographs showed the location where her body parts were found. They also

showed that markings on Albano‟s arm and leg were consistent with them having

been removed from her torso with the handsaw found in the third storage room

under defendant‟s apartment, and that the tie mark on Albano‟s wrist could have

been made by the black nylon rope found in the first storage room or by a plastic

tie similar to those found cut up and stained with Toronczak‟s blood in the third

storage room.

Comparisons of the Albano and Toronczak photographs showed that the

jaw parts of both women were missing teeth. These photographs were relevant in

light of a conversation that defendant had with Debra Stadt after Ron Stadt

disappeared in June 1993 and soon after Albano disappeared around Christmas

that same year. In that conversation, Debra Stadt told defendant that her estranged

husband had extensive dental records and could be identified by his teeth.

Defendant told Debra Stadt “that was the only thing that he forgot” and that “[i]t

was the only mistake he made.” As the prosecution argued, defendant‟s comments

could be construed to mean he forgot to remove Stadt‟s teeth after killing him so

as to prevent identification of his body, but consistent with what the photographs

34

showed, defendant sought to remove his victims‟ teeth the next two times he

killed.

By showing that the physical details of the body parts tended to support a

connection between defendant and the Albano and Toronczak murders, the

challenged photographs were relevant to the ultimate determination of guilt. (See

People v. San Nicolas, supra, 34 Cal.4th at p. 665.) The record discloses that the

trial court duly weighed their probative value and prejudicial effect, and our own

examination of the photographs confirms that, while gruesome, they were neither

unduly so nor inflammatory. Finally, although the photographs largely served to

corroborate testimonial evidence, that circumstance alone did not compel their

rejection. (See ibid.; People v. Martinez, supra, 31 Cal.4th at p. 692.)

4. Loretta Peer Incident

Loretta Peer was in the process of getting a divorce when she met defendant

in January 1993. Defendant was interested in Peer, and asked for her telephone

number. He called her, had cards delivered to her work address, and left chalk or

pencil messages on her car windows. When Peer testified that defendant left a

note “inside of my car on my steering wheel when the car was totally sealed,”

defendant objected on grounds of relevance. The court overruled the objection,

and the prosecutor elicited Peer‟s testimony that defendant must have broken into

her locked car, but she did not see any damage. On appeal, defendant contends the

court erroneously overruled his relevance objection and admitted prejudicial

evidence that he had committed an uncharged criminal act.

Evidence of a defendant‟s prior criminal act generally is inadmissible when

offered to prove the defendant‟s conduct on a specified occasion. (Evid. Code,

§ 1101, subd. (a).) Such evidence is admissible, however, when relevant to prove

some fact in issue (such as motive, intent, knowledge, identity, or the existence of

35

a common design or plan), other than a disposition to commit such an act. (Evid.

Code, § 1101, subd. (b).)

At trial, the prosecution was not asked to explain the relevance of the

challenged testimony. In this court, respondent observes that, in light of the

circumstance that Peer initially did not respond to defendant‟s calls, cards, and

messages, it was reasonable to infer that defendant‟s motive for the break-in was

to exercise control over Peer by leaving a message inside her locked car. In

respondent‟s view, “[t]his tended to establish [defendant‟s] method of solving

problems by controlling the situation and being the individual in charge.” While

acknowledging that breaking into a car to leave a note is not committing murder,

respondent argues “it is reasonable to infer [defendant‟s] motive to kill resulted

from the seriousness of the problems the victims[] presented for [defendant] and

the closer relationship between [defendant] and the three murder victims.”

We need not decide whether the trial court ruled erroneously, because any

error was harmless. Peer‟s reference to the break-in incident was very brief, and

she expressed no fear or negative feelings about the incident. To the contrary,

Peer testified she subsequently became friends with defendant and went to dinners,

movies, and shows with him. The prosecution made no mention of the break-in

incident during its closing argument.

At the same time, the circumstantial and physical evidence pointing to

defendant‟s guilt was overwhelming. Defendant was close to all three murder

victims and had both the motive and the opportunity to kill each one.

With regard to Ron Stadt, the prosecution‟s case against defendant included

evidence that Stadt had intended to use evidence of defendant‟s affair with Stadt‟s

estranged wife Debra in his child custody dispute with Debra. Debra last saw

Stadt in the alley at defendant‟s apartment complex on June 24, 1993, when

defendant told Debra in an urgent tone of voice to leave the area. Stadt was never

36

seen again. Defendant spoke of Stadt‟s disappearance to friends, saying at various

times that Stadt was killed in a fight, that he drove off into the sunset, that he

would not be bothering Debra anymore, and that he was mountain lion food. After

Stadt vanished, defendant was in possession of Stadt‟s radar detector and car key,

and he made calls to unlisted telephone numbers that had not been shared with him

but had been given to Stadt.

On the Rose Albano murder count, the case included evidence that

defendant wanted Albano, who was pregnant, to get an abortion and move out of

his apartment. He did not want to marry Albano or be responsible for her

children. Defendant reported Albano missing in two suspicious calls to the San

Diego Police Department. In the first call, defendant stated Albano lived at 7007

Saranac, apartment 209 (defendant‟s address) and claimed he last saw her on

December 12, 1993, at around 1:00 p.m. In the second call, he gave a different

address for Albano, and said he last saw her on December 21, 1993, at 7:00 a.m.

Defendant never showed any concern over Albano‟s disappearance and, as with

Stadt, defendant gave different explanations as to where she went. On December

29, 1993, the day Albano‟s partial remains were found, defendant told his sister

that Albano‟s mother told him Albano‟s body parts had been found, even though

the authorities did not inform the Albano family concerning identification of the

remains until January 27, 1994. After Albano had been found murdered and the

police had interrogated defendant, he gave Kimberly Skolte his money, his airline

ticket to Poland, his ATM card with his PIN, his mailbox keys, and his passport,

because he was concerned he was a suspect.

The case against defendant on the Beatrice Toronczak murder count was

especially strong. Defendant did not care for the way Toronczak was raising their

son, Nicholas. When Toronczak returned from Poland in February 1996, she

moved into defendant‟s apartment and displaced defendant‟s then live-in

37

girlfriend, Rose McKinney, who had to move out. As with the previous two

victims, defendant told friends different things about Toronczak‟s disappearance,

e.g., that she ran off with a Mexican man to the Mexican border, that she probably

went to Germany, and that she probably went to Las Vegas or to Poland.

Defendant was not concerned that his child‟s mother had vanished without a word,

and he refused Toronczak‟s mother‟s request to file a missing person report. On

March 11, 1996, Toronczak‟s jaw parts and ten severed fingers, as well as

bloodstained tools including a handsaw, a butcher knife, and a hammer that

apparently had been used to dismember her body, were found in the third storage

room underneath defendant‟s apartment. Only defendant had the keys to the

storage room, and his fingerprints were found inside latex surgical gloves, which

apparently had been inside other gloves stained with Toronczak‟s blood.

McKinney later claimed defendant told her that he “did it” for them.

Results of the autopsies also linked the murders to defendant. Specifically,

Albano‟s severed arm and leg showed cuts that could have been made with the

same handsaw found in the storage room, and a mark on her wrist indicated

binding, perhaps by black nylon rope or by a plastic tie similar to those found

stained with Toronczak‟s blood. Moreover, the jawbones of both Albano and

Toronczak were found separated from their bodies, and both were missing teeth.

When Debra Stadt told defendant that her estranged husband had extensive dental

records and could be identified by his teeth, defendant remarked “that was the only

thing that he forgot” and “[i]t was the only mistake he made.” As the prosecution

argued, it was reasonable to construe the circumstances as indicating that,

although defendant forgot to remove Stadt‟s teeth to hinder identification of his

body, he remembered this detail when he later killed Albano and Toronczak.

In sum, a reversal is unwarranted. Given the strength of the prosecution‟s

case, which included significant physical evidence, a mountain of circumstantial

38

evidence, and defendant‟s own inconsistent and self-incriminating statements, it is

not reasonably probable that a different result would have been obtained absent

Peer‟s brief mention that defendant broke into her car to leave a note. (People v.

Lindberg (2008) 45 Cal.4th 1, 26; People v. Watson (1956) 46 Cal.2d 818, 836-

837.)17 For the same reasons, any erroneous admission of the testimony was

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,

24; see People v. Lindberg, supra, at p. 26.)

5. Failure to Instruct on Voluntary Manslaughter

With respect to the count involving Ron Stadt, the trial court instructed the

jury on first and second degree murder. The court, however, denied defendant‟s

request to give five voluntary manslaughter instructions based on provocation/heat

of passion. (CALJIC Nos. 8.37 [manslaughter - defined]; 8.40 [voluntary

manslaughter - defined]; 8.50 [murder and manslaughter distinguished]; 8.55

[homicide - cause - defined]; 8.72 [doubt whether murder or manslaughter].)

Defendant claims this omission constituted prejudicial error and violated his state


17

Defendant also complains the prosecution relied on Peer‟s break-in

testimony to bolster its penalty phase argument that he was “scary.” But his
failure to object to the prosecution‟s argument forfeits review of this claim. In any
event, the prosecution‟s mention of the incident could not have been prejudicial
when considered in context. During the penalty phase, the prosecution introduced
evidence of two uncharged batteries: one against Rose McKinney and one against
Rose Sullivan. When arguing that defendant entered McKinney‟s locked house
when she was not there, the prosecution noted by reference to the Peer break-in
that the entry was not an isolated incident. The trial court, however, specifically
instructed the jurors that the uncharged batteries against McKinney and Sullivan
were the only two prior criminal acts they could consider in aggravation. The
prosecution did not argue otherwise, and it is not reasonably possible that the
outcome would have been different had there been no mention of the Peer
incident.

39

and federal constitutional rights to due process, a fair jury trial, presentation of a

defense, and reliable guilt and special circumstance determinations.

“In a criminal case, a trial court must instruct on general principles of law

relevant to the issues raised by the evidence, even absent a request for such

instruction from the parties. [Citation.] The obligation extends to instruction on

lesser included offenses when the evidence raises a question as to whether all the

elements of the charged offense were present, but not when there is no evidence

that the offense committed was less than that charged. [Citation.]” (People v.

Cruz (2008) 44 Cal.4th 636, 664.) Here, the trial court was required to instruct on

the provocation/heat of passion theory of manslaughter as a lesser included

offense of the charged murder, if substantial evidence supported that theory.

(Ibid.)

“ „The heat of passion requirement for manslaughter has both an objective

and a subjective component. [Citation.] The defendant must actually,

subjectively, kill under the heat of passion. [Citation.] But the circumstances

giving rise to the heat of passion are also viewed objectively. As we explained

long ago in interpreting the same language of section 192, “this heat of passion

must be such a passion as would naturally be aroused in the mind of an ordinarily

reasonable person under the given facts and circumstances,” because “no

defendant may set up his own standard of conduct and justify or excuse himself

because in fact his passions were aroused, unless further the jury believe that the

facts and circumstances were sufficient to arouse the passions of the ordinarily

reasonable man.” ‟ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1215-

1216.)

Here, the sum of the evidence bearing on the last known interaction

between defendant and Stadt was as follows. Defendant and Ron Stadt were once

best friends. By April or May 1993, Stadt had learned of an affair between his

40

estranged wife, Debra, and defendant. Besides being hurt and in disbelief, Stadt

decided he would use evidence of the affair in his dispute with Debra over child

custody. On June 24, 1993, Stadt had a telephone conversation with defendant

between 4:00 and 5:00 p.m. The conversation was “heated” and involved “some

arguing.” After the conversation, Stadt said he was going over to defendant‟s

apartment to retrieve some personal items — possibly jewelry — left there by

Debra. That same day, at about 6:20 p.m., Debra saw defendant and Stadt

separately drive up to defendant‟s apartment building. Defendant told Debra in a

“fairly urgent” tone to leave, and she did. He later told Debra that he and Stadt

“talked” that evening. During a subsequent interview with a deputy sheriff,

defendant said that when Stadt arrived at his place on June 24, 1993, Stadt blamed

him for the separation from Debra and accused defendant of being the reason why

Stadt could not see his children anymore. According to Ash Darwish, defendant

was ordinarily a very calm person, but on one occasion when defendant was

tinting car windows, Darwish saw him go “ballistic in a phenomenal way” and

destroy everything in front of him.

Whether considered separately or together, the foregoing did not furnish

substantial evidence to support a determination that, if defendant killed Stadt, he

did so under immediate provocation or in the heat of passion. Significantly, there

was no evidence, testimonial or otherwise, indicating that Stadt did anything to

provoke a violent or impassioned response from defendant when the two met at

defendant‟s apartment complex, or that Stadt acted in any manner to trigger such a

passion as would naturally be aroused in the mind of an ordinarily reasonable

person. Evidence that defendant once lost his temper in an unrelated incident did

not constitute substantial evidence that he lost control on the evening in question.

“Speculation is an insufficient basis upon which to require the giving of an

instruction on a lesser offense.” (People v. Wilson (1992) 3 Cal.4th 926, 941.)

41

Indeed, even if the two men argued earlier over the telephone, and even if Stadt

continued to be angry at defendant over his separation and child custody problems,

any conclusion that defendant suddenly and immediately reacted to something

Stadt said or did is undermined by the absence of any evidence of on-the-spot

explosion of violence and by the circumstance that Stadt vanished without a

trace.18

On this record, the trial court had no duty to instruct the jury on voluntary

manslaughter, and no state or federal constitutional error occurred.

6. CALJIC No. 2.06

Over the defense‟s objection, the trial court instructed the jury with

CALJIC No. 2.06, as follows: “If you find that the defendant attempted to

suppress evidence against himself in any manner, such as by destroying evidence

or by concealing evidence, this attempt may be considered by you as a

circumstance tending to show a consciousness of guilt. However, this conduct is

not sufficient by itself to prove guilt, and its weight and significance, if any, are

for you to decide.” Defendant contends this was prejudicial error and a violation

of his federal constitutional rights to due process and a fair trial. These

contentions lack merit for the reasons below.

There was evidence here that the fingers and parts of the jawbone (with

some teeth attached and some loose) had been removed from Toronczak‟s corpse.

Although the rest of the body was missing, Toronczak‟s fingers and jaw parts were


18

In his reply brief, defendant additionally points to evidence that Gerald

Kurpet testified that (1) Kurpet witnessed an incident in 1992 when Stadt became
“edgy” because Debra Stadt was paying attention to defendant and siding with
defendant in a conversation rather than with Stadt; and (2) defendant told Kurpet
that Stadt was killed in a fight. The Kurpet testimony adds nothing of
consequence to the analysis.

42

found together in the third storage room underneath defendant‟s apartment. Only

defendant had the keys to that room, and in that same location defendant‟s

fingerprints were found on the inside of latex gloves that fit inside other gloves

stained with Toronczak‟s blood. Because the jury could reasonably infer from this

evidence that defendant attempted to conceal evidence by removing identifying

body parts from Toronczak‟s corpse before disposing of it, CALJIC No. 2.06 was

properly given.

Contrary to defendant‟s assertion, the instruction did not violate his rights

to due process and a fair trial. As we have recognized, “CALJIC No. 2.06 benefits

the defense by „ma[king] clear to the jury that certain types of deceptive or evasive

behavior on a defendant‟s part could indicate consciousness of guilt, while also

clarifying that such activity was not of itself sufficient to prove a defendant‟s guilt,

and allowing the jury to determine the weight and significance assigned to such

behavior.‟ [Citations.]” (People v. Farnam, supra, 28 Cal.4th at p. 165.)19

7. Judge Link’s Temporary Absence

Judge Frederic Link of the San Diego County Superior Court was the judge

presiding over defendant‟s trial. On the afternoon of June 30, 1997, Judge Link

was absent from the trial due to “business in Sacramento.”


19

Our conclusion is consistent with People v. Mason (1991) 52 Cal.3d 909,

which held in an analogous context that the need for consciousness of guilt
instructions “ „does not change just because identity is also an issue. Instead, such
a case [only] requires the jury to proceed logically by deciding first whether the
[person who fled] was the defendant and then, if the answer is affirmative, how
much weight to accord to flight in resolving the other issues bearing on guilt. The
jury needs the instruction for the second step.‟ ” (Id. at p. 943.) Because there
was evidence that defendant removed identifying body parts from Toronczak‟s
corpse before disposing of it, CALJIC No. 2.06 properly instructed the jury it
could consider such actions as tending to show a consciousness of guilt.

43

Judge Christine Pate was presiding in his absence when the jury returned its

signed guilt phase verdict forms finding defendant guilty of the first degree murder

of Toronczak (count one) and the first degree murder of Albano (count three) and

finding him not guilty of the second degree murders of those two victims. Out of

the presence of the jury, Judge Pate discussed with both sides the jury‟s apparent

confusion regarding the verdict forms. It was agreed that Judge Pate would

explain to the jury that, once it had filled out the verdict forms finding defendant

guilty of the first degree murders of Albano and Toronczak, the verdict forms for

second degree murder should not have been filled out as to those victims. It was

also agreed that Judge Pate would ask the foreperson what his intent was in filling

out the forms, and if any of the other jurors disagreed with his explanation then the

jury would be sent back for further deliberations. After Judge Pate ascertained it

was the jury‟s intention to return guilty verdicts as to first degree murder on counts

one and three, she granted defendant‟s motion to strike the not guilty verdicts as to

second degree murder on those two counts. Judge Pate also clarified her ruling

was without prejudice in the event Judge Link had any further thoughts on the

matter. When Judge Link returned the following Monday, July 7, 1997, he

apologized to the jury for being absent, stated he was out of town on business in

Sacramento, and noted the verdict issue had been resolved.

Defendant contends on appeal that Judge Pate‟s substitution in Judge

Link‟s absence was improper under section 1053, and that the substitution violated

his state and federal constitutional rights to a jury trial and federal right to have the

continuous presence of the same judge throughout his entire trial. Defendant

claims the error was structural and reversible per se.

Section 1053 provides in relevant part: “If after the commencement of the

trial of a criminal action or proceeding in any court the judge or justice presiding

at the trial shall die, become ill, or for any other reason be unable to proceed with

44

the trial, any other judge or justice of the court in which the trial is proceeding

may proceed with and finish the trial . . . .” (Italics added.) A substitution

pursuant to section 1053 does not require the defendant‟s consent or violate his or

her due process rights. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1211-1212.)

One court has held that section 1053 was violated when a substitution occurred so

that the presiding judge could attend to preexisting supervisory court

responsibilities. (People v. Truman (1992) 6 Cal.App.4th 1816, 1825-1827.)

Respondent does not contend Judge Link was “unable to proceed” within

the meaning of section 1053. As respondent asserts, however, defendant forfeited

the issue by failing to object when: (1) Judge Link announced on June 27, 1997,

that he would be absent on the afternoon of June 30, 1997, and that he planned to

have another experienced judge sit in for him that afternoon; (2) Judge Pate took

the bench on June 30; and (3) Judge Link explained, upon his return, that he had

been out of town on business in Sacramento and noted the verdict issue had been

resolved. We reject defendant‟s effort to secure “a second bite at the apple” by

belatedly raising his section 1053 objections. (People v. Halvorsen (2007) 42

Cal.4th 379, 429.)20

Even had defendant‟s state and federal contentions been preserved for

review, he would not be entitled to relief. In the first place, a midtrial substitution

of judges does not implicate either the federal or the state constitutional right to

jury trial. (People v. Espinoza (1992) 3 Cal.4th 806, 829.)

Moreover, even assuming Judge Link‟s business trip did not amount to an

inability to proceed under section 1053, any possible error in his substitution was


20

Defendant offers no legal authority, and we are aware of none, supporting

his contention that a criminal defendant must make a personal, knowing, and
intelligent waiver of the right to have the same judge preside over the entire trial.

45

harmless. Judge Pate presided over the guilt phase deliberations for half a day,

and she made no evidentiary or instructional rulings that would have required

familiarity with the particulars of defendant‟s case. In receiving the verdicts,

Judge Pate consulted with both parties and obtained their agreement to clarify

whether the jury intended to find defendant guilty of the first degree murders of

Albano and Toronczak. Once she secured that clarification, she committed no

error in granting defendant‟s motion to strike the two second degree murder

verdicts without prejudice. On this record, any conceivable error in the

substitution of Judge Link was harmless beyond a reasonable doubt. (People v.

Halvorsen, supra, 42 Cal.4th at p. 429 [applying Chapman harmless error

standard].)21

C. Penalty Phase Issues

1. Sentencing for Second Degree Murder

The jury convicted defendant of three homicides — the first degree murders

of Albano and Toronczak, and the second degree murder of Stadt — and also

found true the single multiple-murder special-circumstance allegation. At the

penalty phase, the jury was given two alternative verdict forms reflecting the

choice of imposing either a single sentence of death or a single sentence of life

without the possibility of parole.22 The verdict forms did not reflect that the


21

An improper substitution of a judge during a criminal trial is not a

structural defect that is reversible per se. (People v. Halvorsen, supra, 42 Cal.4th
at p. 429.)

22

One verdict form read: “We, the jury in the above-entitled cause,

determine that the penalty shall be death.” The other form read: “We, the jury in
the above-entitled cause, determine that the penalty shall be confinement in the
state prison for life without possibility of parole.”

46

identified sentence would apply only to the two first degree murders of Albano

and Toronczak, and not to the second degree murder of Stadt.

Defendant does not contend it was error to allow the jury to render a single

death verdict, rather than individual verdicts for each of the two capital crimes.

Rather, he asserts that the forms provided, combined with the court‟s failure to

specify in its instructions the counts on which the penalty decision was to be based

and with the prosecution‟s argument describing the case as being about “three

murders,” misled the jury into returning a death sentence for all three murders,

including the second degree murder of Stadt. According to defendant, the jurors

were obligated to determine “whether or not to impose the death penalty for two

first-degree murders made worse by the fact that there were three homicides

altogether.” In claiming the jurors were instead allowed to sentence him to death

“for three homicides, including one second-degree murder,” defendant asserts the

error violated his state and federal constitutional rights to a fair trial, due process, a

reliable penalty determination, and meaningful appellate review. We are not

persuaded.

In accordance with the mandate of section 190.3, the trial court instructed

the jury that, in reaching its penalty decision, it must consider the various factors

in aggravation and in mitigation, including the circumstances of the crime of

which defendant was convicted and the special circumstances found true.

(§ 190.3, factor (a); CALJIC No. 8.85.) Consistent with section 190.3 and the

court‟s instructions, the prosecution properly reminded the jury, without any

defense objection, that it had “proved three murders, three of them.” After

reviewing the circumstances of the Stadt and Albano murders, the prosecution

argued, also without objection, that defendant deserved the death penalty for those

two murders and the multiple-murder special-circumstance finding. The

prosecution then argued that if that was not enough for the jury to vote for death,

47

then there was another murder to consider, that of Toronczak, and that together the

three murders certainly warranted a death verdict.23 The instructions were correct,

the prosecution‟s arguments were appropriate, and the jury was not misled. On

this point, no state law or constitutional error occurred.

Defendant is correct, however, that the trial court entered a judgment that

erroneously imposed only a single sentence — death — as to all three murder

counts. Respondent agrees and acknowledges that a death sentence is not

authorized for second degree murder. Accordingly, pursuant to our statutory

power to modify an unauthorized sentence (§ 1260), we vacate the death sentence

imposed on the second degree murder count (count two) and order the judgment

modified to reflect the appropriate sentence for that count, which is a state prison

term of 15 years to life. (People v. Barnwell (2007) 41 Cal.4th 1038, 1048 &

fn. 7.) Contrary to defendant‟s suggestion, we find it entirely unnecessary, given

the circumstances of this case, to remand the matter to the trial court to allow

consideration whether the authorized sentence on the second degree murder count

should be stayed.

2. Failure to Give Clarifying Jury Instructions

Defendant contends the trial court gave contradictory and erroneous

instructions that were confusing and failed to give the jury all the tools necessary


23

The prosecution argued: “Then you add in Beatrice Toronczak. Now what

do you do? You still give him life without parole, if you do, the statement is that
was a freebie, she doesn‟t count. He gets no more additional punishment for that.
[¶] Multiple murders count with two. He has done three. He has gone beyond the
minimum. Beatrice Toronczak counts. What he did to her and her family counts.
She was another one who loved him and trusted him and gave him a child, hoped
at one point, it sounds like, to be a family with him and never came to be and he
brutally murdered her or at least brutally disposed of her. And this is after he had
gotten away, committed and gotten away with two murders.”

48

to make the penalty determination. In particular, he faults the court for not having

specifically informed the jury which of the guilt phase instructions applied to the

penalty phase, such as, for example, CALJIC No. 2.01 (sufficiency of

circumstantial evidence - generally), CALJIC No. 2.09 (evidence limited as to

purpose), CALJIC No. 2.22 (weighing conflicting testimony), and CALJIC No.

2.82 (hypothetical questions in examining experts). This error, he claims,

deprived him of his state and federal constitutional rights to due process, a fair

trial, and a reliable penalty determination.

Defendant did not raise this claim below and therefore has forfeited its

review. (People v. Rundle (2008) 43 Cal.4th 76, 188.) Even were we to reach the

merits of the claim, we would find no error.

Here the trial court instructed the jury that “unless otherwise indicated . . .

all applicable instructions given in the guilt phase will apply.” The court

additionally instructed the jury to disregard only those guilt phase instructions that

conflicted with the penalty phase instructions the court was about to give.24


24

Both before and after the penalty phase arguments, the trial court informed

the jury it would be giving a set of instructions to guide its penalty determination.
The court‟s preliminary instruction indicated the final instructions would include
some of the guilt phase instructions because they “may be of some assistance in
the general evaluation of the evidence that you have heard in the penalty phase,”
and further specified that “unless otherwise indicated as with the sympathy
instruction you will hear, all applicable instructions given in the guilt phase will
apply.” When it delivered the final penalty phase instructions, the court stated in
relevant part: “You will now be instructed as to all of the law that applies in the
penalty phase of this trial. [¶] You must determine what the facts are from the
evidence received during the entire trial unless you are instructed otherwise. You
must accept and follow the law as I state [it] to you. Disregard all other
instructions given to you in other phases of this trial which conflict with these
instructions
.” (See CALJIC No. 8.84.1, as modified by italicized clause.)
Contrary to defendant‟s assertion, there was no error or ambiguity in these
instructions.

49

Having instructed as such, the court was not obligated to repeat all the guilt phase

instructions that applied to the penalty phase. (See People v. Rogers (2006)

39 Cal.4th 826, 905 [distinguishing those situations in which a penalty phase jury

was instructed, without limitation, to disregard all other instructions given in other

phases of the trial]; see People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1067;

People v. Cooper (1991) 53 Cal.3d 771, 846.)

Moreover, where, as here, none of the generic CALJIC instructions is, by

its terms, limited to the guilt phase, and none is contradicted by the penalty phase

instructions, a reasonable jury would correctly assume those instructions continue

to apply at the penalty phase. (People v. Sanders (1995) 11 Cal.4th 475, 561;

People v. Wharton, supra, 53 Cal.3d at p. 600.) In sum, there is nothing to suggest

the jury was misled into believing that instructions such as CALJIC Nos. 2.01,

2.09, 2.22, and 2.82 did not continue to apply at the penalty phase, and the trial

court did not err in failing to give these instructions a second time.25

3. Refusal of Defendant’s Lingering Doubt Instruction

Defendant contends the trial court‟s refusal to give a lingering doubt

instruction constituted prejudicial error and violated his state and federal


25

As relevant to the aggravating evidence of the two uncharged batteries

(§ 190.3, factor (b)), we do not agree a reasonable jury would have rejected the
continued applicability of CALJIC No. 2.01, which generally instructed on the
sufficiency of circumstantial evidence to support a finding of guilt. Although the
court did not reinstruct with CALJIC No. 2.01, it specifically repeated CALJIC
No. 2.00, which described the differences between direct and circumstantial
evidence and the acceptability of both as a means of proof. The court also
instructed with CALJIC No. 8.87, regarding the requirement of proof beyond a
reasonable doubt of other criminal activity offered in aggravation, and with
CALJIC Nos. 16.140, 16.141, and 16.142, pertaining to the elements of the crime
of battery. Additionally, the court repeated CALJIC No. 2.90, which defined the
reasonable doubt burden of proof.

50

constitutional rights. As the concept is sufficiently covered in CALJIC No. 8.85,

we have consistently rejected state and federal law claims that a trial court must

specifically instruct on lingering doubt. (People v. Zamudio, supra, 43 Cal.4th at

p. 370; People v. DePriest (2007) 42 Cal.4th 1, 59-60 [and cases cited].)

4. Court’s Instruction with CALJIC No. 8.85

Defendant contends the trial court violated both state law and the federal

Constitution by instructing the jury with an incorrect version of CALJIC No. 8.85,

the standard instruction describing the factors in aggravation and mitigation for

consideration of the penalty.26 According to defendant, by telling the jury it “may

26

The trial court orally gave the following version of CALJIC No. 8.85:

“Now, in determining which penalty is to be imposed on the defendant, you shall
consider all of the evidence which has been received during any part of the trial in
this case, except as you may be hereafter instructed. You may consider, take into
account and be guided by the following factors, if applicable: [¶] A, the
circumstances of the crime of which the defendant was convicted in this present
proceeding and the existence of any special circumstances found to be true. [¶] B,
the presence or absence of criminal activity by the defendant, other than the crimes
for which the defendant has been tried in the present proceedings, which involve
the use or attempted use of force or violence or the express or implied threat to use
force or violence. [¶] C, the presence or absence of any prior felony conviction,
other than the crimes for which the defendant has been tried in the present
proceedings. [¶] D, whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance. [¶] E,
whether or not the victim was a participant in the defendant‟s homicidal conduct
or consented to the homicidal act. [¶] F, whether or not the offense was
committed under circumstances which the defendant reasonably believed to be a
moral justification or extenuation for his conduct. [¶] G, . . . whether or not the
defendant acted under extreme duress or under the substantial domination of
another person. [¶] H, whether or not at the time of the offense the capacity of the
defendant to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was impaired as a result of mental disease or defect or the
effects of intoxication. [¶] I, the age of the defendant at the time of the crime. [¶]
J, whether or not the defendant was an accomplice to the offense and his
participation in the commission of his offense was relatively minor. [¶] K, any
other circumstance which extenuates the gravity of the crime even though it is not


(footnote continued on next page)

51

consider, take into account and be guided by” the statutory factors in aggravation

and mitigation, rather than instructing that it “shall” do so, the court failed to

require the jury to consider his case in mitigation when determining his penalty.

No prejudicial error occurred.

We determine the correctness of jury instructions “ „ “from the entire

charge of the court, not from a consideration of parts of an instruction or from a

particular instruction.” [Citation.]‟ ” (People v. Smithey (1999) 20 Cal.4th 936,

987.) Here, even assuming the court misspoke in reading that one sentence of

CALJIC No. 8.85 to the jury, the court twice read a correct version of CALJIC

No. 8.88, once before and once after the closing arguments, which instructed on

essentially the same point: “You shall consider, take into account, and be guided

by the applicable factors of aggravating and mitigating circumstances upon which

you have been instructed.” (Italics added.)27 Correct versions of both CALJIC


(footnote continued from previous page)

a legal excuse for the crime and any sympathetic or other aspect of the defendant‟s
character or record that the defendant offers as a basis for a sentence less than
death, whether or not related to the offense for which he is on trial. You must
disregard any jury instruction given to you in the guilt or innocence phase of this
trial which conflicts with this principle.” (Italics added.) The trial court‟s mistake
appears at the outset of the foregoing instruction, in italics, and consisted of
incorrectly saying the word “may” in place of “shall.”

27

Following counsel‟s argument, the court instructed the jury with CALJIC

No. 8.88 as follows: “Ladies and gentlemen, it is now your duty to determine
which of the two penalties, death or confinement in state prison for life without
possibility of parole, shall be imposed on the defendant. [¶] You have now heard
the evidence. You have now heard the arguments of counsel. You shall consider,
take into account, and be guided by the applicable factors of aggravating and
mitigating circumstances upon which you have been instructed. [¶] An
aggravating factor is any fact, condition, or event attending the commission of the
crime which increases its guilt or enormity, or adds to its injurious consequences
which is above and beyond the elements of the crime itself. [¶] A mitigating


(footnote continued on next page)

52

No. 8.85 and CALJIC No. 8.88 were provided to the jury in written form, and

were available to resolve any confusion over the matter.

Apart from the court‟s instructions, the prosecution correctly argued to the

jury that it must consider the statutory aggravating and mitigating factors in

making the penalty decision: “There are factors that the court gave you yesterday

that you shall be instructed, have been instructed, that you have to use when you

determine what is the appropriate punishment, the greater or the lesser. The

factors that were provided by the court yesterday I have put on a chart here. . . .

[¶] These are what are called the aggravating and mitigating factors that you are

supposed to be guided by. Aggravating are the bad things; mitigating are the good



(footnote continued from previous page)

circumstance is any fact, condition or event which does not constitute a
justification or excuse for the crime in question, but may be considered as
extenuating circumstances in determining the appropriateness of the death penalty.
[¶] The weighing of the aggravating and mitigating circumstances does not mean a
mere mechanical counting of factors on each side on an imaginary scale or
arbitrary assignment of weight to any of them. You are free to assign whatever
moral or sympathetic value you deem appropriate to each and all of the factors you
are permitted to consider. [¶] In weighing the various circumstances, you must
determine under the relevant evidence which penalty is justified and appropriate
by considering the totality of the aggravating circumstances with the totality of the
mitigating circumstances. [¶] To return a judgment of death, each of you must be
persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole. [¶] You shall now retire to deliberate on the penalty. The foreperson
previously selected may preside over your deliberations or you may choose a new
foreperson. [¶] In order to make a determination of the penalty, all 12 jurors must
agree. Any verdict that you reach must be dated and signed by your foreperson on
a form that will be provided and then you shall return it to this courtroom.” When
the court earlier instructed on CALJIC No. 8.88 before closing arguments, the
second paragraph reflected what the jury‟s duty would be after having heard the
arguments of counsel, and the last two paragraphs were left out.

53

things, sympathetic things or good deeds he has done. And this list basically gives

you the law in this area. [¶] You are to consider all of the evidence that you have

been presented in this case, all of the evidence in the guilt phase, direct and cross-

examination of every witness, just as you‟re to consider everything in the penalty

phase, direct and cross-examination. [¶] Your decision is this case is to be based

upon the evidence, the testimony that you heard, not guesses, hunches, fears,

unwillingness to do the right thing.” (Italics added.)

Here, each side focused on various mitigating circumstances present in the

case, including defendant‟s lack of prior convictions, the absence of criminal

conduct for the first 33 years of defendant‟s life, the respect of women and elders

that defendant showed as a boy, defendant‟s military service, defendant‟s love for

his son Nicholas, the family members who loved defendant and pleaded for his

life, and the inconsistencies and contradictions in the evidence that potentially

raised a lingering doubt as to defendant‟s guilt. As each side reviewed the

evidence, the jury was repeatedly reminded to weigh the circumstances, both the

mitigating and the aggravating, to reach its penalty decision.

Considering the oral and written instructions as a whole, in conjunction

with the parties‟ arguments, we find there was no reasonable likelihood the jury

was led to believe it could disregard defendant‟s mitigating circumstances in

determining the appropriate penalty. (See People v. Rundle, supra, 43 Cal.4th at

p. 189; People v. Pollock (2004) 32 Cal.4th 1153, 1191-1193.)

Defendant additionally contends his federal constitutional rights were

violated because the penalty instructions, and CALJIC No. 8.85 specifically, failed

to advise which of the listed sentencing factors were aggravating, which were

mitigating, or which could be either depending on how the jury appraised the

evidence, and failed to delete inapplicable statutory mitigating factors. We have

repeatedly rejected these contentions (e.g., People v. Zamudio, supra, 43 Cal.4th at

54

pp. 372-373 [and cases cited]; People v. Farnam, supra, 28 Cal.4th at pp. 191-192

[and cases cited]), and defendant offers no persuasive reason for their

reconsideration.

Finally, defendant argues the trial court erred in failing to instruct the jury it

could not consider aggravating factors that were not enumerated in the statute. We

have consistently rejected this argument (e.g., People v. Boyer (2006) 38 Cal.4th

412, 486 [and cases cited]; People v. Taylor (2001) 26 Cal.4th 1155, 1180), and do

so again here.

5. CALJIC No. 8.88

In defendant‟s view, the slightly modified version of CALJIC No. 8.8828

used at his trial was constitutionally deficient for several reasons. We conclude

there was no substantive difference between the standard instruction and the

modified version given below, and therefore adhere to our decisions that have

rejected similar claims, as follows.

CALJIC No. 8.88 is not constitutionally flawed or impermissibly vague

because (1) it uses the phrase “so substantial” to compare aggravating factors with

the mitigating factors (People v. Parson (2008) 44 Cal.4th 332, 371 [and cases

cited]; People v. Salcido (2008) 44 Cal.4th 93, 163 [and cases cited]); (2) it uses

the term “warrants” instead of “appropriate” (People v. Page (2008) 44 Cal.4th 1,

56; People v. Harris (2008) 43 Cal.4th 1269, 1321-1322 [and cases cited]); (3) it

fails to instruct the jury that a life sentence is mandatory if the aggravating factors

do not outweigh the mitigating factors (People v. Parson, supra, at p. 371 [and

cases cited]; People v. Page, supra, at p. 57 [and cases cited]); (4) it fails to

instruct that a verdict of life in prison could be returned even if the circumstances


28

See ante, fn. 27.

55

in aggravation outweighed those in mitigation (People v. Page, supra, at p. 58

[and cases cited]; People v. Zamudio, supra, 43 Cal.4th at pp. 372-373); and (5) it

fails to instruct that neither party in a capital case bears the burden of persuasion

on the penalty determination (People v. Harris, supra, at p. 1322 [and cases cited];

People v. Zamudio, supra, at p. 372).

6. Intercase Proportionality

Defendant contends the failure to provide for intercase proportionality

review in capital cases violates his Eighth Amendment right under the federal

Constitution to be protected from the arbitrary and capricious imposition of capital

punishment. As defendant acknowledges, we have rejected this contention many

times before. (People v. Parson, supra, 44 Cal.4th at pp. 368-369 [and cases

cited]; People v. Page, supra, 44 Cal.4th at p. 61 [and cases cited].) The same

goes for the contention that the lack of intercase proportionality review violates a

capital defendant‟s Fourteenth Amendment right to equal protection of the law.

(People v. Whisenhunt (2008) 44 Cal.4th 174, 227 [and cases cited]; People v.

Page, supra, at p. 61 [and cases cited].)

7. Challenges to California’s Death Penalty Statute and Related

Instructions

Defendant raises various challenges to California‟s death penalty statute

and the jury instructions thereunder. Our prior decisions have rejected them

repeatedly, as follows.

The death penalty statute and instructions are not unconstitutional because

they fail to assign a burden of proof for finding aggravating and mitigating

circumstances, or because they do not require the state to prove beyond a

reasonable doubt that an aggravating factor exists (except for other unadjudicated

violent criminal activity), that aggravating factors outweigh the mitigating factors,

or that death is the appropriate penalty. (People v. Parson, supra, 44 Cal.4th at p.

56

370 [and cases cited]; People v. Whisenhunt, supra, 44 Cal.4th at p. 227 [and cases

cited].) Contrary to defendant‟s assertion, nothing in Apprendi v. New Jersey

(2000) 530 U.S. 466 or Ring v. Arizona (2002) 536 U.S. 584 compels otherwise.

(People v. Parson, supra, at p. 370 [and cases cited]; People v. Whisenhunt, supra,

at p. 227 [and cases cited].)

The death penalty statute and instructions are not constitutionally flawed

because they fail to require the state to bear the burden of persuasion regarding the

penalty decision. (People v. Parson, supra, 44 Cal.4th at p. 371 [and cases cited];

People v. Whisenhunt, supra, 44 Cal.4th at p. 227 [and cases cited].) Nor are they

unconstitutional for failing to require juror unanimity on the aggravating factors.

(People v. Whisenhunt, supra, at pp. 227-228 [and cases cited]; People v.

Zamudio, supra, 43 Cal.4th at p. 373.)

8. Prosecutorial Misconduct

During its penalty phase argument, the prosecution told the jury: “When

they [defense counsel] stand here and ask for sympathy, compassion, mercy for

this man, realize that he gave none, he deserves none.” Although defendant made

no objection or request for admonishment at trial, he now argues this was an

improper appeal to the jury to consider vengeance as a reason for imposing the

death penalty, thus constituting misconduct in violation of his state and federal

constitutional rights to due process, a fair jury trial, and a reliable and

individualized penalty determination.

Defendant‟s failure to object and request an admonishment forfeits review

of this claim. (People v. Benavides (2005) 35 Cal.4th 69, 108.) In any event, the

claim fails on the merits.

After properly informing the jury that “the law recognizes that the

defendant is entitled to sympathy, compassion, mercy,” the prosecution argued,

57

based on the facts, that this particular defendant did not deserve the jury‟s

compassion, sympathy, or mercy. The prosecution is not guilty of misconduct

when it attempts to persuade the jury that the defendant has not presented a case

deserving of sympathy or mercy. (People v. Zambrano, supra, 41 Cal.4th at p.

1176; People v. Vieira (2005) 35 Cal.4th 264, 296.)

9. Cumulative Error

Defendant contends that cumulative error at both the guilt and penalty

phases requires reversal. Apart from our finding that a modification of the

judgment is warranted to correct the trial court‟s erroneous imposition of a death

sentence on the second degree murder count (count two), we have rejected nearly

all of defendant‟s other claims of error, and when we have found or assumed error,

we have concluded defendant was not prejudiced. Whether we consider such

claims individually or together, we find no prejudicial error at either phase of the

proceedings.

10. International Law

Contrary to defendant‟s assertions, “[t]he California death penalty statute

does not violate international law, specifically, the International Covenant on Civil

and Political Rights, even assuming defendant has standing to invoke this

covenant. [Citations.]” (People v. Parson, supra, 44 Cal.4th at p. 372.) Where,

as here, a sentence of death complies with state and federal constitutional

requirements, international law is not violated. (People v. Cruz, supra, 44 Cal.4th

at p. 689.)

58

III. DISPOSITION

We affirm the judgment of death as modified to reflect that defendant‟s

sentence on count two is imprisonment for 15 years to life.

BAXTER, J.



WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


59

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rogers
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S064337
Date Filed: July 6, 2009
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Frederic L. Link

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Kent Barkhurst,
Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens, Maxine P. Cutler and Adrianne
S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.






Counsel who argued in Supreme Court (not intended for publication with opinion):

Kent Barkhurst
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Adrianne S. Denault
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2274

Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 07/06/200946 Cal. 4th 1136, 209 P.3d 977, 95 Cal. Rptr. 3d 652S064337Automatic Appealopinion issued

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Adrianne S. Denault, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Rogers, Ramon Jay (Appellant)
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Kent Barkhurst, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA


Disposition
Jul 6 2009Opinion: Affirmed

Dockets
Sep 10 1997Judgment of death
Sep 15 1997Filed certified copy of Judgment of Death Rendered
9-10-97.
Sep 15 1997Penal Code sections 190.6 et seq. apply to this case
Dec 9 1997Record certified for completeness
Sep 27 2001Filed:
applt's application for appointment of counsel (IFP form).
Sep 27 2001Order appointing State Public Defender filed
to represent applt for the direct appeal.
Oct 9 2001Date trial court delivered record to appellant's counsel
8.404 pp. record
Nov 9 2001Appellant's opening brief letter sent, due:
5-13-2002.
Dec 12 2001Counsel's status report received (confidential)
from State P.D.
Feb 11 2002Received:
copy of superior court order dated 2-5-2002, granting applt's application for extension of time to request correction, augmentation and settlement of the record to 6-21-2002.
Feb 15 2002Counsel's status report received (confidential)
from State P.D.
Apr 22 2002Counsel's status report received (confidential)
from State P.D.
May 9 2002Request for extension of time filed
To file AOB. (1st request)
May 14 2002Extension of time granted
To 7/12/2002 to file AOB. The court anticipates that after that date, only six further extensions totaling 360 additional days will be granted.
Jun 27 2002Counsel's status report received (confidential)
from State P.D.
Jul 15 2002Request for extension of time filed
To file AOB. (2nd request)
Jul 19 2002Extension of time granted
To 9/10/1002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Jul 23 2002Received copy of appellant's record correction motion
Motion to complete, correct and settle the record on appeal. (13 pp.)
Sep 10 2002Request for extension of time filed
To file appellant's opening brief. (3rd request)
Sep 10 2002Counsel's status report received (confidential)
from State P.D.
Sep 16 2002Extension of time granted
To 11/12/2002 to file appellant's opening brief. The court anticipates that after taht date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Nov 7 2002Request for extension of time filed
To file appellant's opening brief. (4th request)
Nov 7 2002Counsel's status report received (confidential)
from State P.D.
Nov 13 2002Extension of time granted
To 1/13/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Jan 10 2003Counsel's status report received (confidential)
from State P.D.
Jan 10 2003Request for extension of time filed
to file AOB. (5th request)
Jan 14 2003Extension of time granted
To 3/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Mar 11 2003Counsel's status report received (confidential)
from State P.D.
Mar 11 2003Request for extension of time filed
to file appellant's opening brief. (6th request)
Mar 14 2003Extension of time granted
to 5/13/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
May 12 2003Counsel's status report received (confidential)
from State P.D.
May 13 2003Request for extension of time filed
to file appellant's opening brief. (7th request)
May 16 2003Extension of time granted
to 7/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jul 9 2003Request for extension of time filed
to file AOB. (8th request)
Jul 9 2003Counsel's status report received (confidential)
from State P.D.
Jul 16 2003Extension of time granted
to 9-12-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Sep 5 2003Record on appeal filed
Clerk's transcript 26 volumes (5149 pp.) and reporter's transcript 28 volumes (3095 pp.) including material under seal; ASCII disks. Clerk's transcript includes 3451 pp. of juror quesionnaires.
Sep 12 2003Request for extension of time filed
to file appellant's opening brief. (9th requst)
Sep 12 2003Counsel's status report received (confidential)
from State P.D.
Sep 17 2003Extension of time granted
to 11/12/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 12 2003Request for extension of time filed
to file appellant's opening brief. (10th request)
Nov 12 2003Counsel's status report received (confidential)
from State P.D.
Nov 17 2003Extension of time granted
to 1/13/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 75 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ken Barkhurst's representation that he anticipates filing that brief by 3/31/2004.
Jan 13 2004Counsel's status report received (confidential)
from State P.D.
Jan 14 2004Request for extension of time filed
to file appellant's opening brief. (11th request)
Jan 16 2004Extension of time granted
to March 15, 2004 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ken Barkhust's representation that he anticipates filing that brief by May 14, 2004.
Mar 15 2004Counsel's status report received (confidential)
from State P.D.
Mar 15 2004Request for extension of time filed
to file appellant's opening brief. (12th request)
Mar 19 2004Extension of time granted
to 5/14/2004 to file appellant's opening brief. After that date, only one further extension totaling 45 additional days will be granted. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by the end of 6/2004.
May 14 2004Counsel's status report received (confidential)
from State P.D.
May 14 2004Request for extension of time filed
to file appellant's opening brief. (13th request)
May 20 2004Extension of time granted
to 6/29/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 6/29/2004. After that date, no further extension will be granted.
Jun 24 2004Request for extension of time filed
to file appellant's opening brief. (14th request)
Jun 28 2004Extension of time granted
to 7/29/2004 to file apellant's opening brief. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 7/29/2004. After that date, no further extension will be granted.
Jul 29 2004Request for extension of time filed
to file AOB. (15th request)
Aug 2 2004Counsel's status report received (confidential)
from State P.D.
Aug 5 2004Extension of time granted
to 8/12/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by 8/12/2004. After that date, no further extension will be granted.
Aug 13 2004Appellant's opening brief filed
(56,105 words - 201 pp.; perm.)
Sep 16 2004Respondent's brief letter sent; due:
January 14, 2005.
Dec 7 2004Request for extension of time filed
to file respondent's brief. (1st request)
Dec 10 2004Extension of time granted
to 3/15/2005 to file respondent's brief.
Mar 4 2005Request for extension of time filed
to file respondent's brief. (2nd request)
Mar 15 2005Extension of time granted
to 5/16/2005 to file respondent's brief. After that date, only two further extensions totaling about 135 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by 9/30/2005.
May 6 2005Request for extension of time filed
to file respondent's brief. (3rd request)
May 12 2005Extension of time granted
to 7-15-2005 to file respondent's brief. After that date, only one further extension totaling about 75 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing the brief by 9-30-2005.
Jul 8 2005Request for extension of time filed
to file respondent's brief. (4th request)
Jul 14 2005Extension of time granted
to 9/13/2005 to file respondent's brief. After that date, only two further extensions totaling about 140 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by 1/31/2006.
Sep 2 2005Request for extension of time filed
to file respondent's brief. (5th request)
Sep 13 2005Extension of time granted
to 11/14/2005 to file respondent's brief. After that date, only one further extension totaling about 80 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by 1/31/2006.
Nov 4 2005Request for extension of time filed
to file respondent's brief. (6th request)
Nov 8 2005Extension of time granted
to 1-11-2006 to file the respondent's brief. After that date, only one further extension totaling about 20 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing the respondent's brief by 1-31-2006.
Dec 12 2005Request for extension of time filed
to file respondent's brief. (7th request )
Dec 16 2005Extension of time granted
to 3/13/2006 to file respondent's brief. After that date, only two further extensions totaling about 80 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by 5/31/2006.
Mar 9 2006Request for extension of time filed
to file respondent's brief. (8th request)
Mar 16 2006Extension of time granted
to May 12, 2006 to file respondent's brief. After that date, only one further extension totaling about 20 additional days will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by May 31, 2006.
May 1 2006Request for extension of time filed
to file respondent's brief. (9th request)
May 4 2006Extension of time granted
to May 31, 2006 to file the respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticpates filing that brief by May 31, 2006.
May 24 2006Request for extension of time filed
to file respondent's brief. (10th request)
Jun 2 2006Extension of time granted
to June 15, 2006 to file the respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Maxine P. Cutler's representation that she anticipates filing that brief by June 15, 2006.
Jun 15 2006Respondent's brief filed
(55,831 words; 179 pp.)
Jun 15 2006Note:
Appellant's Reply Brief due; August 14, 2006.
Aug 11 2006Request for extension of time filed
to file appellant's reply brief. (1st request)
Aug 15 2006Extension of time granted
to October 13, 2006 to file appellant's reply brief.
Oct 13 2006Request for extension of time filed
to file appellant's reply brief. (2nd request)
Oct 19 2006Extension of time granted
to December 12, 2006 to file the appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by February 12, 2007.
Dec 13 2006Request for extension of time filed
to file appellant's reply brief. (3rd request)
Dec 19 2006Extension of time granted
to February 13, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by February 13, 2007.
Feb 9 2007Request for extension of time filed
to file appellant's reply brief. (4th request)
Feb 15 2007Extension of time granted
to April 16, 2007 to file appellant's reply brief. Extension is granted based upon Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by April 16, 2007. After that date, no further extension is contemplated.
Apr 11 2007Request for extension of time filed
to file appellant's reply brief. (5th request)
Apr 13 2007Extension of time granted
to May 16, 2007 to file appellant's opening. Extension is granted based upon Supervising Deputy State Public Defender Kent Barkhurst's representation that he anticipates filing that brief by May 16, 2007. After that date, no further extension will be granted.
May 16 2007Appellant's reply brief filed
(11,044 words; 50 pp.)
Mar 10 2009Exhibit(s) lodged
Court exhibits nos. 6, 9, 10, 15, 18, 43, 44, 68, 78, 96, 97, 98, 99, 100, and 101.
Mar 10 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the May calendars, to be held the week of May 4 and the week of May 25, 2009, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Apr 1 2009Case ordered on calendar
to be argued Wednesday, May 6, 2009, at 1:30 p.m., in San Francisco
Apr 3 2009Received:
appearance sheet from Deputy Public Defender Kent Barkhurst, indicating 45 minutes for oral argument for appellant.
Apr 3 2009Filed:
appellant's focus issues letter, dated April 3, 2009.
Apr 8 2009Filed:
amended declaration of service for appellant's focus issues letter filed April 3, 2009.
Apr 9 2009Filed:
repondent's focus issues letter, dated April 8, 2009.
Apr 9 2009Received:
appearance sheet from Deputy Attorney General Adrianne S. Denault, indicating 30 minutes for oral argument for respondent.
May 1 2009Received:
appellant's additional authorities letter, dated May 1, 2009.
May 6 2009Cause argued and submitted
Jul 2 2009Notice of forthcoming opinion posted
Jul 6 2009Opinion filed: Judgment affirmed in full
We affirm the judgment of death as modified to reflect that defendant's sentence on count two is imprisonment for 15 years to life. opinion by Baxter, J -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jul 21 2009Rehearing petition filed
by appellant. (2,723 words; 13 pp.)
Jul 24 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including October 5, 2009 or the date upon which rehearing is either granted or denied, whichever occurs first.

Briefs
Aug 13 2004Appellant's opening brief filed
(56,105 words - 201 pp.; perm.)
Jun 15 2006Respondent's brief filed
(55,831 words; 179 pp.)
May 16 2007Appellant's reply brief filed
(11,044 words; 50 pp.)
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