Citation 43 Cal.4th 76 original opinion
43 Cal.4th 705a modification
People v. Rundle
Filed 4/3/08
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S012943
v.
DAVID ALLEN RUNDLE,
Placer
County
Defendant and Appellant.
Super. Ct. No. 0636
A jury convicted defendant David Allen Rundle of the first degree murders
of Caroline Garcia and Lanciann Sorensen, and of attempting to forcibly rape
them. (Pen. Code, §§ 187, 261, subd. (a)(2), 664.)1 It found true the special
circumstances that defendant was convicted of multiple murders in this
proceeding, and that defendant committed the murders in the course of attempting
to rape the victims. (§ 190.2, subd. (a)(3), (17).) After the penalty phase of the
trial, the jury returned a verdict of death. The trial court denied the automatic
motion to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
death.2 This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in
its entirety.
I. FACTS
A. Introduction
In November of 1986, the bodies of two young women, Caroline Garcia,
18 years of age, and Lanciann Sorensen, 15 years of age, were found in rural areas
of Placer County. The bodies were unclothed and the arms of both victims were
bound tightly behind their backs. Both bodies were badly decomposed, such that
the causes of death could not be authoritatively established, nor was there
definitive remaining evidence that the victims had been sexually assaulted.
Despite his earlier denials of any involvement in the murders, defendant, who was
21 years of age at the time, confessed to the authorities that he had sexual relations
with the victims and killed them by strangulation. At trial, defendant testified he
had killed the women in fits of rage induced by the victims’ behavior, but did not
decide to engage in sexual activities with them until after they were dead. The
evidence presented by the defense suggested that defendant’s rage was the result
of psychological problems arising from the incestuous sexual abuse inflicted upon
him as a child by his mother, his mother’s extensive history of engaging in other
inappropriate sexual behavior (such as exhibitionism and having numerous
extramarital affairs) which was common knowledge in the small towns where
defendant and his family resided, and the general difficulties defendant had with
his family.
2
Defendant was sentenced to four years’ imprisonment for the attempted
rape of Garcia and one year, to run consecutively, for the attempted rape of
Sorensen. The trial court ordered that this five-year sentence be served forthwith.
2
The jury deliberated for less than a full court day before returning guilty
verdicts and true findings on all charges and allegations.
At the penalty phase, the prosecution presented evidence of an earlier
similar murder of a third woman in Sacramento, whose body was found unclothed
in a wooded area near the Sacramento River with her arms tied behind her back,
and who had been raped and strangled to death. Defendant confessed to this
murder during the investigation of the Garcia and Sorensen killings. The evidence
also established that defendant committed three sexual assaults against other
children when he was 14 years of age, for which he was subjected to juvenile
delinquency proceedings. Defendant’s ex-wife testified that he physically and
sexually abused her during their marriage. The defense presented further evidence
of defendant’s mental state, his family and employment background, and his good
behavior while incarcerated following his arrest for the charged offenses.
The jury deliberated further for less than a full court day before returning a
verdict of death.
B. Guilt Phase
1. Prosecution Evidence
At approximately 3:00 p.m. on Sunday, September 7, 1986, Caroline
Garcia left her home in Roseville. She planned to go to the bus station to take a
bus to Colfax, where she planned to visit her husband Trinidad Garcia, from
whom she was separated. She was wearing a black skirt and a red jacket.
Trinidad saw Caroline at a park in Colfax sometime near 9:00 p.m. She told him
she was going to the house of Chris Paoli, a friend who lived in Colfax. She also
called Kim Manzano, who lived with Garcia in Roseville, and told Manzano she
was going to Paoli’s house and was planning to take a bus back to Roseville that
night and would be home at approximately 1:00 a.m.
3
After arriving at Paoli’s house, Garcia told him a drunk man had bothered
her earlier that evening, but another person had intervened on her behalf. She said
she expected that person to come to Paoli’s house to drive her back to the bus
station. At approximately 10:45 p.m., defendant arrived in his car and Garcia left
with him.
No one, other than defendant, reported seeing Garcia alive again.
On Monday, September 8, 1986, the day after Garcia disappeared, a
motorist reported finding discarded clothing near a turnout on Interstate Highway
80 between Weimar Cross Road and Colfax. A California Highway Patrol officer
responded to the scene and found a dark-colored denim skirt, a pair of black and
purple women’s panties, and a blue and white striped blanket that appeared to
have a spot of blood and mucus on it. The area later was searched, but no other
item of significance was found.
On September 16, 1986, another motorist reported finding a red blazer, a
purse, and a wallet containing Garcia’s identification near a railroad crossing on
Carpenter Road, a secluded area approximately two miles from Chris Paoli’s
house in Colfax and six miles by road from where the skirt, underwear, and
blanket had been found. Inside the purse was a bus ticket issued on September 7,
1986, for travel from Colfax to Roseville, a pipe commonly used to smoke
marijuana, and an unopened package containing a condom. An extensive search
of the area the next day failed to disclose any other evidence.
At trial, Manzano testified that on September 7, 1986, Garcia was wearing
the skirt, blouse, and jacket that were found. Manzano also identified the purse as
the one Garcia took with her that day, and the panties as a pair Garcia had
purchased the day before when she and Manzano were shopping. Defendant’s
mother testified she had given defendant the blanket in May 1986 and that it did
not have any red stains on it when she gave it to him.
4
Criminalist James Streeter examined the clothes and the blanket. He
testified the clothing did not appear to be ripped or torn in any way, and was not
stained with blood or any other bodily fluid. The blanket showed several
bloodstained areas, in which there was a mixture of blood and a mucous material,
most likely saliva, but no semen or seminal fluid. Based upon a comparison of the
blood on the blanket and blood samples from Garcia’s parents, it was determined
that the blood on the blanket was consistent with Garcia’s blood type.
In September 1986, defendant was employed as a general laborer by
George Willson, a carpenter. The work involved physical labor, and defendant
was strong for his size. Defendant did not show up for work on September 8 or 9,
the days following Garcia’s disappearance.
On September 8, 1986, defendant told his ex-girlfriend Heather Smith that
the authorities had been speaking with him about Garcia, and that they appeared to
believe he had killed her. On the following day, defendant told his friend James
Sciacca that he (defendant) was the number one suspect in Garcia’s disappearance
because he was the last person seen with her. Defendant also had a chance
meeting with Trinidad Garcia in Colfax on that day. Defendant mentioned he had
given her a ride to the bus station the night she had disappeared. Trinidad insisted
defendant go to the police to make a report, which defendant did. Defendant told
the officers he had given Caroline Garcia a ride to the bus station, and had dropped
her off after she declined his offer to wait with her. Defendant also said that on
the way to the station they had seen the drunk man who had harassed Garcia
earlier that day, but Garcia said she would go to the nearby gas station if there was
any trouble.
Several days after Garcia’s disappearance, defendant and Sciacca went to a
carwash, where defendant cleaned and vacuumed the interior of defendant’s car.
5
Defendant had two more interviews with the authorities, on September 11
and October 21, 1986, during which he provided essentially the same statement of
events as above, except for adding that on the way to the bus station, they had
stopped and smoked a small amount of marijuana Garcia had with her, and that
defendant had asked Garcia to have coffee with him but she declined. Defendant
denied he had anything to do with Garcia’s disappearance or had given her his
blanket, and maintained he returned to the trailer where he was staying after
dropping Garcia off that night. Defendant said a person named Bob who was
staying at the trailer could verify that defendant had returned there that night, but
defendant could not find Bob. He also told the officers “things had heated up” for
him in Colfax because people thought he was involved in Garcia’s disappearance,
and therefore he was avoiding the Colfax area.
On September 15 or 16, 1986, Willson mentioned to defendant he had seen
a search party looking for the “missing girl.” Defendant told Willson the
authorities would not find anything, because they were “stupid,” adding they no
longer were interested in him as a suspect in Garcia’s disappearance because
someone else had been seen with her at the bus station and officers had found
blood at her husband’s apartment. Defendant also said Garcia was a “slut” and a
“sleep around,” as were most of the girls in Colfax.
On the evening of Thursday, October 10, 1986, Lanciann Sorensen and her
friend Laura Yowell were at a friend’s house in Roseville, where they each
consumed a beer. Later, they went to Yowell’s sister’s house, also in Roseville.
Sorensen left alone sometime between 9:00 and 10:00 p.m., stating she was
planning to hitchhike back to her mother’s house in Auburn. At approximately
10:00 p.m., Sorensen called her boyfriend, Matthew Sklansky, and said she was in
a telephone booth near the freeway in Loomis. Sorensen sounded intoxicated, and
told Sklansky she had been drinking alcohol and smoking marijuana. She said she
6
was with a person she met that day named Dave, who lived in Colfax and with
whom she had been hitchhiking. Sklansky had told Sorensen he wanted to see her
that night, and Sorensen agreed to come to his house when she arrived back in
Auburn, but also told him they could not have sexual intercourse because she was
menstruating. Sorensen and Sklansky twice before had engaged in sexual
intercourse together. Their conversation ended when Sorensen said she should go
because Dave was bored. Sorensen also called her mother at approximately
10:15 p.m. and said she was making her way home.
No one reported talking to or seeing Sorensen alive after this telephone call.
Her mother reported her missing on Monday, October 13, 1986.
In mid-October Willson observed that defendant was not his usual energetic
and well-groomed self. Eventually, on October 17, 1986, Willson noticed
defendant was distracted and unable to complete a simple project. Defendant told
Willson that “Violence is golden.” Willson sent defendant home for the day, and
defendant did not work for Willson again, despite a well-paying assignment that
was to start soon thereafter.
At the October 21, 1986 interview, defendant also was asked about
Sorensen’s disappearance. He denied ever having met her, stating he had worked
in Roseville on October 10, the day Sorensen disappeared, and had spent the
evening in Colfax with a friend. Sciacca testified, however, that he had breakfast
with defendant on October 11, 1986, and defendant told him that the previous day
he had traveled to Sacramento where he had sexual relations with a prostitute, and
then hitchhiked back, receiving a ride from a newspaper delivery man.
After the interview on October 21, 1986, Sciacca drove defendant to Reno,
Nevada. Defendant told Sciacca he had spoken to the officers earlier that day
about Garcia’s disappearance, and asked Sciacca whether he knew how defendant
could secure identification in order to assume a new identity.
7
On November 7, 1986, a motorist traveling on Interstate Highway 80
stopped at the Loomis exit to let his dog out and saw what appeared to be a human
body in a culvert off the road. Because he was afraid, the motorist waited several
days to report the sighting, and thereafter, on November 14, 1986, officers went to
that location and found Sorensen’s body mostly covered with dirt and weeds in a
culvert approximately six feet below the level of the road. Her body was
completely nude, and her hands were tied behind her back with a pair of pants.
The officers also found a blouse and a purse in the area. Sorensen’s mother
identified the pants, blouse, and purse as belonging to Sorensen.
The pathologist who conducted the autopsy testified Sorensen was slightly
over five feet tall and weighed approximately 110 pounds. Because of the
advanced decomposition of her body, the pathologist was unable to determine
conclusively the cause of death, although a likely cause, in his opinion, was
asphyxiation, secondary to strangulation, based upon hemorrhages and damage to
muscle and cartilage in the neck area. The decomposition also prevented the
pathologist from rendering an opinion whether Sorensen had been raped or
whether sperm or other foreign bodily fluids might have been present at the time
of her death.
The authorities obtained a warrant for defendant’s arrest for the murder of
Garcia. On November 20, 1986, after defendant was arrested in Carson City,
Nevada, two officers traveled there and interviewed him at the jail. After being
advised of and waiving his Miranda rights,3 defendant admitted killing Garcia and
3
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The term “Miranda
rights” refers to the now ubiquitous advisement of the defendant’s right to remain
silent, that anything he or she does say may be admitted at trial, and of the right to
have an attorney present and to have an attorney appointed if the defendant is
indigent. (Id. at p. 479.)
8
having sexual relations with her at the location where he strangled her. He drew a
map marking where her body was left. He denied any involvement in the
Sorensen killing, however. Defendant said he was “loaded” on “acid”4 during the
last 30 days he was in Colfax, including the night Garcia was killed.
The area depicted on defendant’s map was searched on November 21,
1986. Garcia’s unclothed body was found draped around a tree approximately 30
to 40 feet from the road down a very steep incline, partially covered with dirt,
rocks and debris, and badly decomposed and largely skeletonized. There was a
red cloth tied around her mouth, and her arms were tied behind her back with a
piece of wire looped around both wrists and tied with five knots. No other
evidence was found in the area. As with Sorensen’s body, the advanced state of
decomposition prevented the pathologist who performed the autopsy from
determining the cause of Garcia’s death, or whether trauma from a sexual assault
had occurred. The pathologist did conclude, however, that the evidence supported
the opinion that Garcia’s death had been violent and had been caused by another
person.
As defendant returned with the officers to the Placer County Jail in Auburn
that day, he provided them with more details concerning the murder of Garcia.
Defendant related the following. He ingested LSD before picking up Garcia, and
then smoked some marijuana with her. He and Garcia were kissing in the
backseat of his car, which was covered with the blue and white striped blanket, but
when defendant placed his hand on Garcia’s leg, she said “No,” which led to an
argument between them about having sexual relations. When defendant asked
Garcia whether she wanted to have sex, she declined because she thought he was
4
Defendant’s reference presumably was to lysergic acid diethylamide (LSD).
9
“all fucked up.” Defendant “flipped out,” “partly” because of this rejection, and
pushed Garcia down and had sex with her. Garcia “partly” resisted by squirming.
Defendant said he thought he ejaculated, but was not sure. He did not remember
having tied her hands. Afterward, defendant became fearful that Garcia would tell
others about what had happened, so he decided to kill her. Garcia started fighting,
and defendant again pushed her down, grabbed a piece of wire, wrapped it around
her neck, and held it there until she stopped moving. Defendant stated he
remembered rolling Garcia’s body down a hill, but did not recall anything else.
Despite his earlier denials, defendant also admitted during the drive to
Auburn that he killed Sorensen, providing the following details. He had met
Sorensen at a mall earlier that day. Defendant had ingested LSD and was “really
stoned.” Defendant killed Sorensen by strangling her “by a road.” He said, “It
was all so fuzzy.” When asked whether he had sexual relations with Sorensen,
defendant said, “I think so.” He stated he did not remember tying her hands, or
exactly how he had returned to Colfax that night, although he remembered
delivering newspapers along the way.
After arriving at the jail in Auburn and having dinner, defendant was
interviewed by the authorities again, providing more details of the murder of
Sorensen. Defendant said he and Sorensen were hitchhiking and were dropped off
at the Loomis exit. Sorensen walked into town, returned about an hour later, and
they then smoked marijuana together. Defendant began thinking about his
difficulties with his family and became enraged. Sorensen thought defendant was
“freaking out,” which made defendant more angry. He placed his hands on her
shoulders and Sorensen swung at him, at which point defendant “blew up.”
Defendant said he did not remember much after that point, but knew he engaged in
sexual relations with Sorensen at some point, and ultimately strangled her because
10
he was frightened. He also remembered covering the body with weeds and
throwing away Sorensen’s purse before leaving the scene.
Teresa Jackson testified she introduced defendant to Garcia in July of 1986.
According to the testimony of James Sciacca and Janet Spafford, defendant on
several occasions prior to September 7, 1986, had asked Garcia out for a date, but
Garcia had declined, once commenting that she thought defendant was “strange”
or “weird.”
Teresa Jackson, Janet Spafford, and Heather Smith, all former girlfriends of
defendant, testified they had seen defendant smoke marijuana, but never had seen
him ingest LSD. George Willson testified that in July or August of 1986, when he
and defendant were conversing about drug use, defendant said he did not consume
LSD. James Sciacca testified, however, that defendant once ingested LSD in his
presence.
Heather Smith visited defendant on several occasions in the Placer County
jail after his arrest. During her last visit, Smith asked defendant why he killed
Garcia and Sorensen. He said it was partly because he did not like “sleazy
women.” He then said, “I had a good thing going while it lasted. Too bad I got
caught.” Smith asked defendant why he had not killed her, and defendant replied
he had no reason to kill her. Spafford testified that Smith told her defendant had
said the reason he had not killed Smith or Spafford was because they had “said
yes.”
2. Defense Evidence
Defendant testified as follows: He met Garcia in June or July 1986, and
they became friends. They twice went to Rollins Lake and smoked marijuana
together, and once defendant invited Garcia to spend the night at the house where
he was staying because she had no place to sleep. Defendant and Garcia never had
11
sexual intercourse on these occasions, although they engaged in “deep kissing”
during their visits to the lake. Garcia at that time did not want to be sexually
involved with defendant or other men, because she was still in the process of
divorcing Trinidad Garcia.
Contrary to what defendant confessed to the authorities, he testified very
clearly remembering what happened on the nights he killed Garcia and Sorensen.
After defendant picked up Garcia from Chris Paoli’s house on the night of
September 7, 1986, Garcia inquired whether he had any marijuana. To avoid
being detected, they went to the remote location of Carpenter’s Flat, parked,
smoked marijuana, and talked. Garcia mentioned that her bus left at midnight. As
Garcia began to speak about her difficulties with her husband Trinidad, defendant
became annoyed because he felt Garcia was nagging and overdramatizing her
problems. Defendant began talking about his problems with his own family, but
Garcia did not adequately recognize the seriousness of defendant’s troubles, which
led to a heated discussion. After things calmed down, the two kissed for about 10
minutes. At some point, Garcia pulled away from defendant and again started
talking about her problems with Trinidad. She said, “I can’t do this because of
Trino.” They began to argue again about the relative seriousness of their personal
difficulties, and Garcia again belittled defendant’s problems by stating they “don’t
mean nothing,” telling him he “should just sit there and listen to her and keep [his]
mouth shut.” This made defendant very angry and he, in rapid succession,
punched Garcia in the face with his fist, lowered the back of the front seat in
which she was sitting and pushed her into the backseat of his car. At some point
during these actions, Garcia said what had happened was all defendant’s fault. As
Garcia was facedown in the backseat, defendant climbed on top of her, found a
piece of wire on the floor of the car, wrapped the wire around Garcia’s neck, and
12
strangled her. Defendant intended to kill Garcia when he put the wire around her
neck, but at that point had no intention of having sexual relations with her.
After a minute or two had passed and Garcia stopped struggling, defendant
released the wire and sat back on the seat. Approximately five to 10 minutes later,
he became sexually aroused and began undressing Garcia’s body. Defendant
testified on direct examination that while he was doing so, he heard a gurgling
sound and saw a bloody substance coming from Garcia’s mouth. He tied the red
cloth around her head over her mouth to stop the blood, and then continued
undressing her. He was still fully clothed, but 15 to 20 minutes later, he undressed
and engaged in sexual activities with Garcia’s body. On cross-examination,
defendant testified he already had fully undressed Garcia’s body and himself and
was engaged in sodomizing the body when he heard the gurgling sound, saw the
blood, and placed the red cloth over her mouth.
When the blood came out of Garcia’s mouth, defendant stopped
sodomizing the body, but continued again several minutes later after the bleeding
ended. He eventually had an orgasm. About five to 10 minutes later, after again
becoming aroused, he turned the body over and had vaginal intercourse until he
had another orgasm. While defendant was having sexual relations with Garcia’s
body, he tied her arms behind her back.
When he finished, defendant dressed, got out of the car briefly, then
returned to the car, threw Garcia’s purse and jacket out the window, and drove
away. Defendant drove around Colfax for approximately an hour and a half,
during which time he went to his parents’ house, parked in the driveway and
honked the horn, and also repeatedly drove past the Colfax police station — all
while Garcia’s body was lying uncovered in the backseat of the vehicle.
Defendant eventually disposed of Garcia’s body by throwing it down an
embankment adjacent to a remote road, and rolled up Garcia’s clothes in the
13
blanket and threw them from his car while en route to the nearby town of Weimar.
Defendant did not know why he discarded the various items at different locations.
The next day, defendant returned to the location where he had discarded the
body, but could not find it. Defendant proceeded there again on the following day,
found the body, and pulled it up to the tree. He sat next to the body, thinking and
talking to himself and to the body about his remorse at what had happened, how he
hated his mother, and how Garcia’s actions had reminded him of his mother.
Defendant returned to the body several times. After his last visit, defendant
covered it with a piece of wood, rocks, and leaves.
On October 10, 1986, defendant hitchhiked to Sacramento. He ingested
LSD during the trip, and smoked marijuana and consumed alcohol while there.
He engaged in sexual activities with two prostitutes and then began hitchhiking
back to Colfax at approximately 7:30 p.m. He met Sorensen at a restaurant near
the highway on Douglas Boulevard, when she approached and asked him to light
her cigarette. They decided to hitchhike together. After about 30 minutes, they
got a ride, which took them to the Horseshoe Bar Road exit in Loomis. They
arrived there about 10:00 p.m., and walked into town because Sorensen needed to
make some telephone calls. After she did so, they returned to the freeway exit and
smoked marijuana. Sorensen then left to walk back to town to make another
phone call. When she returned, they moved off to the side of the road because the
weather was cold, smoked more marijuana, and conversed. Sorensen said she
thought defendant was cute, and later started “getting real friendly” toward him by
inviting him to spend the night in the trailer behind her mother’s house in Auburn
and sitting very close to him or on his lap. He, however, was not interested in
engaging in sexual relations, because he already had been with the two prostitutes
earlier that day and was, in fact, feeling guilty about those earlier activities.
14
At some point, while defendant was lying on his side on the ground and
Sorensen was next to him, she reached over and unbuttoned his pants, reached
inside his underwear, grabbed his penis, and moved her head toward him in an
attempt to orally copulate him. Defendant became infuriated because he did not
want to be touched, and jumped up, grabbing Sorensen by the neck in the process.
He held her off the ground, spun her around while shaking her violently, and then
threw her down. When she did not move, defendant knew she was dead. He was
not thinking clearly when he killed Sorensen; he was very angry because of her
unexpected and unwelcome sexual advance.
After realizing Sorensen was dead, defendant stomped around the area for
several minutes and punched a nearby fence. He then returned to the body and sat
down next to it for approximately 10 minutes. Defendant thought about the Garcia
incident and became sexually aroused. He undressed himself as well as
Sorenson’s body, and sodomized and had vaginal intercourse with the body.
During a second act of sodomy, defendant tied Sorensen’s arms behind her back
with her pants. After having an orgasm, he moved the body 15 to 20 feet away,
covered it with grass and weeds, and left.
The sexual activities defendant engaged in with Garcia’s and Sorensen’s
bodies were more exciting than any prior sexual encounters he had ever had,
because he had complete control of the victims. The act of tying the victims’
hands behind their back, even though they already were dead, was thrilling to him
and was brought on by (and heightened) his feeling of total control over the two
women.
Defendant testified that when he was eight or nine years of age and residing
with his family in Charleston, South Carolina, his mother began sexually
molesting him. The molestation continued while the family resided in Idaho Falls,
Idaho, and St. Mary’s, Georgia, when defendant was a teenager. The sexual abuse
15
was frequent, especially in Idaho, and involved various types of sexual acts,
including oral copulation and sexual intercourse.
Defendant also saw his mother having sexual intercourse with a 17-year-old
neighbor in South Carolina, Ron K., and learned she had exposed her naked body
to, and had sexual relations with, other men who visited the family home or were
crew members on trains that passed behind the family’s house in Georgia. This
behavior occurred in each of the towns in which the family resided, and continued
in Colfax until close to the time of the Garcia and Sorensen killings.
Defendant’s mother also was present one night when Ron K. tied a rope to
a rafter, placed the rope around defendant’s neck, and kicked away the chair upon
which defendant was standing. Defendant hanged by his neck for 10 to 12
seconds before Ron K. removed the rope. Defendant’s mother laughed while
defendant was hanging.
After one final incident of molestation in Georgia when defendant was 15
years of age, he refused to participate further and began to stay away from home.
Defendant’s absences caused problems with defendant’s father, who believed
defendant merely was being rebellious. Defendant, however, felt he could not tell
his father why he was avoiding home. When defendant was 16 years of age, he
left home permanently after a severe argument with his father about defendant’s
behavior.
Defendant moved often during the next year, eventually coming to Colfax.
Thereafter, defendant’s family, which included defendant’s two younger brothers
and a younger sister, also moved to Colfax, causing more problems because
defendant’s parents did not want him residing near them. Defendant was not
welcome in their home, and his parents spread rumors about him to make his life
in Colfax difficult. They twice paid him to move away, which he did, although he
returned in May 1986 and decided to remain there despite his difficulties.
16
Defendant testified his mother’s molestation of him caused him to feel
angry and defenseless. He also later became confused when he reached sexual
maturity and sometimes felt pleasure during the sexual activities he engaged in
with his mother. His mother’s exhibitionism and her affairs with Ron K. and other
men, which were widely known by other persons in the several communities in
which they resided, angered and embarrassed defendant, especially when his
friends or others mentioned the subject to him.
Defendant denied having said anything to Heather Smith about the killings
or about having “had a good thing going while it lasted.” He admitted he had lied
to numerous persons, including the authorities, when he first denied having
anything to do with the deaths of Garcia and Sorensen. He explained his later
confessions had some elements of truth, but that he lied when he stated that Garcia
was alive and resisting when he had sex with her and lied when he stated he killed
her and Sorensen because he was frightened. He did not tell the authorities he had
had sex with the bodies only after the women were dead, because this was
embarrassing and he believed it would appear worse if he admitted what happened
rather than relating that he had raped the victims while they were alive. He also
did not want to discuss the incestuous relationship he had with his mother.
Defendant asserted that he believed he simply could admit having killed the
women, and that would end the questioning. When the officers continued to press
him for details, he gave false answers because he wanted the questioning to
stop — but he also acknowledged voluntarily speaking with the officers and being
advised he could stop the interviews at any point, and that they in fact had honored
defendant’s request to stop on one occasion when he complained of a headache.
Defendant testified that he decided to tell the truth at trial because he had learned
from a defense investigator that defendant’s younger brother had legal problems
relating to a sexual incident, and defendant did not want his brother to be in
17
defendant’s position at some point in the future. Defendant, however, admitted
learning before giving his testimony at trial that it might benefit his defense if he
were to testify he had not intended to have sex with the victims until after he had
killed them.
Philip Bodily, who resided near defendant from 1975 to 1977 in South
Carolina, testified that he, too, observed defendant’s mother having sex with
Ron K. He never saw defendant’s mother engage in sexual behavior with
defendant, but testified she did act in a sexually provocative manner toward
Bodily on two occasions and Ron K. teased defendant about his mother’s sexual
activities.
The parties stipulated that James and Sara Jo Ennis were defendant’s
neighbors when his family resided in Georgia, and would testify that defendant’s
mother often stood nude at the rear door of the house and sometimes would open
and close her blouse while trains were passing on the tracks behind the house, but
they did not see her board any of the trains.
Jeffrey Miner and Ronald Ballard testified that on approximately five or 10
occasions over a two-month period in 1985, a woman standing at a window in
defendant’s grandfather’s house in Colfax exposed her breasts by lifting up her
shirt as Miner and Ballard drove by on the road in front of the house. Once, the
woman exposed herself to Miner as he drove by, and then about 15 to 20 minutes
later Miner and Ballard drove on a dirt road approximately 50 yards behind the
house in order to avoid seeing the woman, but she came out on the road and again
exposed herself. Scott Greger also saw a woman at that house exposing herself on
numerous occasions during the four months he resided on the same street. Greger
later learned the woman was defendant’s mother and he told defendant of this
activity, but defendant appeared unconcerned.
18
Dr. Richard Yarvis, a psychiatrist employed by the defense, had treated
victims of incest and molestation. He met with defendant for a total of
approximately 20 hours. According to Dr. Yarvis, boys who are victims of incest
committed by their mothers are more likely to become psychotic than girls who
have incestuous relationships with their fathers. Both types of victimization,
however, have “disastrous” impacts upon the victims. Victims of parental incest
often have significant feelings of guilt, despondency, anxiety, and anger created by
their powerlessness at being compelled by a parent to engage in behavior that the
victim knows is wrong. Dr. Yarvis considered it very unlikely that a victim of
parental incest would be “normal” in the psychological sense. Rather, the three
likely outcomes were severe psychosis, in which the victim would be unable to
distinguish reality from fantasy; less severe mental illnesses, such as chronic
depression and drug and alcohol abuse; and antisocial behavior, such as criminal
activity and sexual promiscuity.
During their meetings, defendant described to Dr. Yarvis an unpleasant
childhood in which his father, who was in the Navy, was mostly absent and was
often physically abusive to defendant when he was home. Defendant told Dr.
Yarvis that his mother was sexually provocative, promiscuous, and an
exhibitionist, and carried on an incestuous relationship with defendant for several
years. Although Dr. Yarvis did not believe defendant was psychotic, defendant
exhibited low self-esteem and nervousness at close physical proximity to others,
and had a serious temper with a “short fuse.” Defendant unreasonably interpreted
a remark made by Dr. Yarvis during an interview, and on another occasion
defendant fell out of his chair and became so angry, distressed, and embarrassed
that Dr. Yarvis became mildly frightened that defendant might become violent.
Dr. Yarvis testified it is rare for a woman to be an exhibitionist, and that
exhibitionists rarely commit more active sexual crimes. He also stated that
19
necrophilia, or sexual activity with dead bodies, is quite abnormal and rare, and he
had no clinical or research experience in that area.
Defendant re-called his mother as a witness for the defense. She denied,
however, that she had an incestuous relationship with defendant, that she had
sexual relations with Ron K. or any train crew members, and that defendant had
been subjected to a hanging in her presence. She denied ever having intentionally
exposed her body to anyone at any of the places in which she had resided. She
said defendant had been a liar since he was a young child, and had left the family
home because he would not follow the rules, rather than because of any incestuous
relationship with her.
3. Prosecution Rebuttal Evidence
The prosecution re-called the lead investigating officer, who testified that
photographs of defendant’s vehicle showed that the lever that would lower the
back of the driver’s seat was on the outside of the seat, near the door. The officer
did not photograph or examine the lever for the front passenger seat, and did not
know whether the front seats would fully recline.
C. Penalty Phase
1. Prosecution Evidence
a. Murder of Elizabeth Lactawen
After defendant was arrested, officers from the Sacramento County
Sheriff’s Department interviewed him concerning a series of other homicides in
the Sacramento area. During the first interview, defendant waived his Miranda
rights and denied involvement in any other murders. During a second interview,
defendant continued to deny any role in the murders the officers were
investigating, but confessed to another murder that had occurred in the City of
Sacramento. Investigators from the Sacramento Police Department were
20
summoned and interviewed defendant for a third time regarding the murder of
Elizabeth Lactawen.
On May 10, 1986, a homeless man reported finding a dead body near the
Sacramento River in an area overgrown with vegetation and known as a homeless
encampment. Responding police officers found a woman’s body, mostly covered
by plastic and cardboard. The unclothed body of Elizabeth Lactawen was not yet
cold to the touch. Lactawen was 24 years of age, was four feet five inches tall,
and weighed 76 pounds. A cloth gag was tied around her mouth, and her arms
were tied behind her back with an electrical cord. There were bruises around her
neck and left breast, and blood and other fluids coming out of her nose. The
pathologist who performed the autopsy believed Lactawen had been strangled with
a thin rope or wire.
There also was evidence of sexual assault, including blood clots in the
vagina and on the cervix and bruising on Lactawen’s inner thighs, injuries which
in the pathologist’s opinion could have been caused by someone forcibly
spreading open her legs and raping her. The bruises were inflicted before she
died. Clothes matching Lactawen’s small stature were scattered around the area.
There also was fecal matter in the pubic area, which possibly was caused by a
person sodomizing Lactawen before having vaginal intercourse with her. There
was no tearing of the vagina or anus or evidence of sperm. Lactawen had no
alcohol or drugs in her blood.
During the interview with the Sacramento police officers, defendant said he
was sitting near the Sacramento River when Lactawen walked by. They began
talking, and then walked to a more secluded spot nearby, where they had
consensual sex. They spoke some more, and defendant became angry and
21
strangled her. He did not remember how he strangled her or whether he tied her
up or used a gag.5
b. Childhood Sexual Assaults
In 1979, when defendant was 14 years of age and residing in Idaho Falls,
Idaho, he sexually assaulted a six-year-old girl, Rebecca Y., and two boys, 12-
year-old Brian M. and 11-year-old Cori H., in two separate incidents. On
March 17, 1979, Rebecca Y. was walking home from her friend’s house when a
teenaged boy told her he knew her mother and that Rebecca should do what he
said or she would be in trouble. The boy promised he would give her money if she
did what he said. Rebecca positively identified defendant in court as the boy.
Defendant led Rebecca to an area under a bridge and told her to do what he
said or he would kill her with a rock. He removed his penis from his pants and
told Rebecca to put her mouth on it while forcing her head down. When
Rebecca’s babysitter called for her, defendant ran away.
Rebecca’s father received a telephone call about what had happened and
drove to the bridge, where he saw a young man jump out of the canal and get on a
bicycle. Rebecca’s father chased after the boy, eventually tackling him. The
zipper of the boy’s pants was down, and the boy said he “did not hurt her.” The
father could not recognize defendant in court, but did identify a picture of him
from that time period as looking like the boy.
5
During the prior interview with the sheriff’s officers when he admitted
killing Lactawen, defendant said he became angry while he and she were
speaking, but later calmed down, at which point they had sex. Defendant said he
did “not really” force Lactawen to have sex. After having sex, they began to
argue, and defendant “flipped out” and strangled her. He did not remember
exactly how he strangled her or how or why he tied her hands.
22
When a police officer arrived, the boy identified himself as David Allen
Rundle. Defendant initially denied having assaulted Rebecca, but later that day at
the police station admitted taking her under the bridge, threatening to kill her with
a rock, and trying to “have sex” with her.
On April 24, 1979, Brian M. and Cori H. were riding their bikes when they
came across a person jogging who said he knew of good trails for bike riding.
During his testimony Brian identified defendant as this person. The boys agreed
to follow defendant, who led them to the bottom of a 15- to 20-foot-deep pit in a
very remote area. Once there, defendant said he had a gun in his pocket and
threatened he would either shoot the boys or crush them with a rock if they did not
do what he said. Defendant ordered the boys to disrobe and then told Cori to lie
on the ground and Brian to “fuck him.” When Brian said he did not understand,
defendant told him to lie on top of Cori, which he did. Defendant then told them
to get up, took out his penis, and had the boys orally copulate him until he
ejaculated. He then left with the boys’ clothes and told them not to leave the pit
for 15 minutes or he would shoot them, and not to tell anyone about what had
happened or he would find them and kill them. After the boys left the pit, they
found their clothes nearby, returned home, and reported what had happened.
Later, Brian was taken to a house, where he identified defendant as the perpetrator.
c. Marital Abuse
Defendant’s ex-wife testified she married defendant in March of 1984 and
separated from him in July of 1985. Defendant was physically violent toward her
during the marriage. He often struck her, once pushed her from a moving car, and
on one occasion during an argument threw her down and pounded her head on the
floor approximately 20 times. On many occasions defendant also physically
forced her against her will to engage in oral copulation and sodomy. Defendant
23
continued with these acts even though on various occasions she told him to stop,
vomited while his penis was in her mouth, and tried to keep away from him.
d. Psychiatric Testimony
Dr. Irwin Lyons, a psychiatrist, interviewed defendant on behalf of the
district attorney’s office soon after defendant’s arrest, in order to evaluate
defendant’s mental status. Defendant described the incidents with Rebecca Y.,
Brian M., and Cori H., as well as the Garcia and Sorensen murders. Defendant did
not mention that Sorensen had attempted to orally copulate him, or that his mother
sexually molested him as a child. Defendant said his family rejected him, and his
problems with his family caused him to have attacks of extreme rage during which
he could not control himself. Dr. Lyons did not believe defendant suffered from
any psychosis, but concluded he did have a personality disorder arising partly
from deficient child-rearing practices by his parents. Defendant was egocentric,
immature, lacking in capacity for empathy, and amoral. He was subject to
impulsive behavior during his rage attacks.
2. Defense Evidence
Dr. Richard Thomas, a psychologist, treated defendant in Idaho after his
sexual assault on Rebecca Y. In his opinion, defendant at that time had an
“explosive personality disorder,” which commonly involves overreacting to a
situation, blaming others, and making excuses for one’s difficulties and
inappropriate actions. Defendant was not psychotic or schizophrenic.
At counseling sessions, defendant refused to speak about the assault, a
circumstance that concerned Dr. Thomas because defendant also said he enjoyed
inflicting pain upon others and, in the doctor’s opinion, had a “real high
potential . . . to act out.” Defendant’s mother encouraged his refusal to speak
about the incident, thus negatively affecting defendant’s ability to accept
24
responsibility and obtain any benefit from treatment. Dr. Thomas felt defendant’s
family had problems in communicating and that defendant’s mother was
overwhelmed by having to care for the four children during the father’s frequent,
and at times lengthy, absences. Dr. Thomas, having provided marriage counseling
to defendant’s parents after defendant was sent to a state juvenile facility, believed
they had made progress in addressing their problems.
Defendant’s aunt and uncle, George and Bonnie Mae Russell, testified that
defendant was a “bright, alert” child and was “full of promise and potential.”
According to them, defendant’s mother singled defendant out for discipline and
often verbally abused him, never acting in a motherly way toward him. George
testified he saw defendant’s mother attempt to stab his father during a fight that
occurred in defendant’s presence. When defendant was no more than a year and a
half of age, George also observed what he thought was evidence of sexual abuse
upon seeing defendant’s penis. In George’s opinion, defendant’s mother’s denial
of abuse was insincere, and she often lied. George viewed defendant as a victim
of his mother’s abusive parenting and of dealers who supplied defendant with
drugs.
Several of defendant’s past employers testified he was a hard-working,
conscientious, and trustworthy employee. Deborah Peters, with whom defendant
resided in Nevada after the murders, testified he was nice and helpful and that she
would not have expected him to be charged with murder. Sherry Couzens, an
instructor in a high school equivalency program who met with defendant in jail
once a week for approximately two months, testified defendant completed the
program while incarcerated and was a quiet, focused, and thorough student. A
sergeant at the jail testified defendant provided deputies with information
concerning another inmate’s plan to escape from the jail and helped them locate
two prisoner-made weapons.
25
A defense investigator testified defendant’s ex-wife said defendant’s
relationship with his family was very strained and she never saw them act
affectionately toward him. She also said defendant told her his mother was not
faithful to his father, and his mother had strange sexual “quirks.” Defendant’s ex-
wife told another investigator she wanted to “pull the switch” on defendant and
have a party to celebrate.
3. Prosecution Rebuttal Evidence
The prosecution’s investigator testified that George Russell, defendant’s
uncle who testified on defendant’s behalf, stated he felt very strongly that the
death penalty should not be imposed in this case because defendant was not fully
responsible for the crimes. Additionally, Russell earlier told the investigator he
was unaware of any sexual conduct between defendant and his mother; Russell
had not mentioned observing any evidence of sexual abuse when defendant was an
infant or of defendant’s being physically disciplined by his parents.
Donald Rundle, defendant’s brother, testified that defendant was not treated
differently from any of his siblings, was not subjected to violent discipline or
verbal abuse, and refused to follow the family’s rules. Donald saw marijuana in
defendant’s possession, but never observed other drugs. Donald told a defense
investigator that after defendant was arrested for the murders, their father was so
upset that “if [defendant] was to get hit by a car in front of Dad, Dad would turn
around and walk away sooner than help him.”
4. Defense Surrebuttal Evidence
The defense investigator testified that Donald had said defendant’s father
would rather run over defendant with a car than stop for him, and that this
statement referred to the father’s attitude before defendant was arrested for the
murders.
26
II. DISCUSSION
A. Sufficiency of Appellate Record
Defendant contends his rights under state law and the Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution to a record adequate to
permit meaningful appellate review were violated by the trial court’s failure to
order transcribed (1) a proceeding in which it was established that defendant,
contrary to his prior wishes, had chosen not to be absent from the penalty phase of
the trial, and (2) in-chambers discussions regarding jury instructions. These
claims fail.6
1. Defendant’s Decision to Attend the Penalty Phase
During a noon recess in the presentation of the prosecution’s opening
statement at the penalty phase of the trial, defendant told court staff he did not
wish to be present for the remainder of the trial. The trial court subsequently
6
In this claim and most others on appeal, defendant also contends that the
asserted error or misconduct infringed various of his constitutional rights to a fair
and reliable trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412, 441,
footnote 17, and subsequent cases applies here: “In most instances, insofar as
defendant raised the issue at all in the trial court, he failed explicitly to make some
or all of the constitutional arguments he now advances. In each instance, unless
otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g.,
failure to instruct sua sponte; erroneous instruction affecting defendant’s
substantial rights) that required no trial court action by the defendant to preserve it,
or (2) the new arguments do not invoke facts or legal standards different from
those the trial court itself was asked to apply, but merely assert that the trial
court’s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional legal consequence of violating the Constitution. To that
extent, defendant’s new constitutional arguments are not forfeited on appeal.
[Citations.] [¶] In the latter instance, of course, rejection, on the merits, of a claim
that the trial court erred on the issue actually before that court necessarily leads to
rejection of the newly applied constitutional ‘gloss’ as well. No separate
constitutional discussion is required in such cases, and we therefore provide
none.”
27
mentioned this on the record outside the presence of the jury, and a second recess
was taken to allow defendant to discuss the matter with his attorneys. After that
recess, the court held an in camera meeting with defense counsel, at which counsel
requested the court adjourn for the day to allow more discussions with defendant.
Back in open court, the court adjourned the proceedings until the following
morning and also advised defendant the court was concerned that his decision be
made in a careful, rational, calm, and reflective manner, mentioning to him that his
absence during the penalty phase was likely to “make it worse” for himself.
Defense counsel were directed to “report” to the court by 8:30 the next morning, at
which point the prosecution and the jurors would be notified as to when the
proceedings would resume.
The following morning, on the record and outside the presence of the jury,
the trial court “confirm[ed] for the record that at present there is no request from
Mr. Rundle at this time to be absent.” Defense counsel agreed, and trial proceeded
with defendant present.
Defendant now contends the “court and defense counsel met on the
morning o[f] May 25, 1989, to determine whether [defendant] was willing or able
to participate in the remainder of the trial.” In the absence of a record of these
discussions, defendant argues, it is impossible to determine whether defendant was
competent to proceed with trial, or whether some improper influence, including
possible forced medication, was exerted upon defendant in order to convince him
to change his decision to be absent.
Defendant, however, has not established that any hearing actually occurred
that morning that could have been transcribed. The trial court merely directed
defense counsel to contact the court in the morning before proceedings began and
report to the court defendant’s decision so the jury and the prosecution could be
notified when proceedings would resume. The court then confirmed on the record
28
that defendant no longer wished to absent himself from the proceedings, which
presumably is what defense counsel reported earlier that morning. Unlike other
instances in which the record explicitly mentions off-the-record discussions, here
there is no indication anywhere in the record, including in the settled statements on
appeal, that any discussion between counsel and the court took place regarding
defendant’s ultimate decision to attend the proceedings. Defendant’s suggestion a
meeting occurred at which such a discussion transpired is no more than
unsupported speculation, and he has not shown the existing record is inadequate in
this respect.
2. Jury Instructions
In contrast to the situation discussed above, it is undisputed that a number
of informal meetings concerning proposed guilt and penalty phase jury
instructions were held off the record and hence were not transcribed. The trial
court instead afforded defendant the opportunity to place on the record after the
instructions were finalized any objections to the jury instructions to be given or
requests for other instructions that were not resolved to his satisfaction during the
conferences. As the trial court and the parties later acknowledged, this procedure
was erroneous. Section 190.9, subdivision (a)(1), requires that all conferences and
proceedings in a death penalty case must be conducted “on the record with a court
reporter present.” We previously have held, however, that such an error is not
reversible per se; instead the defendant must demonstrate prejudice. (See People
v. Freeman (1994) 8 Cal.4th 450, 509; People v. Cummings (1993) 4 Cal.4th
1233, 1333, fn. 70.) We decline defendant’s request to reconsider this holding.
“[S]tate law entitles a defendant only to an appellate record ‘adequate to
permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal
constitutional requirements are similar. The due process and equal protection
29
clauses of the Fourteenth Amendment require the state to furnish an indigent
defendant with a record sufficient to permit adequate and effective appellate
review. [Citations.] Similarly, the Eighth Amendment requires reversal only
where the record is so deficient as to create a substantial risk the death penalty is
being imposed in an arbitrary and capricious manner. [Citation.] The defendant
has the burden of showing the record is inadequate to permit meaningful appellate
review. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 857-858 (Rogers).)
After the unreported discussions regarding jury instructions at each phase
of the trial, the trial court discussed the proposed final instructions in open court
and invited counsel for both sides to place on the record any continuing objections
to those instructions, including requested instructions that were not accepted by
the court. In reviewing the guilt phase instructions, the court specifically warned
counsel that “your silence after a [jury instruction] number is read indicates that
we are all in concurrence. If I don’t stop myself, stop me because that will be the
way we reflect the rulings.” Similarly, at the penalty phase, on-the-record,
substantive discussions took place concerning all of the instructions before the
final instructions were adopted, during which the trial court invited the defense to
state agreement or disagreement with the instructions. Defense counsel testified
during the record settlement proceedings that all unresolved objections and
requests were placed on the record during these transcribed proceedings, and the
prosecutor stated that he too confirmed from his notes that all of the defense
objections were stated on the record.
Defendant observes, however, that even with these explanations thus placed
into the record, the specifics as to whether additional objections were raised and
how those objections were resolved so as to eliminate any ongoing disputes are
30
absent from the record.7 He contends that because of this shortcoming, he cannot
definitively determine which instructions initially were objected to or requested,
whether the resolution of any such objections was “the correct outcome or the
result of an erroneous application of law or an unreasonable interpretation of the
evidence,” or whether some instruction that was supported by the evidence was
intentionally or negligently omitted.
Although there is a gap in the record of the process by which the final jury
instructions were compiled, defendant has not carried his burden of demonstrating
that this gap in any way affects our ability to undertake meaningful appellate
review of the jury instructions. The instructions actually given to the jury are
contained in the record, and defendant was afforded the opportunity to make, on
the record, all his objections to those instructions, which he did. The record,
therefore, is adequate to allow us to determine which objections defendant
preserved for appeal and to review the merits of these objections. It is unfortunate
that we do not have the added benefit of a more complete record of the bases for
the preserved objections or requests, any response to them from the prosecution,
and the reasoning of the trial court in overruling an objection or denying a request,
but this circumstance does not prevent us from adequately reviewing the preserved
challenges to the instructions. (See People v. Huggins (2006) 38 Cal.4th 175, 204-
205 (Huggins).)8 We also are able to adequately review claims — several of
7
During the record-settlement proceedings, the trial court and trial counsel
were unable to recall the specifics of the unrecorded discussions.
8
To the extent there were preliminary objections or requests that were
resolved to defense counsel’s satisfaction, resulting in no objection to the final
instruction and thus no memorialization of any objection in the on-the-record
discussions, such objections would be forfeited or waived if raised on appeal.
Even had all the conferences been transcribed, our determination in this regard
would be the same.
31
which defendant has raised and are addressed below — that the trial court had a
duty to give certain instructions on its own motion, because we may assume that
when the existing record is silent, no invited error by defense counsel occurred.
(Cf. People v. Young (2005) 34 Cal.4th 1149, 1203 (Young) [“because it cannot be
ascertained whether defense counsel specifically requested clarification [of an
instruction], we shall give defendant the benefit of the doubt and find the issue
preserved for appeal”]; People v. Cooper (1991) 53 Cal.3d 771, 830
[“ ‘the court’s responsibility [on its own motion to give a required instruction]
could be negated only in that special situation in which the defense counsel
deliberately and expressly, as a matter of trial tactics, objected to the rendition of
an instruction’ ”].)
Although defendant’s ability to challenge the adequacy of his attorneys’
representation vis-à-vis jury instructions may be limited at this point by the
absence of a complete record, defendant has not shown that he has been prejudiced
in his ability to advance any claims of ineffective assistance of counsel he might
have raised on appeal. Defendant has not established that had these conferences
been transcribed, the record would demonstrate defense counsel’s understanding
of the law and counsel’s tactical reasons, if any, for objecting to or requesting
particular instructions, or choosing not to do so. (See People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.)
Accordingly, the error in failing to transcribe the jury instruction
conferences was harmless under the applicable state (People v. Watson (1956) 46
Cal.2d 818, 836 (Watson)) and federal (Chapman v. California (1967) 386 U.S.
18, 24) standards.
32
B. Denial of Pretrial Motion to Exclude Defendant’s Confessions
As mentioned above, defendant participated in a series of eight interviews
with representatives of law enforcement after he was arrested: the first three with
officers from the Placer County Sheriff’s Department regarding the murders of
Garcia and Sorensen; the next two with officers from the Sacramento County
Sheriff’s Department regarding other murders they were investigating that had
similarities to the Garcia and Sorensen cases; one interview with officers from the
City of Sacramento Police Department regarding the Lactawen murder; another
interview with Sacramento County Sheriff’s officers; and finally an interview with
Dr. Irwin Lyons, a psychiatrist who was evaluating defendant on behalf of the
district attorney’s office. Defendant was advised repeatedly of his Miranda rights,
waived those rights, and agreed to talk. Nonetheless, he moved before trial to
suppress the statements he made to the officers as involuntary and as obtained in
violation of Miranda, on the ground the waivers were not knowingly, intelligently,
and voluntarily made. The trial court, conducting a hearing at which several
officers testified, found the waivers valid and the statements voluntary.
Defendant’s motion later was expanded to include the statements he made to Dr.
Lyons, and a second pretrial hearing was held at which Dr. Lyons, various peace
officers, and defendant testified.9 In light of the new testimony offered, the trial
court reconsidered its earlier ruling on the admissibility of the statements made to
the officers, but again found that all of the statements, including those made to Dr.
Lyons, were voluntary and that defendant’s Miranda waivers were valid. Critical
9
Defendant did not file a written motion to exclude the statements made to
Dr. Lyons; his first motion mentioned only the statements made to law
enforcement officers. At the conclusion of the first suppression hearing, defense
counsel objected to the prospect of Dr. Lyons testifying concerning defendant’s
statements, and the court said it would schedule another hearing on that issue.
33
to the trial court’s decision were its findings that (1) although the Sacramento
County officers made some representations to defendant about possible leniency
and psychological treatment, these statements were not specific promises but were
statements of the “generalized benefit to be gained by speaking”; (2) these
representations were not the cause of defendant’s decision to make the statements;
and (3) defendant never invoked his right to remain silent or to the assistance of
counsel, even though he once asked the Sacramento County officers to stop
questioning him, and mentioned an attorney during the interview with Dr. Lyons.
During the guilt phase of the trial, over defendant’s renewed objection, a
Placer County officer testified concerning defendant’s confessions to the Garcia
and Sorensen murders. At the penalty phase, again over renewed objection, tape
recordings of defendant’s confessions to the Lactawen murder were played to the
jury, and Dr. Lyons testified concerning defendant’s confessions. On appeal,
defendant contends the trial court erred by not suppressing his statements. We are
not persuaded.
The admission at trial of a defendant’s statements made involuntarily to
government officials violates the defendant’s federal due process rights under the
Fifth and Fourteenth Amendments. (Dickerson v. United States (2000) 530 U.S.
428, 433-434 (Dickerson).) Similarly, a defendant must be advised of his or her
Miranda rights, and must make a valid waiver of these rights, before questioning
begins or any statements resulting from interrogation can be admitted. (Id. at
p. 435; Miranda, supra, 384 U.S. at p. 479.)
When a defendant challenges the admission of his or her statements on the
ground they were involuntarily made, the prosecution must prove by a
preponderance of the evidence the statements were, in fact, voluntary. (People v.
Guerra (2006) 37 Cal.4th 1067, 1093 (Guerra).) A statement is involuntary if it is
“not ‘ “the product of a rational intellect and a free will.” ’ ” (Mincey v. Arizona
34
(1978) 437 U.S. 385, 398 (Mincey).) The court in making a voluntariness
determination “examines ‘whether a defendant’s will was overborne’ by the
circumstances surrounding the giving of a confession.” (Dickerson, supra, 530
U.S. at p. 434.) Coercive police tactics by themselves do not render a defendant’s
statements involuntary if the defendant’s free will was not in fact overborne by the
coercion and his decision to speak instead was based upon some other
consideration. (Colorado v. Connelly (1986) 479 U.S. 157, 167 (Connelly);
People v. Maury (2003) 30 Cal.4th 342, 404-405 (Maury).) The determination
whether the authorities improperly coerced a defendant’s statements involves an
evaluation of the totality of the circumstances, including the nature of the
interrogation and the circumstances relating to the particular defendant.
(Dickerson, supra, 530 U.S. at p. 434.)
The same inquiry applies when a court evaluates the voluntariness of a
Miranda waiver. (Connelly, supra, 479 U.S. at pp. 169-170.) Such a waiver must
be knowingly and intelligently made, meaning that the defendant must have been
capable of freely and rationally choosing to waive his or her rights and speak with
the officers. (People v. Frye (1998) 18 Cal.4th 894, 988 (Frye).)
Even if a defendant voluntarily has waived his or her Miranda rights to
remain silent and to have counsel present, the defendant later may revoke the
waiver. In such a case, “once a defendant has indicated an intent to assert his right
to remain silent or to counsel, all further attempts at police interrogation should
cease.” (People v. Jennings (1988) 46 Cal.3d 963, 977.) “In order to invoke the
Fifth Amendment privilege after it has been waived, and in order to halt police
questioning after it has begun, the suspect ‘must unambiguously’ assert his right to
silence or counsel. (Davis v. United States (1994) 512 U.S. 452, 459 (Davis),
italics added.) It is not enough for a reasonable police officer to understand that
the suspect might be invoking his rights. (Ibid.) Faced with an ambiguous or
35
equivocal statement, law enforcement officers are not required under Miranda,
supra, 384 U.S. 436, either to ask clarifying questions or to cease questioning
altogether. (Davis, supra, 512 U.S. at pp. 459-462.)” (People v. Stitely (2005) 35
Cal.4th 514, 535 (Stitely).) A defendant has not invoked his or her right to silence
when the defendant’s statements were merely expressions of passing frustration or
animosity toward the officers, or amounted only to a refusal to discuss a particular
subject covered by the questioning. (Ibid.; Jennings, supra, 43 Cal.3d at p. 978;
People v. Silva (1988) 45 Cal.3d 604, 629-630; see also Miranda, supra, 384 U.S.
at pp. 473-474.)
On appeal, we review independently the trial court’s legal determinations of
whether a defendant’s statements were voluntary (Guerra, supra, 37 Cal.4th at
p. 1093), whether his Miranda waivers were knowingly, intelligently, and
voluntarily made (People v. Mayfield (1993) 5 Cal.4th 142, 172 (Mayfield)), and
whether his later actions constituted an invocation of his right to silence (People v.
Gonzalez (2005) 34 Cal.4th 1111, 1125). We evaluate the trial court’s factual
findings regarding the circumstances surrounding the defendant’s statements and
waivers, and “ ‘accept the trial court’s resolution of disputed facts and inferences,
and its evaluations of credibility, if supported by substantial evidence.’ ” (Ibid.;
Guerra, supra, 37 Cal.4th at pp. 1092-1093.)
1. Invocation of Right to Silence at First Interview
Defendant
first
contends he invoked his right to remain silent at the
conclusion of the first interview with the Placer County officers at the Carson City
jail when he told them he wanted to stop the interview because he had a headache
and wished to return to his cell. Defendant never raised this claim in the trial
court. He filed only a generic written motion requesting the suppression of all
statements made to the authorities, without any discussion of which particular
36
grounds for suppression existed; indeed, his attorney conceded after the first
suppression hearing that there was no basis to challenge the admission of the
statements made by defendant to Placer County officers on grounds of
involuntariness, and never mentioned an invocation of the right to silence. No
further testimony or argument regarding an invocation of the right to remain silent
during the interviews conducted by the Placer County officers was offered at the
second hearing, and the trial court made no finding regarding whether defendant
invoked his right to silence at the conclusion of the first interview.
“Evidence Code section 353, subdivision (a) allows a judgment to be
reversed because of erroneous admission of evidence only if an objection to the
evidence or a motion to strike it was ‘timely made and so stated as to make clear
the specific ground of the objection.’ Pursuant to this statute, ‘ “we have
consistently held that the ‘defendant’s failure to make a timely and specific
objection’ on the ground asserted on appeal makes that ground not cognizable.” ’
[Citation.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 20 (Demetrulias).) “To
satisfy Evidence Code section 353, subdivision (a), the objection or motion to
strike must be both timely and specific as to its ground. An objection to evidence
must generally be preserved by specific objection at the time the evidence is
introduced; the opponent cannot make a ‘placeholder’ objection stating general or
incorrect grounds (e.g., ‘relevance’) and revise the objection later in a motion to
strike stating specific or different grounds.” (Id. at p. 22.)
Thus, defendant’s entirely generic motion to exclude all of his statements to
law enforcement officers, coupled with the absence of specific argument that
defendant had invoked his right to silence at the end of the first interview, failed to
37
preserve this claim for appeal.10 (See also People v. Partida (2005) 37 Cal.4th
428, 434-435 (Partida).)
Even if this claim had not been forfeited, it is without merit. Defendant’s
request to stop the interview at the Carson City jail was not an assertion of his
right not to incriminate himself. Defendant already had confessed to the Garcia
murder and provided the officers with a map showing where the body was located.
Defendant had not expressed any reluctance to speak further about the murder
before asking to stop the interview because he had a headache. Immediately after
defendant asked to end the interview, the officers, in fact, stopped the questioning,
and asked him only whether they could pose more questions during the next few
days, to which he answered, “Yes.” Defendant never testified during the
suppression hearing that when he asked to stop the interview because he had a
headache, he at that time had decided not to speak further with the officers at any
future occasion concerning the crimes. In fact, defendant’s testimony was to the
contrary: that he always intended to cooperate with the authorities because he
thought “that’s what you do.” It is clear from this record that defendant did not
invoke his right not to incriminate himself, but merely asked for a break from
questioning. The statements made by defendant during the later session with the
officers, including the questioning by the Sacramento officers, therefore were not
the “fruits” of any constitutional violation resulting from the continued
questioning of defendant after he asked for a temporary suspension of questioning
for the night.
10
Defendant’s written motion, in fact, explicitly challenges the validity of
only the initial Miranda waivers, and nowhere asserts that to the extent defendant
waived his rights, he later invoked them.
38
2. Asserted Inducements by Sacramento County Officers
Defendant
contends
his
confessions to the Lactawen murder, which were
admitted at the penalty phase of the trial, should have been suppressed because
they were the product of improper coercion by officers from the Sacramento
County Sheriff’s Department. We disagree.
After defendant confessed to the Garcia and Sorensen murders, the Placer
County officers contacted homicide investigators in the Sacramento County
Sheriff’s Department who were investigating a series of other murders of young
women in the Interstate Highway 5 corridor in Sacramento County (the I-5
murders). During the first interview with the Sacramento County officers,
defendant denied any involvement in any murders other than the two to which he
had confessed. In a second interview, defendant continued to deny involvement in
the I-5 murders but admitted having committed another murder, which turned out
to be the Lactawen homicide. After defendant provided details of that incident,
the officers realized the murder was under the jurisdiction of the City of
Sacramento Police Department and contacted homicide officers in that agency.
Those officers then conducted a third interview, during which defendant provided
more details of the Lactawen murder.11 These interviews were tape-recorded, and
a redacted recording of the second interview, with references to the I-5 murders
excised, was played to the jury along with a recording of the third interview.
Defendant argues these recorded statements were involuntary, and thus
improperly admitted, because his will was overborne when the Sacramento
County officers, during their second interview, threatened to withhold psychiatric
11
The Sacramento County officers conducted another interview the following
day and again questioned defendant concerning the I-5 murders. Defendant
continued to deny any involvement. By the time of the suppression hearing, it had
been determined that defendant was not a suspect in those murders.
39
treatment if defendant did not confess, promised him leniency and treatment if he
did confess, and predicted defendant’s mental difficulties would seriously worsen
if he did not talk but would lessen if he did. The trial court found the officers did
make “inducements” but their statements did not extend beyond suggestions
defendant would realize some “generalized benefit” by speaking. More
significantly, the court found the representations that were made were not the
cause of defendant’s decision to make the statements. Rather, the trial court
concluded, defendant chose to confess “because of his preexisting belief that that’s
what you did” and his desire to “unburden himself.”
On appeal, defendant argues primarily that the trial court erred by finding
that the actions of the officers did not constitute improper coercion. We need not
resolve that question. Even assuming — without deciding — the statements made
to defendant might constitute improper promises or threats under some
circumstances, we conclude the trial court did not err by finding that a
preponderance of the evidence in this case established defendant’s decision to
confess to the Lactawen murder was voluntary and was “completely separate and
apart from any apparent inducements that [the officers] might have given to him.”
(See Connelly, supra, 479 U.S. at p. 167; Maury, supra, 30 Cal.4th at pp. 404-
405.)
Defendant’s challenge to the trial court’s finding of a lack of causation
centers on the circumstance that his confession to the Lactawen murder followed
close in time to when the officers made their representations in attempting to
convince him to talk. He argues, relying upon the Court of Appeal’s decision in
People v. Cahill (1994) 22 Cal.App.4th 296, 316, that there is a rebuttable
presumption his confession resulted from the representations, because of their
40
temporal proximity. Assuming, without deciding, defendant’s reading of People
v. Cahill, supra, 22 Cal.App.4th 296, is a correct statement of the law,12 we
nonetheless conclude the totality of the circumstances in this case establishes
defendant’s confession was not the product of the representations made by the
officers.
First, the tape-recorded statements upon which defendant relies were made
after defendant had admitted committing a third murder. As the officer testified at
the suppression hearing, the first interview conducted by the Sacramento County
officers concerning the I-5 murders was unproductive. The officers then returned
a few minutes later with their supervisor, who “covered a lot of the ground [they]
had already talked about . . . and got the same sort of denials that [they] had earlier
encountered.” Approximately 27 minutes into the second interview, defendant
12
The Court of Appeal did not specifically use the term “rebuttable
presumption”; the word “presumption” comes from our decision in People v.
Jimenez (1978) 21 Cal.3d 595, 614, overruled on another ground in People v.
Cahill (1993) 5 Cal.4th 478, 509-510, footnote 17, which the Court of Appeal
cited. In Jimenez, however, we addressed the question whether a second
confession is tainted by improper police coercion that rendered a first confession
involuntary. In such cases, “[t]he rule has been long and well settled in this state,
that when an accused who has been subjected to improper influences makes a
confession, and shortly thereafter again incriminates himself, ‘. . . there is a
presumption that the influence of the prior improper treatment continues to operate
on the mind of the defendant and that the subsequent confession is the result of the
same influence which rendered the prior confession inadmissible, and the burden
is upon the prosecution to clearly establish the contrary. [Citations.]’ ” (People v.
Jimenez, supra, 21 Cal.3d at p. 614.) That is a situation different from when, as in
People v. Cahill, supra, 5 Cal.4th 478, and this case, a court is evaluating whether,
in the first instance, there was an involuntary confession. Although the lapse of
time between an officer’s promise or threat and a defendant’s decision to confess
certainly may be a relevant factor when assessing the totality of the circumstances
surrounding the voluntariness of the statement, it is not clear that closeness in time
should give rise to a presumption that a confession was coerced.
41
told the officers he had not committed any of the killings about which they were
questioning him, but had committed another murder. It was at this point that the
tape recorder was turned on. Although this tape recording begins with the officers
discussing possible benefits defendant might receive by telling the officers about
the murder, defendant’s initial admission obviously came before those particular
statements. Indeed, defendant testified at the hearing that the first time the
Sacramento County officers mentioned obtaining help for him was when an
officer made a statement about another murderer who supposedly was placed in a
prison psychiatric facility — a statement found more than one minute into the tape
(that is, after defendant had admitted committing another murder). There was no
testimony at the suppression hearing concerning any promise, threat, or other
inducement having been made before the tape recorder was turned on. Thus, the
record does not contain evidence suggesting the officers made any representations
before defendant confessed to the Lactawen murder, although defendant,
apparently, had not yet supplied them with the details.
Second, as the trial court observed, it appears from statements made by
defendant during the interviews that he never believed he would receive the
benefits discussed by the officers. Despite their statements that defendant could
receive help if he talked, he repeatedly expressed his belief that even if he spoke to
them he would be sent to prison, forgotten about, and receive no help. He
continued to voice this belief even after providing the details of the murder. At no
point during the interview did defendant explicitly state or even imply that he had
been convinced otherwise. Although defendant testified at the suppression
hearing that he believed, even before speaking to the authorities, he would receive
help from them, this after-the-fact, self-serving testimony is directly contradicted
42
by the prior contemporaneous expressions of his state of mind: that he would not
receive any help, but instead would be sent to prison and forgotten.13 In fact, on
cross-examination, defendant testified he told the officers during the interviews he
would not be offered a beneficial deal because “the way the people were cussing at
me and stuff out in the booking room, I figured it was over.”14
Third, defendant’s own testimony at the suppression hearing established
that his decision to confess to the three murders was based upon his own
preexisting personal belief that a person should cooperate with the authorities and
tell them what he knows about a crime, completely separate from any
representations made by the officers. On direct examination, when asked about
his Miranda waivers, defendant said, “I figured I had to cooperate. I always did
before. When I got in trouble in Idaho, I did it then.” On cross-examination and
redirect examination, defendant reiterated many times his belief that confessing is
“what you do when you are caught by the law.” Indeed, the trial court examined
defendant briefly, specifically asking him: “When you say you felt you had to
cooperate with [the officers], that was something you felt from before this ever
started and you believed that all the way through?” Defendant responded, “Yes,
13
Indeed, even when defendant was speaking during the interview about his
experiences at the reform school in Idaho, he told the officers that “People didn’t
try to help you. They just played games with you and made you stand in corners
and shit.”
14
The trial court noted that some of defendant’s testimony at the hearing
arguably was self-serving, but stated it would “accept his testimony as a generally
accurate portrayal of his state of mind at the time.” As defendant’s answer on
cross-examination makes clear, however, his testimony was contradictory
regarding whether he believed he would receive the benefits mentioned by the
officers.
43
because you tell them what you know.”15 In addition, the circumstance that
defendant had confessed to the Placer County officers concerning two murders,
although those officers had not given any “inducements,” is further evidence of his
state of mind concerning his willingness to admit his role in the Lactawen murder
regardless of any representation made by the Sacramento County officers.
In sum, there is ample evidence supporting the conclusion that defendant’s
decision to confess to the Lactawen murder was not the product of any coercive
tactic by the officers, but rather was based upon defendant’s free will and his
preexisting belief that when questioned by the authorities, a person should tell
what he knows. This evidence substantially outweighs any implication arising
from defendant’s decision to confess to the Lactawen murder a relatively short
time after the officers made their representations about defendant receiving
help — the primary circumstance cited by defendant in support of his claim of
error. Accordingly, the trial court properly denied the motion to suppress these
statements.
3. Statements to Dr. Lyons
Defendant challenges the admission of Dr. Lyons’s testimony regarding
statements made by defendant during the interview conducted in the Placer
County jail soon after his arrest. Defendant contends these statements should have
been excluded on the ground the waiver of his Miranda right to remain silent was
not knowing, intelligent, and voluntary, because his preoccupation with receiving
15
The trial court earlier had asked defendant, “I want you to tell me whether
I’m understanding you correctly. [¶] It sounds to me that you’re saying that you
assumed from when this first started, from the first moment they picked you up,
that what you had to do was tell them what happened.” Defendant responded,
“Correct.”
44
psychological treatment rendered him unable to appreciate the circumstance that
Dr. Lyons was acting on behalf of the prosecution. Defendant also claims his
statements were involuntary because they were the product of the prosecution’s
“highly disturbing practice” of sending a psychiatrist to visit a mentally disturbed
defendant. Defendant never raised these specific claims below, and the trial court
accordingly made no finding on these issues.16 The only issues raised and
addressed by the trial court in this regard were whether defendant had invoked his
right to silence at the conclusion of the interview with the Sacramento County
officers immediately prior to Dr. Lyons’s interview, and whether defendant
invoked his right to counsel during Dr. Lyons’s interview.17 Defendant does not
renew those issues on appeal, and therefore they are waived. (Cal. Rules of Court,
rule 8.204(a)(1)(B) [former rule 14(a)(1)(B)]; People v. Wilkinson (2004) 33
16
As we observed above, defendant did not make any mention of his
statements to Dr. Lyons in the written motion to suppress.
17
Regarding defendant’s possible invocation of the right to counsel, Dr.
Lyons testified that approximately 15 to 25 minutes after defendant gave his
Miranda waivers, he mentioned that the officers in the jail “won’t let him see a
public defender.” Dr. Lyons immediately ceased questioning defendant about the
case, and reminded him that Dr. Lyons was there on behalf of the district
attorney’s office and might testify against defendant, and then asked defendant
whether he wanted to stop the interview so he could speak to a lawyer. Defendant
“emphatically” said no, he wanted to continue talking to Dr. Lyons. Defendant
did not mention to Dr. Lyons that he had made any specific request for an attorney
at the jail.
Defendant testified that he asked Dr. Lyons, “When do I get to see an
attorney?” He claimed not to remember Dr. Lyons’s admonishment that the
interview would be stopped so defendant could consult an attorney if he wished,
but acknowledged that they continued to discuss the crimes.
The trial court found that there was only a “general discussion concerning
the right to representation,” not an invocation of the right to counsel by defendant.
45
Cal.4th 821, 846, fn. 9.) The claims he does raise regarding his statements to Dr.
Lyons are forfeited. (Demetrulias, supra, 39 Cal.4th at p. 22.)
Even if they were not forfeited, defendant’s claims that he did not
knowingly and intelligently waive his Miranda rights and that his waivers and
statements to Dr. Lyons were involuntary would fail, because there is no evidence
supporting them. To the contrary, Dr. Lyons testified in detail concerning his
giving defendant the Miranda advisements, including informing defendant that
Lyons had been appointed by the district attorney and might testify against
defendant at trial, and that his purpose in meeting with defendant was not to
provide him with medical or psychiatric treatment. Dr. Lyons testified defendant
stated that he understood his rights and Dr. Lyons’s role before agreeing to speak
to Dr. Lyons. Defendant repeatedly and emphatically stated he wished to speak to
Dr. Lyons despite Lyons’s potentially adverse role in the case. Throughout the
interview, defendant appeared to understand Dr. Lyons’s questions and was able
to communicate.18
Moreover, defendant testified he generally realized from the various
Miranda advisements he received that what he said would be used in court, and
although he testified he believed he would receive “help” from the authorities, he
never stated his own thinking was so affected by his desire for help that he did not
understand the implications of speaking with Dr. Lyons or felt unable to exercise
his free will to refuse to do so. Although defendant’s answers on cross-
examination were somewhat evasive, defendant, when asked whether he realized
his statements to Dr. Lyons might be used against him answered, “I didn’t know
18
Dr. Lyons did, however, prescribe at the end of the interview a tranquilizer
for defendant due to his high level of anxiety.
46
what extent he would, no.” When specifically asked whether he voluntarily spoke
with Dr. Lyons about his crimes, defendant answered, “Yes. That’s what his job
was. He wanted to know my state of mind, how I felt about the crimes.”
It was not until defendant was asked somewhat leading questions on
redirect examination that he testified his “principal motivation” for speaking to
Dr. Lyons was his desire to receive help from him. Even if this claim is true, it
does not establish that defendant’s decision to speak with Dr. Lyons was the result
of any coercive activity by Dr. Lyons, as opposed to defendant’s internal beliefs
and desires.
Defendant argues on appeal, however, that the very circumstances of the
interview were improperly coercive, because prior to meeting Dr. Lyons, the
officers had told defendant they had arranged for psychological help for him. This
argument, however, is refuted by the evidence in the record. Dr. Lyons testified
he repeatedly told defendant he was not meeting with him to provide psychiatric
help, and defendant, in fact, understood this and did not expect help from Dr.
Lyons, but rather expressed his desire for future psychological help in a general
sense. Thus, any misapprehension defendant initially may have had regarding Dr.
Lyons’s role and what defendant might gain from speaking with him would have
been dispelled during the interview. There is no evidence in the record supporting
defendant’s claim that he did not knowingly, intelligently, and voluntarily waive
his Miranda rights before speaking with Dr. Lyons, or that his statements were
otherwise involuntary because of improper coercion.
4. Total Length of Interrogations
Defendant makes an additional claim on appeal that was not raised below:
he asserts his statements to the officers concerning the Lactawen murder and to
Dr. Lyons were involuntary because of the “extensiveness of the interrogations.”
47
Defendant stresses the total amount of time he was interrogated on the day he was
transferred from Nevada to California. (See Mincey, supra, 437 U.S. 385; Spano
v. New York (1959) 360 U.S. 315, 322.) Again, this claim was not raised or
addressed in the trial court and therefore is forfeited. (Demetrulias, supra, 39
Cal.4th at p. 22.) Additionally, even if not forfeited, this claim is without merit.
Unlike the situations in Mincey and Spano, here there was no single interview that
lasted many hours, ultimately resulting in a confession after the defendant earlier
had refused to speak. (See Mincey, supra, 437 U.S. at p. 401 [four-hour
interrogation of a “seriously and painfully wounded man on the edge of
consciousness” that stopped only during those periods when he was unconscious];
Spano, supra, 360 U.S. at p. 322 [eight-hour interrogation at night with only one
break while defendant was moved to a new location for further questioning].)
Rather, there was a series of relatively short interviews by various officers about
different crimes, often with significant breaks in between, including the first night
after his arrest and a dinner break the next day when he arrived at the Placer
County jail. Even during the first two interviews with officers from the
Sacramento County Sheriff’s Department, which were separated by only a few
minutes, defendant admitted to the Lactawen killing after less than one hour of
questioning in total. There simply is no evidence in the record, including the tape-
recorded statements and defendant’s testimony at the suppression hearing,
suggesting that the authorities exploited the “slowly mounting fatigue” resulting
from prolonged questioning, or that such fatigue occurred or played any role in
defendant’s decision to confess. (Compare Spano, supra, 360 U.S. at p. 322.)
48
C. Guilt Phase Claims
1. Assertedly Erroneous Evidentiary Rulings
a. Admission of Defendant’s Suppression Hearing Testimony
During Cross-examination at Trial
Before defendant testified at the hearing on his motion to suppress his
statements to the officers, his counsel clarified that defendant was making a
“limited waiver” of his right not to be called as a witness, in that he would not be
testifying as to the substance of any of his statements, but only regarding his
Miranda waivers and the voluntariness of his statements. During cross-
examination at the suppression hearing, the prosecutor asked defendant whether he
had spoken with the officers at the Carson City jail and given them a “full
statement” concerning the Garcia killing. When defendant answered that he had
not given them a full statement, defense counsel objected and moved to strike the
answer as nonresponsive, further objecting to the question because “to the extent
that the question calls for anything substantive, it is beyond the scope of the
limited waiver of self-incrimination.” The court struck the answer and asked the
prosecutor to rephrase the question. The court also advised defendant to answer
the prosecutor’s questions “without saying the actual things that you said.” Soon
thereafter, the following questions and answers were exchanged:
“Q [by prosecutor]: Were you cooperating with [the officers] because you
thought that that was the right thing to do and you were going to just tell the truth?
“A [by defendant]: I was sure that’s what you do when you are in that
position. I had to do it before.
“Q: Did you decide to talk to them yourself? Did you make that decision
that ‘I’ll talk with them because I am going to tell them the truth’?
“A: Well, they come and asked me. They said they had all the evidence, so
I — yes, I guess so.
49
“Q: Okay. You decided on your own to talk to them, is that right?
“A: After they told me they had all the evidence, yes.
“Q: Okay. And did you want to tell the truth at that interview at the jail
yourself?
“A: I did.”
At that point defense counsel objected to the prosecutor’s question as
“substantive.” The trial court described the question as “mixed” and stated, “I
think the question [sic] will be admitted not for the substantive notion of wanting
to tell the truth — ” at which point the prosecutor interjected, stating the answer
was offered “for his state of mind.” The court then stated, “Yes. Accepted solely
for that purpose, limited to it.” The prosecutor then followed up with a reiteration
of the question whether defendant wanted to tell the truth to the officers, and
defendant answered, “I didn’t walk in voluntarily. I figured that that’s what you
do when you are caught by the law. Tell them what you know.”
At trial, defendant testified that the version of the Garcia and Sorensen
killings he gave the officers during the interviews — that he engaged in sexual
activities with the victims and strangled them because he was frightened — was
not true, primarily because he now was stating that he had strangled the victims in
fits of rage and did not decide to engage in sexual activities with them until after
they were dead. He also testified he did not want to tell the officers what really
happened because the truth was embarrassing; he did not want to talk about his
problems with his mother; he thought it would be worse for him if he gave them a
true account, and he thought that giving the untrue versions would cause the
officers to stop questioning him.
On cross-examination, the prosecutor sought to impeach defendant with the
testimony from the suppression hearing set forth above, in which defendant said
he wanted to tell the officers the truth. Defendant objected on the ground that use
50
of his hearing testimony would “mislead[ ] the jury, in that the purpose of any of
those questions and answers didn’t have to do with the substantive truth of the
statements. [¶] They had to do with the Miranda warnings, the admissibility.”
The prosecutor disagreed, arguing some of the questions and answers concerned
the substantive issue of whether the statements to the officers were true. The trial
court stated, somewhat cryptically, that with regard to “some of the questions, at
least, the jury could find [they] went to substance, and I think those are arguably
sufficient within the substance to be permissible.”
Defense counsel then expressed concern that the only way to avoid
misleading the jury would be to disclose the context in which defendant’s prior
testimony was given, but telling the jury that the hearing concerned defendant’s
motion to suppress those statements would unduly prejudice defendant.
Accordingly, defense counsel argued, the testimony should be excluded under
section 352 of the Evidence Code. The trial court, although not convinced
disclosure of the full context of the testimony would be prejudicial, agreed that
disclosure of these circumstances was unnecessary and could be avoided through
certain precautions, and therefore permitted the prosecutor to make use of the prior
testimony during cross-examination.
The prosecutor then cross-examined defendant primarily by reading the
suppression hearing questions and answers and asking defendant whether his
testimony at the hearing — that he wanted to tell the truth to the officers — was
itself truthful. Defendant responded essentially that he wanted to tell the truth in
part — that he killed Garcia and Sorensen — but did not want to tell the whole
truth, for example the details of the murders. Defendant did not request any
clarifying admonition to the jury or revisit his prior testimony during the
subsequent redirect examination.
51
On appeal, defendant contends that the trial court erred by allowing the
prosecutor to impeach him with this testimony from the suppression hearing, and
that this error denied him his “rights to a fair trial, confrontation, due process,
effective assistance of counsel and a reliable and non-arbitrary sentencing process
under the Fifth, Sixth, Eighth and Fourteenth Amendments.” Defendant argues
use of the prior testimony was improper because it was limited specifically to his
state of mind and should not have been used to impeach his testimony about the
actual truthfulness of his confessions. Allowing the prosecutor to do so, defendant
contends, changed “the rules in the middle of the game,” depriving him of a fair
trial and effective assistance of counsel, and, in effect, retroactively depriving him
of a fair opportunity to challenge the admission of the statements in the first
instance. We are not persuaded.
Preliminarily, defendant’s arguments on appeal are not the same as those he
raised in the trial court. Defense counsel did not argue the hearing testimony was
inadmissible per se, as defendant does now; rather, he argued that its use was
misleading without its being placed in context, and that providing the jury with
this context would be unduly prejudicial.19 Defendant does not renew this
argument on appeal. He therefore has forfeited the new claims he now raises on
appeal. (See Partida, supra, 37 Cal.4th at pp. 434-435.)
Even if defendant had preserved these claims, we would find them to be
without merit. At the suppression hearing, defendant testified he wanted to tell the
19
Indeed, when the prosecutor first brought up his intention to use the
suppression-hearing testimony during cross-examination, defense counsel stated,
“I don’t think that’s inappropriate as long as the questions are phrased in terms of,
you know, ‘Did you testify at a prior proceeding,’ without emphasizing to the jury
that there was an attempt to suppress statements. [¶] I don’t think that’s any of
their business.”
52
authorities the truth, which in the context of the motion to suppress was relevant
evidence on the issue whether his confessions were voluntary and his Miranda
waivers were valid. (Evid. Code, § 210 [relevant evidence is that “having any
tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action”].) At trial, defendant testified he did not want to
tell the truth to the officers, and he was impeached with his hearing testimony on
that issue. In addition, defendant’s own trial testimony put in issue not only
whether he wanted to tell the truth to the officers, but also the very truthfulness of
his confessions.
Defendant, however, never testified at the suppression hearing that he
actually told the truth to the officers, and therefore no such statement was admitted
as evidence at trial. Indeed, whether or not he actually told the truth to the officers
was not germane at the suppression hearing, where the only issues were whether
his statements were voluntary and his Miranda waivers were valid. Nevertheless,
once defendant at trial also put at issue the veracity of his confessions, the same
testimony regarding his state of mind admitted at the suppression hearing took on
threefold significance: it tended generally to impeach his credibility as a witness;
it tended directly to prove he did want to tell the truth to the officers (see People v.
Crew (2003) 31 Cal.4th 822, 849); and it tended circumstantially to prove he did,
in fact, tell the truth to the officers.
On appeal defendant takes issue with this third use, but, notably, this was
not the concern he raised at trial. There he argued, in essence, that the jury would
not recognize the thin line between his stating he wanted to tell the truth and his
not saying he told the truth, without some explanation of the context in which his
suppression-hearing statements were made. In other words, at trial defendant
contended the jury improperly might view his hearing testimony as an admission
that he told the truth to the officers when, in fact, the truthfulness of the
53
confessions was not in issue at that time. Defendant did not argue at trial,
however, that it would be improper to view his wishing to tell the truth as
circumstantial evidence he told the truth, perhaps because, as we shall explain, this
inference was proper.
In using the prior testimony in cross-examination at trial, the prosecution
adduced the same evidence admitted at the suppression hearing — that defendant
wanted to tell the truth to the officers. No “substantive” evidence of the
confessions beyond what defendant previously gave pursuant to his “limited
waiver of the right to self-incrimination” was admitted at trial. In fact, no such
“substantive” evidence existed, because of the properly circumscribed nature of
the suppression hearing testimony.20 Instead, at trial a new inference could be
drawn from that same evidence: because defendant wished to tell the truth, he
probably did tell the truth.21 (Cf. People v. Griffin (2004) 33 Cal.4th 536, 578
[state-of-mind exception to the hearsay rule under Evid. Code, § 1250 permits
20
Indeed, it was somewhat of a truism for the trial court to state at the
suppression hearing that defendant’s statement that he wished to tell the truth was
admitted solely for the purpose of showing his state of mind. Defendant was
questioned and gave answers about only his state of mind. This was unlike the
situation in which, for instance, a hearsay statement about a fact is admitted for the
limited purpose of showing the declarant’s state of mind. There, without such
limitation, the hearsay statement would be evidence of two matters: the state of
mind of the declarant and the truth of the underlying matter asserted in the hearsay
statement. (Compare Evid. Code, § 1250, subd. (a) and People v. Noguera (1992)
4 Cal.4th 599, 620-621.) Here, defendant’s state of mind — his desire to tell the
truth — simply was the only matter at issue. That the jury could infer from
defendant’s statement of his state of mind that he acted in accordance with that
mental state does not change the “limited” nature of the admitted evidence itself.
21
Although the trial court’s brief statement of its reasons for allowing the use
of the prior testimony is cryptic, this may be exactly what the court meant when it
stated that “some of the questions, at least, the jury could find . . . went to
substance . . . .”
54
admission of a hearsay statement as proof of “the declarant’s future conduct in
accordance with his or her expressed intent”].) Defendant’s own trial testimony
put the truthfulness of his testimony and his earlier confessions at issue. There
was nothing improper, therefore, in admitting the suppression-hearing testimony
to rebut his trial testimony or in allowing the jury to infer from this evidence that
defendant acted in accordance with his state of mind, and that his confessions to
the officers were truthful. Because there was no error in admitting the testimony
given at the suppression hearing, no violation of defendant’s constitutional rights
occurred. (See Partida, supra, 37 Cal.4th at pp. 434-435.)
b. Exclusion of List of Names in Sorensen’s Address Book
During the cross-examination of Lanciann Sorensen’s mother, Stephanie
Bradish, defense counsel inquired whether she “had any evidence that Lanciann
was sexually active at about the time of her disappearance.” The prosecution
objected on relevance grounds. A sidebar discussion was held, at which the
defense made an offer of proof that Bradish found a book containing a list of men
or boys with whom Sorensen had sexual relations. Defense counsel argued this
evidence showed Sorensen was sexually active and therefore it was more likely
she made the supposed unwelcome sexual advance toward defendant that caused
him to become enraged and strangle her. The trial court sustained the prosecutor’s
objection, subject to revisiting the issue outside the presence of the jury. At the
following noon recess, defendant clarified his offer of proof, contending a list of
the names and ages of 16 males found on a page in Sorensen’s address book was a
list of her sexual partners, and a police report prepared by Officer Valerie Miller,
who was investigating the initial missing person’s report, mentioned that Bradish
told Miller that Sorensen “kept a list of men she slept with.”
55
Bradish and Officer Miller then testified outside the presence of the jury
regarding the list. Bradish said she did not remember telling Miller there was a list
of men with whom Sorensen had had sexual relations. In fact, Bradish stated she
had no information about Sorensen’s sexual activity in general or about the
meaning of the list. Bradish did not find the address book until after Sorensen was
missing, and Sorensen never had mentioned a list of individuals with whom she
had had sexual relations. In Bradish’s opinion it was equally likely the list was, or
was not, a list of Sorensen’s sexual partners.
Officer Miller testified that after the missing person’s report was filed,
Bradish frequently furnished the officers with the names of individuals who might
have had information concerning Sorensen’s whereabouts. At some point there
was a discussion of Sorensen’s boyfriends and sexual partners, which Miller found
noteworthy because Sorensen was a minor. Miller did not know where Bradish
had obtained her information, but was under the impression Bradish “was working
off some reference to guide us.” It was Miller’s understanding that a list of
Sorensen’s boyfriends existed, and some of the names on this list were those of
persons with whom Sorensen had had sexual relations. Miller never saw an actual
list of names, and did not recognize the list of 16 names in Sorensen’s address
book as a list of boyfriends.
The trial court found that, even assuming the list was admissible under a
hearsay exception and did not constitute prohibited character evidence, defendant
had not established a sufficient foundation for its admission. The trial court
therefore sustained the prosecutor’s objection and excluded the proffered evidence
56
of Sorensen’s sexual activity. On appeal, defendant challenges the trial court’s
decision. We conclude the trial court did not err.22
“Of course, only relevant evidence is admissible. (Evid. Code, § 350.)
Sometimes the relevance of evidence depends on the existence of a preliminary
fact. [Citations.] The court should exclude the proffered evidence only if the
‘showing of preliminary facts is too weak to support a favorable determination by
the jury.’ [Citations.] The decision whether the foundational evidence is
sufficiently substantial is a matter within the court’s discretion.” (People v. Lucas
(1995) 12 Cal.4th 415, 466 (Lucas); see also Evid. Code, § 403, subd. (a)(1) [when
the relevance of proffered evidence depends upon the existence of a preliminary
fact, the proponent of the evidence has the burden of producing sufficient evidence
of that fact].)
Here, defendant failed to establish as preliminary facts that Bradish and
Officer Miller were competent to testify concerning Sorensen’s sexual history in
general or, specifically, the meaning of the list of names. At most, if one accepts
Miller’s testimony to the extent it conflicts with that of Bradish, Miller testified
only that she believed Bradish had a list of Sorenson’s boyfriends, some of whom
22
In his closing argument, the prosecutor asserted that defendant’s testimony
that Sorensen made an unannounced, unwelcome sexual advance was
unbelievable, and the evidence of Sorensen’s sexual activities with her boyfriend
Matthew Sklansky did not support any inference that she would attempt to have
oral sex with a stranger she had just met while hitchhiking. After the prosecutor
completed his summation, defendant asked the court to reopen the defense case to
present the previously excluded evidence of Sorensen’s other sexual activities, that
is, the list of 16 names. Defendant asserted the prosecutor exploited the exclusion
of the list when arguing that Sorensen would not have sex with a stranger. The
trial court denied the motion to reopen, because the prosecutor’s argument did not
change the circumstance that defendant had failed to establish the foundation for
admission of the list. For the same reasons we shall discuss, we conclude the trial
court also did not err in this regard.
57
had had sexual relations with Sorensen. There was no testimony from Miller that
the list in Sorensen’s address book was the presumed list of sexual partners, and
Bradish likewise testified she did not know the significance of the list, having
discovered it only after Sorensen was missing. In short, defendant failed to
establish as a preliminary fact that the list was what he claimed it to be. Rather,
defendant’s belief that the list of names chronicled Sorensen’s sexual partners was
only speculation. The list therefore was irrelevant, and the trial court properly
excluded it. (People v. Scheid (1997) 16 Cal.4th 1, 14 [trial court lacks discretion
to admit irrelevant evidence].) In addition, because Bradish testified she only
could guess with whom Sorensen may have been sexually involved and Officer
Miller also knew of no specifics, the two witnesses had no other relevant evidence
to present in that regard. Accordingly, the trial court did not err in excluding the
proffered evidence of Sorensen’s sexual activities.23
23
We note this evidence was not only irrelevant for lack of foundation, it also
properly was excluded because the inferences defendant wished to draw from the
list were entirely speculative. (People v. Babbitt (1988) 45 Cal.3d 660, 684
[“exclusion of evidence that produces only speculative inferences is not an abuse
of discretion”].) First, even if the list of 16 names in the address book was the list
Officer Miller had in mind, she testified that only “some” of the names were of
Sorensen’s sexual partners. This indefinite quantification provided no support for
the inference that Sorensen’s sexual history was “extensive,” which was the
primary basis for defendant’s claim that the list would corroborate his testimony
about her actions. Second, because the list provides no details of the relationships
Sorensen had with these individuals, it again would be speculation to infer from
the fact Sorensen had some unspecified sexual experiences (with some unknown
number of persons) that she would have behaved in the manner to which
defendant testified at trial. We also observe that the jury was made aware of the
circumstance that Sorensen was sexually active through Sklansky’s testimony, the
significance of which was discussed by counsel in the final arguments to the jury.
58
c. Exclusion of Evidence That Defendant’s Mother Was Sexually
Abused by Her Father
Prior to defendant’s mother being called as a witness in the defense case,
defendant notified the trial court he planned to introduce evidence establishing that
his mother had been sexually abused by her father — defendant’s grandfather —
when she was a young girl. Defendant argued this evidence would corroborate his
testimony that his mother sexually abused him, because Dr. Yarvis earlier had
testified about a correlation between a person’s being the victim of incest as a
child and later, as a parent, becoming the perpetrator of incest on his or her
children. The trial court sustained the prosecution’s objection on relevance
grounds, finding Dr. Yarvis’s testimony insufficient to establish the correlation
between being a victim of incest and becoming a perpetrator. Therefore, the
evidence of abuse inflicted by defendant’s grandfather was irrelevant. Defendant
contends on appeal the trial court erred and claims, as he did in the trial court, that
exclusion of this evidence violated his state and federal constitutional rights. We
conclude the trial court did not abuse its discretion in excluding this evidence, and
defendant’s constitutional rights were not violated.
As mentioned above, when a defendant has proffered evidence, the
relevance (and therefore the admissibility) of which depends upon the existence of
a preliminary fact, he or she bears the burden of producing sufficient evidence of
the preliminary fact. (Lucas, supra, 12 Cal.4th at p. 466; Evid. Code, § 403, subd.
(a)(1).) Sufficient evidence in this context means evidence strong enough to
“ ‘support a favorable determination by the jury.’ ” (Lucas, supra, 12 Cal.4th at
p. 466.) The determination of the existence, or nonexistence, of sufficient
evidence of a preliminary fact is committed to the sound discretion of the trial
court. (Ibid.)
59
Here, the preliminary fact at issue was whether there is an increased
probability a child whose parent subjected her to incest will as an adult inflict
similar abuse upon her own children. As the trial court pointed out, there is no
inherent logical connection between being a victim of incest and later engaging in
incest with one’s own children. Rather, proof of such a correlation would require,
as the trial court described it, some type of “scientific” support, for example,
medical, psychological, or statistical studies.
In arguing for admission of this evidence, defendant relied exclusively
upon the testimony of Dr. Yarvis to establish such a connection, but Yarvis’s
testimony was remarkably equivocal and limited. The entirety of the questions
and answers touching upon this subject, cross-examination included, comprises
less than one full page of the reporter’s transcript. During direct examination, the
following exchange occurred:
“Q [by defense counsel]: Just incidentally, is incestuous behavior by a
parent frequently associated with similar victimization of that parent when the
parent was a child?
“A [by Dr. Yarvis]: We’re really just beginning to study this area, so it’s
still one where more is not known than is known. [¶] There certainly appears to
be some evidence in the psychiatric literature that suggests that a parent who has
been either physically or sexually abused has a greater likelihood to inflict similar
abuse on their child than a parent who has not been so affected. But how much
more likely is not clearly known.
“Q: Okay. [¶] Is it an accurate and general statement that incest tends to
run in families?
“A: Well, on the basis of what I just said, I suppose you’d have to conclude
that. I hesitated because I said it is much more clear about physical abuse than it is
60
clear at this point about sexual abuse, although I think what you’ve just said is
probably correct.”
On cross-examination, the prosecutor asked Dr. Yarvis: “You would agree
with me, would you not, that all children who have been the subject of sexual
abuse do not become sexual abusers?” Dr. Yarvis replied: “Absolutely not.”24
The shortcomings of this testimony in establishing the preliminary fact at
issue are obvious. According to Dr. Yarvis, at the time of defendant’s trial, study
of the possibility of this correlation was just beginning, though there was “some”
evidence that “appear[ed]” to “suggest” a relationship existed. There was,
however, more not known than known, especially with regard to sexual abuse as
opposed to physical abuse. Moreover, even if a victim of incest were more likely
than another person to later engage in incest with her children, the increased level
of likelihood was “not clearly known.”
24
In the following question, Dr. Yarvis was asked whether he agreed that
“there is no cause and effect automatic relationship between a victim of child
molestation and a person becoming a violent rapist,” to which he answered, “You
mean a one-to-one causal effect? Absolutely not.” In light of the double negative
contained in some of the questions, although Dr. Yarvis’s negative answers, if
read literally, would express disagreement with the proposition stated in the
question, it seems clear that this was not the intent of the answer and that he, in
fact, was in agreement.
We also note that although the trial court read into the record this second
question and answer about violent rapists when discussing the issue of whether to
admit the evidence of incest between defendant’s mother and grandfather, this
testimony is not relevant to the question whether incest victims are more likely
than other persons to engage in incest with their own children. Both of the
prosecutor’s questions appear to have been intended to address the separate issue
of the effects upon defendant of the sexual abuse allegedly inflicted by his mother,
though the first question also was general enough to apply to abuse inflicted upon
defendant’s mother by her father.
61
Dr. Yarvis’s answer to the more abstract question concerning whether
incest “tends to run in families” was based upon the equivocal opinion discussed
in his prior response, not his knowledge of any separate statistical analysis of the
frequencies of incest within families. Thus, his response, “what you’ve just said is
probably correct,” was merely a restatement of the prior answer in a slightly
different context and did not add independent weight to the testimony.
On appeal, defendant cites other evidence of the asserted correlation, but
we evaluate the trial court’s exclusion of the proffered evidence based upon the
evidence before the court when it made its decision. (People v. Fairbank (1997)
16 Cal.4th 1223, 1249 [“Of course, we cannot consider on appeal evidence that is
not in the record”].) Defendant also cites, for the first time on appeal, the opinion
of the Supreme Court of Minnesota in State v. Cermak (Minn. 1985) 365 N.W.2d
238 (Cermak), in which the court rejected the appellant’s challenges, including
lack of foundation, to an expert’s testimony regarding the “intergenerational”
nature of incest. That case, however, is distinguishable and only serves to
reinforce our conclusion here.
In
Cermak, the expert testified concerning her own extensive research into
(and treatment of) families affected by incest, which at that time had spanned
several years and included her publication of a demographic study on the
characteristics of offenders, victims, and spouses. She unequivocally expressed an
opinion that incest was a learned behavior that was passed from one generation to
the next unless there was outside intervention. (Cermak, supra, 365 N.W.2d at
pp. 241-242.) This testimony stands in stark contrast to Dr. Yarvis’s statements,
which were exceedingly tentative in expressing the opinion that a correlation
existed, and lacked citation to the sources of the information upon which his
62
opinion — such as it was — was based, other than a general reference to the
“psychiatric literature.”25
Based upon the evidence presented by defendant at trial, we conclude, as
the trial court found, that defendant failed to establish as a preliminary fact that a
correlation exists between being a victim of incest as a child and later as a parent
engaging in incest with her children. The trial court therefore did not abuse its
discretion in excluding as irrelevant the proffered evidence of the incestuous
relationship between defendant’s mother and grandfather. Because we conclude
the proffered evidence was irrelevant, and properly was excluded as such, it
follows defendant’s constitutional rights were not violated. (People v. DeSantis
(1992) 2 Cal.4th 1198, 1249-1250 [exclusion of irrelevant evidence does not
violate a defendant’s due process, confrontation, or 8th Amend. rights]
(DeSantis).)
2. Defendant’s Absence During His Mother’s Testimony
Defendant was voluntarily absent during the second part of the guilt phase
testimony of his mother. He contends on appeal his absence violated his federal
and state constitutional rights, as well as state statutory law.
“As a constitutional matter, a criminal defendant accused of a felony has
the right to be present at every critical stage of the trial. (Illinois v. Allen (1970)
397 U.S. 337, 338.) The right derives from the confrontation clause of the Sixth
Amendment to the federal Constitution and the due process clauses of the Fifth
25
Our discussion of Cermak does not imply that evidence similar to the
expert’s opinion in that case would be sufficient to establish a correlation between
victimization and later becoming a perpetrator. We address the evidence in that
case only to highlight the equivocal nature of Dr. Yarvis’s opinion in the present
case.
63
and Fourteenth Amendments, and article I, section 15 of the California
Constitution.” (Frye, supra, 18 Cal.4th at p. 1010.) A critical stage of the trial is
one in which a defendant’s “ ‘absence might frustrate the fairness of the
proceedings’ (Faretta v. California (1975) 422 U.S. 806, 819, fn. 15), or
‘whenever his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge’ (Snyder v. Massachusetts (1934) 291
U.S. 97, 105-106).” (People v. Rodriguez (1998) 17 Cal.4th 253, 260
(Rodriguez).) A defendant may waive his or her constitutional right to be present
during a critical stage, provided the waiver is knowing, intelligent, and voluntary.
(People v. Moon (2005) 37 Cal.4th 1, 20-21.)
Under California statutory law, section 1043, subdivision (a) provides that
“[e]xcept as otherwise provided in this section, the defendant in a felony case shall
be personally present at the trial.” Although, pursuant to section 1043, subdivision
(b)(2), a felony trial that has commenced generally may continue if the defendant
subsequently is voluntarily absent, this exception does not apply in capital cases.
(§ 1043, subd. (b)(2).) Similarly, section 977, subdivision (b)(1) requires, in part,
that defendants charged with a felony must be present “during those portions of
the trial when evidence is taken before the trier of fact.” Under that statute, a
defendant is not permitted to waive his or her presence at that stage of the
proceedings. (§ 977, subd. (b)(1); see also People v. Weaver (2001) 26 Cal.4th
876, 967-968 (Weaver).) Thus, under the statutes, a capital defendant generally
must be present during the trial when evidence is taken. A defendant seeking
reversal of a judgment based upon statutory error, however, must demonstrate
prejudice under Watson, supra, 46 Cal.2d at page 836 — that it is reasonably
probable a result more favorable to the defendant would have been reached in the
absence of the error. (Weaver, supra, 26 Cal.4th at p. 968.)
64
After defendant testified, defense counsel announced they would re-call
defendant’s mother as a witness in order to examine her concerning the supposed
incestuous relationship she had with defendant and about her exhibitionism.
Outside the presence of the jury, defense counsel notified the court that defendant
was “experiencing extreme stress at the prospect of hearing his mother testify
concerning these subjects,” and instead wished to voluntarily absent himself
during her testimony. Counsel stated they had advised defendant of his right to be
present and his right to waive that right, and of the possible advantages and
disadvantages of his not being present. The court then directly questioned
defendant whether he had sufficiently discussed the matter with his attorneys and
still wished to waive his presence. Defendant said he had, and wanted to absent
himself from that testimony.
The trial court, finding defendant knowingly and voluntarily had waived his
right to be present, granted his request to be absent. Before defendant’s mother
testified, the court explained to the jury that due to the nature of the expected
testimony, the court had granted defendant’s request to exercise “his right” to be
absent during the testimony. Defendant returned to the courtroom after his mother
completed her testimony.
Defendant first contends that in a capital case the defendant’s presence
during the taking of testimony is so fundamental to the fairness of the proceeding
that he or she should not be permitted to waive the constitutional right to be
present, even if done so knowingly, intelligently, and voluntarily. We have
rejected this very claim (People v. Price (1991) 1 Cal.4th 324, 405), and
defendant’s argument, which relies primarily upon three nearly 200-year-old
United States Supreme Court cases, the relevant parts of which the high court
itself has rejected as “broad dicta” (Illinois v. Allen, supra, 397 U.S. at pp. 342-
343 (Allen)), provides no compelling reason to revisit the issue. (See also People
65
v. Davis (2005) 36 Cal.4th 510, 531; Weaver, supra, 26 Cal.4th at p. 966; People
v. Jackson (1996) 13 Cal.4th 1164, 1209-1210; Campbell v. Wood (9th Cir. 1994)
18 F.3d 662, 672 (en banc) [“There is no principled basis for limiting to noncapital
offenses a defendant’s ability knowingly, voluntarily, and intelligently to waive
the right of presence. Nor do we find logic in the proposition that a right that may
be waived by disruptive behavior cannot be waived by an affirmative petition
freely made and based on informed judgment.”].)
Defendant correctly contends that despite his valid waiver of his
constitutional rights to be present during the testimony in question, his absence
violated sections 977 and 1043. We must stress that a defendant’s statutory ability
to waive his presence in a capital case is more circumscribed than the associated
ability to waive his constitutional rights. As we previously have observed, “ ‘[t]he
Legislature evidently intended that a capital defendant’s right to voluntarily waive
his right to be present be severely restricted.’ ” (Weaver, supra, 26 Cal.4th at
p. 968.)
Even assuming defendant has not forfeited his appellate claim of statutory
error by failing to raise the claim in the trial court (cf. People v. Vera (1997) 15
Cal.4th 269, 276-281 (Vera) [claim of deprivation of statutory right to jury trial on
prior-prison-term sentence enhancement was not a claim of the deprivation of a
fundamental constitutional right that may be raised for the first time on appeal]),
defendant nonetheless has not demonstrated that such statutory error warrants
reversal, because it is not reasonably probable that without the error, the result of
the trial would have been more favorable to him. Defendant admitted killing the
victims, and the jury rejected his version of the events — that he did so in
uncontrolled fits of rage and did not form the intent to have sexual relations with
his victims until after they were dead — in less than one full day of deliberations.
In short, the guilt phase evidence against him was overwhelming. Although,
66
unlike the situation in Weaver, the proceedings as to which defendant was absent
involved the testimony of a live witness, defendant already had testified on the
subjects about which his mother was to be examined. Indeed, she was asked
primarily whether defendant’s and other witnesses’ testimony was true, and she
responded in the negative. Defendant’s attorneys obviously were quite familiar
with what defendant possibly might add to the examination, and there is no
evidence in the record that defendant might have assisted counsel in some other
manner had he been present. Defendant has not established that a different
outcome at this phase of the trial would have been reasonably probable had he
been forced to remain in the courtroom against his will. (See also Weaver, supra,
26 Cal.4th at p. 968 [noting it was possible defendant’s absence, which was based
upon his fear of becoming overly emotional in the presence of the jury, helped his
case rather than prejudiced it].)26
26
During his penalty phase argument, the prosecutor asserted that defendant’s
absence during his mother’s testimony demonstrated that his testimony about the
murders was false. Defendant cites the prosecutor’s comment in support of
defendant’s claim that he was prejudiced by his absence. (Cf. People v. Visciotti
(1992) 2 Cal.4th 1, 82 (Visciotti) [references by counsel to improperly admitted
evidence, although not misconduct, “may be considered in determining the
prejudicial effect of the error in admitting evidence”].) It is not reasonably
probable that the prosecutor’s comments, though strongly worded, had an effect
on the outcome of the penalty phase. At that point in the trial, the jury already had
determined that defendant’s version of the murders was false, because it convicted
him as charged, so the likely impact of the prosecutor’s comment was minimal.
Moreover, the aggravating evidence against defendant at the penalty phase was
overwhelming. Thus, the prosecutor’s comment during the penalty phase
argument did not add any significant prejudice to the statutory error in allowing
defendant to be absent during his mother’s guilt phase testimony. To the extent
defendant contends the comment might be considered penalty phase prosecutorial
misconduct, that issue is discussed post, in part II.E.4.d.
67
Defendant,
relying
upon
Hicks v. Oklahoma (1980) 447 U.S. 343, 346,
contends the statutory violation deprived him of his federal constitutional
procedural due process rights because, he argues, he was denied his “liberty
interest” in the proper application of state law. Sections 977 and 1043, however,
do not create a liberty interest for the benefit of defendants of the type involved in
Hicks. (Cf. People v. Breverman (1998) 19 Cal.4th 142, 170-172 (Breverman)
[distinguishing Hicks based upon the different right created by the state-law
provision at issue]; Vera, supra, 15 Cal.4th at pp. 279-280 [deprivation of
statutory right to jury trial on sentencing enhancement “does not constitute a claim
of federal constitutional dimension” under Hicks].) Indeed, as a practical matter,
the statutes here at issue deprive a capital defendant of his or her ability to
voluntarily waive the constitutional right to be present, and require him or her to
remain in the courtroom. We cannot accept the premise that the federal
constitutional right of due process was implicated in this case by an error of state
law that afforded defendant something he asked for — and which was permissible
under the state and federal Constitutions — but should not have received under
state statutory law, and, moreover, that did not directly implicate his interest in
freedom from restraint, as did the error in Hicks. (See Cabana v. Bullock (1986)
474 U.S. 376, 387, fn. 4 [“In Hicks, we held only that where state law creates for
the defendant a liberty interest in having the jury make particular findings, the Due
Process Clause implies that appellate findings do not suffice to protect that
entitlement”], overruled on other grounds in Pope v. Illinois (1987) 481 U.S. 497,
502, fn. 7; Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21 [“We have long
recognized that a ‘mere error of state law’ is not a denial of due process.
[Citation.] If the contrary were true, then ‘every erroneous decision by a state
court on state law would come [to this Court] as a federal constitutional question.’
[Citations.]”].)
68
3. Asserted Insufficiency of the Evidence
a. Evidence of Attempted Rape of Sorensen
At the close of the prosecution’s case-in-chief, defendant moved to dismiss,
under section 1118.1, the charge of attempted forcible rape of Sorensen and the
associated attempted-rape felony-murder charge and special circumstance
allegation on the ground of insufficiency of the evidence. The trial court denied
the motion. On appeal, defendant again contends the evidence was legally
insufficient to support his convictions and the special circumstance finding. He is
incorrect.
Our role in reviewing such a challenge is limited. “In reviewing a
challenge to the sufficiency of the evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution and/or the due process
clause of article I, section 15 of the California Constitution, we review the entire
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence — that is, evidence that is reasonable, credible, and
of solid value — from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” (People v. Cole (2004) 33 Cal.4th
1158, 1212.) “The appellate court presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.”
(People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).)
Defendant’s challenge to the sufficiency of the evidence of the attempted
rape of Sorensen consists primarily of viewing various items of evidence in
isolation and arguing each could be viewed as pointing to his innocence of the
charge rather than his guilt. Even if defendant’s premise is correct, this is not
persuasive on the issue we must address: whether no rational juror could have
drawn the opposite inference from the evidence as a whole. Defendant also cites
several past opinions in which we and the Courts of Appeal have found evidence
69
insufficient to support a conviction for a crime involving sexual assault.
Reviewing the sufficiency of evidence, however, necessarily calls for analysis of
the unique facts and inferences present in each case, and therefore comparisons
between cases are of little value. (People v. Thomas (1992) 2 Cal.4th 489, 516.)
Except as specifically mentioned below, the cases cited by defendant are not
particularly helpful in reviewing the facts of the present case.
Conviction of the crime of attempted forcible rape requires proof the
defendant formed the specific intent to commit the crime of rape and performed a
direct but ineffectual act, beyond mere preparation, leading toward the
commission of a rape. (§ 21a; People v. Carpenter (1997) 15 Cal.4th 312, 387
(Carpenter).) The elements of the crime of forcible rape27 are “an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator . . . [¶]
. . . [¶] [w]here it is accomplished against a person’s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the
person or another.” (§ 261, subd. (a)(2).)28 There is no dispute defendant and
Sorensen were not spouses. The following evidence and the reasonable inferences
that could be drawn from it are sufficient to prove the remaining elements of the
crime and the special circumstance in question.29
27
Rape of a spouse is separately punishable under section 262.
28
Under section 663, a defendant can be convicted of an attempt to commit a
crime even though the crime, in fact, was completed. Further, evidence tending to
prove that the crime was completed, even though not absolute proof of the crime
of attempt, gives rise to a reasonable inference that the perpetrator intended to
commit that crime. (Cf. People v. Colantuono (1994) 7 Cal.4th 206, 218, fn. 9
[evidence of a completed battery is relevant in determining whether the defendant
committed an assault].)
29
To avoid the possibility of confusion, we emphasize that defendant was
charged with attempted forcible rape, which, unlike the crime of forcible rape, is a
specific intent crime. (See People v. DePriest (2007) 42 Cal.4th 1, 48.)
(footnote continued on next page)
70
The incident occurred at night near a secluded highway exit in a rural area,
beyond sight of passing motorists, a place and time defendant might attempt a rape
more readily than in a place where discovery or intervention was a stronger
possibility. The victim was a small 15-year-old girl, whereas defendant was a 21-
year-old man who described himself as quite strong for his size, giving rise to a
reasonable inference he knew that by physical force or threats of harm he could
compel Sorensen to acquiesce in any demand he might make. In addition to the
circumstances that defendant and Sorensen had first met that day and that
Sorensen had a boyfriend, earlier that very evening in her telephone call to her
boyfriend, Sorensen said she would not have sexual intercourse with him because
she was menstruating. These facts lead to a reasonable inference that Sorensen
would not have willingly agreed to have sexual relations with a relative stranger
on a cold night, on the ground, near a highway exit.
The victim was found nude and with her arms bound very tightly behind
her back. Although, as we have stated in cases such as those cited by defendant,
the circumstance of the victim’s being found partially or wholly unclothed is not
by itself sufficient to prove a rape or an attempted rape has occurred, such a fact is
not irrelevant and is one of the relevant circumstances. Moreover, the
combination of the nude state of Sorensen’s body and the presence of physical
restraint in this case provides stronger evidence that a forcible rape or attempted
rape occurred than where the body simply is unclothed. Additionally, the jury
(footnote continued from previous page)
Accordingly, in the following discussion, our references to the specific intent to
commit rape are made in the context of discussing the sufficiency of the evidence
of the charges in the present case, and do not implicate the basic distinction
between the intent elements of attempted rape (specific intent) and rape (general
intent).
71
reasonably could infer that the absence of signs of a struggle — such as trauma to
Sorensen’s body or damage to her clothing — was the result of her surrender to
defendant’s demands in the hopes of surviving her ordeal, rather than proof she
was a willing participant or was dead when she was undressed.
Also, unlike several of the cases cited by defendant, here there was no
evidence tending to show a sexual assault did not occur. When a victim is
discovered a relatively short time after the crime, it is more likely the crime scene
and the victim’s body will show evidence of sexual assault — such as trauma to
the body or sexual organs, or the presence of the perpetrator’s bodily fluids — if
such an assault occurred. An absence of such evidence in that type of case may be
strong evidence the perpetrator did not have or intend to have sexual contact with
the victim, which may tend to outweigh other facts and inferences, rendering the
evidence of sexual assault legally insufficient. (See, e.g., People v. Johnson
(1993) 6 Cal.4th 1, 39, overruled on another ground in Rogers, supra, 39 Cal.4th
at p. 879; People v. Anderson (1968) 70 Cal.2d 15, 22; People v. Craig (1957) 49
Cal.2d 313, 317.) Here, by contrast, the evidence did not tend to eliminate a
sexual assault; it simply was inconclusive due to the nature of the crime scene and
the advanced state of decomposition of Sorensen’s body.
Finally, and perhaps most importantly, defendant’s own admissions support
the conclusion there was sufficient evidence for a rational trier of fact to find he
attempted to rape Sorensen.30 Defendant told the officers he “had sex” with
30
Of course, the jury is charged with evaluating the credibility of witness
testimony and out-of-court statements such as party admissions, and on appeal we
may not substitute our determination as to credibility. Indeed, we must view the
evidence in the light most favorable to the verdict and presume the existence of
each fact that a rational juror could have found proved by the evidence. (People v.
Smith (2005) 37 Cal.4th 733, 739.) We therefore need not reweigh the credibility
of defendant’s various versions of the Sorensen murder, and shall address only
(footnote continued on next page)
72
Sorensen and ultimately strangled her because he “was scared.” The jury
reasonably could infer defendant was frightened because he just had forcibly raped
Sorensen and feared being reported to the authorities. In addition, defendant told
the officers that, while in a remote location at night, he had forced Garcia to have
sex with him despite her resistance, and Garcia similarly later was found dead,
nude, and with her hands tied behind her back. This was a significant prior act the
jury could consider highly relevant in determining defendant also had the intent to
rape Sorensen. (See Evid. Code, § 1101, subd. (b).)
Defendant argues that even if the evidence adequately supports a finding he
attempted to commit some sexual assault upon Sorensen, insufficient evidence
existed for the jury to determine he specifically intended to have vaginal
intercourse, which, as we stated in People v. Holt (1997) 15 Cal.4th 619, 676
(Holt), is required for the commission of a rape. He relies upon our decision in
People v. Raley (1992) 2 Cal.4th 870, 889-891 (Raley), in which we concluded the
evidence was insufficient to sustain a guilty verdict on a charge of attempted
forcible oral copulation. As mentioned above, however, the facts of other cases,
such as Raley, are not particularly helpful in evaluating the sufficiency of the
evidence in this case. Here, the victim was found in a remote area, dead, nude,
and bound; defendant admitted having had sex with her; evidence of the nature of
the sexual assault was inconclusive due to the passage of time before her body was
discovered; and defendant confessed to raping and killing another young woman
in similar circumstances not long before this incident. (See, e.g., People v.
Holloway (2004) 33 Cal.4th 96, 138-139.) That defendant also may have had the
(footnote continued from previous page)
those statements that the jury could have found credible and reasonably indicative
of defendant’s guilt.
73
intent to sodomize the victim, as one might surmise from his trial testimony, does
not mean the jury rationally could not have inferred from the evidence as a whole
that he had the specific intent to rape Sorensen and took a direct step beyond mere
preparation toward effectuating his intent. Such a finding was not based upon
suspicion and speculation, as defendant argues, but upon reasonable inferences
from the evidence and, as such, was supported by legally sufficient evidence.
Because sufficient evidence supported the jury’s verdict of guilt of the attempted
rape of Sorensen, we reject defendant’s claim that the associated first degree
murder conviction must be reversed and the attempted-rape special circumstance
finding set aside.
b. Evidence of Premeditation and Deliberation
Defendant next claims the evidence was insufficient to uphold the jury’s
first degree murder verdicts on a theory of premeditated and deliberated murder.
“We need not consider this claim since reversal is not necessary when the court
can determine from the record that the verdict rested on a theory which is
supported by sufficient evidence. (People v. Hernandez (1988) 47 Cal.3d 315,
351.)” (Holt, supra, 15 Cal.4th at p. 671.) We properly can, and do, make that
determination here.
The court correctly instructed the jury on theories of both first degree
felony murder and premeditated, deliberated murder. We previously have
concluded there was sufficient evidence to support a finding that defendant
attempted to rape Sorensen, and defendant has not challenged on appeal the
sufficiency of the evidence supporting his conviction for attempting to rape
Garcia. Indeed, the evidence of the latter crime, which is strikingly similar to that
supporting the Sorensen verdict (and, in view of defendant’s admissions to the
officers, even stronger), is sufficient to support the verdict on the Garcia murder
74
charge. In addition, adequate evidence existed for a rational jury to find the
murders were committed during the commission of the attempted rapes, so as to
support felony-murder convictions under section 189. (See People v. Hernandez,
supra, 47 Cal.3d at p. 348 [“the focus is on the relationship between the
underlying felony and the killing and whether the felony is merely incidental to
the killing, an afterthought”].)
Further, the jury’s verdicts convicting defendant of first degree murder
were accompanied by true findings on the special circumstance allegations that he
committed the murders in the commission of the attempted rapes. Thus, the
present case is similar to one “in which the murder verdict did not indicate the
theory on which the defendant was convicted, but the jury also returned special
circumstances findings on rape . . . . (See also People v. Boyd (1985) 38 Cal.3d
762, 770 [‘Those [attempted-robbery special-circumstance] findings make it clear
that whatever the jurors thought about premeditation, they agreed upon all of the
elements necessary for a verdict of first degree murder based on a felony-murder
theory. Consequently, any error in instructing on premeditation could not have
prejudiced defendant.’].)” (Holt, supra, 15 Cal.4th at p. 671.) We therefore need
not evaluate the sufficiency of the evidence of premeditation and deliberation to
uphold the jury’s first degree murder verdicts in this case. (See also Young, supra,
34 Cal.4th at pp. 1177-1178.)
4. Asserted Instructional Errors
a. Assault as a Lesser Included Offense of Attempted Rape
Defendant contends the evidence presented at trial was sufficient for the
jury to find that, because of his intoxicated state, he was unable to form the
specific intent to commit rape, precluding conviction on the attempted rape
charges. But because his intoxication cannot negate the general intent required for
75
simple assault, defendant argues, the jury should have been instructed on the
offense of assault as an “intoxication based” lesser included offense of attempted
rape. Although defendant did not request the trial court to instruct the jury on the
crime of assault as a lesser included offense, he claims on appeal the court violated
its alleged duty to so instruct on its own motion, and this failure violated his state
and federal constitutional rights. (See Breverman, supra, 19 Cal.4th 142; Beck v.
Alabama (1980) 447 U.S. 625 (Beck).) We disagree.
It is clear, as a matter of state constitutional law, that trial courts are
required to give instructions on all lesser offenses necessarily included within the
filed charges, when there is substantial evidence supporting a conviction for a
lesser offense, regardless of whether the parties request such instructions or even
oppose them. (Breverman, supra, 19 Cal.4th at pp. 154-155.) As we explained in
Breverman, however, the related federal constitutional right is more
circumscribed, prohibiting only in capital cases those situations in which the state
has created an “artificial barrier” preventing the jury from considering a noncapital
verdict other than a complete acquittal and thereby calling into question the
reliability of the outcome. (Id. at pp. 166-168, citing Beck, supra, 447 U.S. 625,
Schad v. Arizona (1991) 501 U.S. 624, and Hopkins v. Reeves (1998) 524 U.S. 88
(Reeves).)
Defendant contends the trial court’s failure to give an assault instruction
violated the rule of Beck, because the jury was forced into an “all-or-nothing”
situation in which the choice on the attempted rape charges essentially was
between the death penalty and acquittal, due to the felony-murder rule and the
attempted-rape special circumstance allegations. (See Beck, supra, 447 U.S. at
p. 637.) For several reasons, defendant’s assertion is incorrect.
First, the jury was not forced to choose between convicting defendant of
crimes he did not commit (assertedly, the attempted rapes and associated first
76
degree felony murder and attempted-rape special circumstance findings) and a
complete acquittal. The jury had the option of finding that defendant did not form
the intent to have sexual relations with the victims until after they were dead (and
therefore of acquitting him of the attempted rape charges), but nonetheless of
finding — if this was supported by sufficient evidence — that defendant murdered
the victims with premeditation and deliberation, as well as the associated multiple-
murder special circumstance, rendering him still eligible for the death penalty. In
addition, the jury had the option of finding him guilty of some lesser degree of
noncapital homicide for one or both of the murders, instead of issuing a complete
acquittal.
Second, as discussed in Reeves in the context of Nebraska law, there is a
structural difference in California’s death penalty statute distinguishing this case
from Beck. Under Alabama law applicable to Beck’s trial, if the jury convicted
the defendant of capital murder, it was required to impose the death penalty, a
circumstance that “threatened to make the issue at trial whether the defendant
should be executed or not, rather than ‘whether the State ha[d] proved each and
every element of the capital crime beyond a reasonable doubt.’ ” (Reeves, supra,
524 U.S. at p. 98.) In California, as under Nebraska law, a guilty verdict of first
degree murder with true special circumstance findings does not require the jury
automatically to set defendant’s punishment at death. Defendant’s jury was
instructed that if its verdict at the conclusion of the guilt phase of the trial made
defendant eligible for the death penalty, it then would consider whether a sentence
of death or life imprisonment without the possibility of parole should be imposed.
The jury, therefore, when considering defendant’s guilt or innocence, was not
placed in the position of determining whether or not he should be executed instead
of whether his guilt had been adequately proven.
77
Thus, for both these reasons, there is no likelihood the lack of an instruction
on assault as a lesser included offense of attempted rape affected the reliability of
the jury’s verdict, in violation of defendant’s federal constitutional rights. (See
Reeves, supra, 524 U.S. at p. 95.)
Additionally, there is a third reason why defendant’s federal constitutional
claim must fail, also disposing of his state constitutional claim: assault is not a
lesser included offense of attempted rape in the present case. (Reeves, supra, 524
U.S. at p. 96; Breverman, supra, 19 Cal.4th at p. 154.) We apply the statutory
elements and accusatory pleading tests to determine whether one offense is a
lesser included offense of another. (People v. Reed (2006) 38 Cal.4th 1224, 1227-
1228 (Reed).) First, under the elements test, we look to the two statutes to
determine whether in the defendant’s commission of the greater offense, his or her
actions necessarily would satisfy all of the elements of the lesser offense. (Ibid.)
One who has committed the crime of attempted rape has not necessarily
committed an assault, because an essential element of assault — the present ability
to inflict harm — is not necessarily present in an attempted rape.
In order to commit an attempted rape, a person must form the intent to rape
and perform a direct but ineffectual act, beyond mere preparation, leading toward
commission of a rape. (§ 21a; Carpenter, supra, 15 Cal.4th at p. 387.) An assault
is “an unlawful attempt, coupled with a present ability, to commit a violent injury
on the person of another.” (§ 240.) Although there is no doubt that a rape is a
violent injury to another, an attempted rape is not necessarily also an assault,
because the attempt to commit a rape does not require that the perpetrator ever
progress to the point of having the present ability to commit a rape. As we
previously have noted, although in a criminal attempt the underlying conduct
completing the attempt may be remote from the completion of the intended crime,
in an assault that underlying conduct must immediately precede the commission of
78
the violent injury; that is, “ ‘ “[t]he next movement would, at least to all
appearance, complete the battery.” ’ ” (People v. Williams (2001) 26 Cal.4th 779,
786; see ibid. [“Indeed, our criminal code has long recognized this fundamental
distinction between criminal attempt and assault, by treating these offenses as
separate and independent crimes”]; cf. People v. Licas (2007) 41 Cal.4th 362,
368-369 [assault with a firearm (§ 245, subd. (a)(2)) is not a lesser included
offense of shooting at another person from a vehicle (§ 12034, subd. (c)), because
the latter offense does not include the element that the shooter have the present
ability to inflict a violent injury on the target]; People v. Marshall (1997) 15
Cal.4th 1, 38-39 [the crime of battery (§ 242) — an unlawful touching of the
victim — is not a lesser included offense of attempted rape, because the victim of
attempted rape might never be touched].)31 Because a person who has committed
an attempted rape has not necessarily committed an assault, assault is not a lesser
included offense of attempted rape under the elements test.
Second, in the present circumstances, assault also is not a lesser included
offense under the accusatory pleading test. Nothing in the information’s charges
of attempted forcible rape alleged defendant possessed the present ability to inflict
injury upon the victims. (Cf. Reed, supra, 38 Cal.4th at p. 1228 [charge of being a
felon in possession of a firearm was a lesser included offense of the charges of
carrying a concealed firearm and carrying a loaded firearm in a public place under
the accusatory pleading test (but not the elements test) when the information
alleged in all counts that defendant was a convicted felon].)
31
Indeed, assault with intent to commit a particular crime is considered a
more aggravated crime than mere attempt to commit that crime, because in the
former there exists the present ability to commit the crime. (People v. Ghent
(1987) 43 Cal.3d 739, 757.)
79
Because under the elements and accusatory pleading tests assault is not a
lesser included offense of the charges that defendant attempted to forcibly rape
Garcia and Sorensen, the trial court had no duty on its own motion to instruct on
the crime of assault.
b. Voluntary Intoxication
Defendant
contends
the
trial court was required to instruct concerning the
effect of voluntary intoxication on his ability to form the mental states required for
the murder and attempted rape charges, despite defendant’s failure to request such
an instruction. An instruction on the significance of voluntary intoxication is a
“pinpoint” instruction that the trial court is not required to give unless requested
by the defendant. (People v. Saille (1991) 54 Cal.3d 1103, 1120 (Saille); see also
People v. Clark (1993) 5 Cal.4th 950, 1022 (Clark).) Defendant raises three
arguments why Saille is not controlling in his case, none of which we find
persuasive.
Defendant first asserts because the trial court had a duty to instruct the jury
on its own motion concerning the crime of assault as an “intoxication based”
lesser included offense of the attempted rape charges, it also had an associated
duty to instruct the jury concerning how voluntary intoxication could negate
defendant’s ability to form the intent to rape, such that the jury could find he
committed only an assault. Because, however, we have concluded the trial court
had no duty to instruct on the crime of assault as a lesser included offense, it
accordingly had no duty to clarify how the jury might reach a verdict of assault
through a finding of voluntary intoxication.
Second,
defendant
contends the holding of Saille cannot be applied
retroactively to his case because of constitutional ex post facto concerns. We
previously have rejected this claim in People v. Hughes (2002) 27 Cal.4th 287,
80
342 (Hughes), and defendant advances no persuasive reason why we should
reconsider that conclusion.
Third, defendant essentially argues the trial court was required to instruct
on voluntary intoxication because other instructions regarding the mental states
required for the offenses and other potential mental impairments reducing his
culpability were incomplete and misleading absent an instruction concerning
voluntary intoxication. Were we to accept defendant’s argument, we would, in
effect, overrule our decision in Saille. If the defendant in a particular case believes
voluntary intoxication is an issue that could affect the jury’s determination of the
mental state elements of the charged crimes, he or she must request an instruction
on that subject. Any lack of clarity regarding the consideration, if any, the jury
should give to evidence of voluntary intoxication, in the absence of a request for
an instruction on this subject, is of the defendant’s doing, and on appeal he cannot
avail himself of his own inaction. (People v. San Nicolas (2004) 34 Cal.4th 614,
669-670 (San Nicolas).)
For these reasons, the trial court was not required, in the absence of a
request from defendant, to instruct the jury regarding the effect of voluntary
intoxication on the various mental state elements of the charged offenses.
c. Mutilation of Human Remains as a Lesser Related Offense of
Attempted Rape
Defendant
contends
his
state and federal constitutional rights were violated
by the trial court’s denial of his request for an instruction on the crime of unlawful
mutilation of human remains, as then defined in section 7052 of the Health and
Safety Code, as a lesser offense related to the charges of attempted rape.32 He
32
The requested instruction read: “Every person who mutilates any human
remains without authority of law is guilty of a felony. [¶] As used in these
(footnote continued on next page)
81
argues he was entitled under the California Constitution to such an instruction
pursuant to our decision in People v. Geiger (1984) 35 Cal.3d 510 (Geiger), and
that our subsequent decision in People v. Birks (1998) 19 Cal.4th 108 (Birks),
overruling Geiger, should not be retroactively applied in the present case, because
defendant relied upon the state of the law under Geiger in presenting his case at
trial. Defendant also claims refusal of this instruction violated his federal
constitutional right to a jury instruction on the defense theory of the case.
Defendant’s contentions are without merit.33
At the time of defendant’s crimes in 1986, Health and Safety Code
section 7052 provided, in part, “Every person who willfully mutilates, disinters, or
removes from the place of interment any human remains, without authority of law,
is guilty of a felony.” (Health & Saf. Code, § 7052, added by Stats. 1939, ch. 60,
p. 672.) Defendant argues this is an offense “related” to the attempted rape
charges in this case, because he testified he did not form the intent to have sexual
intercourse with Garcia and Sorensen until after they were dead, and therefore did
not attempt to rape the victims but instead mutilated their remains.
Under the now overruled holding of Geiger, defendants, upon their request,
were entitled to jury instructions on offenses that were not “necessarily included”
in the charged offense, but instead were merely “related,” if (1) there was some
(footnote continued from previous page)
instructions, mutilation of human remains may be accomplished by sexual
intercourse or other sexual conduct with human remains.”
33
Because of the error — discussed ante, in part II.A.2 — in not transcribing
all of the discussions related to jury instructions, the record contains only the trial
court’s brief summary of its ruling denying defendant’s request for this instruction.
We therefore will assume defendant adequately preserved for appeal his
constitutional challenges to the trial court’s failure to give this instruction.
82
basis for a finding of guilt of the related offense, (2) the offenses were closely
related such that the requested instruction on the related offense would have been
relevant to determining whether the defendant committed the charged offense, and
(3) the defendant’s theory of the case was consistent with his or her guilt of the
related offense. (Geiger, supra, 35 Cal.3d at pp. 530-531.) In Birks, however, we
overruled the holding of Geiger that a defendant’s unilateral request for a related-
offense instruction must be honored over the prosecution’s objection. (Birks,
supra, 19 Cal.4th at p. 136.) We also concluded this change in the law generally
should be applied retroactively. (Id. at pp. 136-137.)
Defendant argues, however, that Birks should not be applied in the present
case, because he relied upon the state of the law under Geiger in presenting his
defense. We are not persuaded. In Birks, we observed that although the defendant
in that case had not raised any claim of reliance upon Geiger in presenting his
case, such a claim of reliance could not “easily” have been made by him or any
other defendant, in view of the circumstance that all defendants have a strong
motivation to vigorously challenge the sufficiency of the evidence of the charged
offenses regardless of whether an instruction on a lesser related offense is given to
the jury. (Birks, supra, 19 Cal.4th at p. 137.) We did not address whether a
defendant under circumstances similar to those in the present case could prove
reliance upon Geiger and thereby preclude retroactive application of Birks.
Moreover, in the present case, because the prosecution’s theory was that the
murders were committed to facilitate the rapes and defendant’s avoidance of
detection, the presentation of defendant’s version that he did not form the intent to
have sexual relations with the victims until after they were dead was essential to
the defense’s attempt to rebut the prosecution’s case. This is true regardless of
whether the jury might have been instructed that it could find defendant guilty of
mutilation of human remains instead of attempted rape. Indeed, as defendant
83
himself points out, defense counsel committed themselves to the presentation of
the defense theory of the case in the opening statement, before the trial court
resolved the issue of whether the related-offense instruction would be given.
Defendant has not shown he would have conducted his defense any differently had
he known he was not entitled to an instruction on the allegedly related offense of
mutilation of human remains. We therefore conclude Birks retroactively applies in
this case and Geiger is not controlling. Accordingly, the trial court did not commit
state constitutional error in refusing to give this instruction.34
Nor did the trial court’s refusal to give the requested instruction violate
defendant’s federal constitutional rights. As we discussed in Birks, there is no
federal constitutional right of a defendant to compel the giving of lesser-related-
offense instructions. (Birks, supra, 19 Cal.4th 124, citing Reeves, supra, 524 U.S.
88.) Further, except for the limited situation in a capital case in which the state
has created an artificial barrier to the jury’s consideration of an otherwise available
noncapital verdict, there is no federal constitutional right to instruction on lesser
necessarily included offenses. (Breverman, supra, 19 Cal.4th at pp. 165-169.) To
the extent defendant challenges these holdings by arguing there is a general federal
constitutional due process right to present the “theory of the defense case,” thus
requiring that the instruction he requested on the crime of mutilation of human
remains be given under the circumstances of this case, he merely has recast in
different terms the same claims we already have rejected. The absence of an
34
Because defendant had no right to the lesser-related-offense instruction in
light of the prosecution’s objection, we need not address whether the trial court
erred by finding that having sexual relations with a corpse did not constitute
mutilation of human remains in violation of the statute. We also note that this
statute was amended in 2004 expressly to encompass “sexual penetration” of and
“sexual contact” with human remains. (See Health & Saf. Code, § 7052.)
84
instruction on mutilation of a corpse did not prevent defendant from presenting his
version of the events, or from arguing to the jury that he was not guilty of the
capital charges, such that we could conclude his trial was fundamentally unfair.
Defendant has not presented any compelling reason for us to revisit our decisions
in Birks and Breverman, and we decline to do so.
d. Mental Condition Evidence
At the conclusion of the guilt phase of the trial, the court instructed the jury
pursuant to a modified version of CALJIC No. 3.32, as follows: “Evidence has
been received from which you may find that the defendant was affected by a
mental condition at the time of the crimes charged. You may consider such
evidence solely for the purpose of determining whether or not the defendant
actually formed any intent or mental state which is an element of the crimes
charged.” Defendant contends the trial court erred by failing to specifically name
for the jury the intent or mental state to which defendant’s “mental condition”
evidence was relevant. He argues that without such an instruction, it is likely the
jury did not understand that premeditation and deliberation and the specific intent
to commit rape were the intent and mental states to which this instruction
referred.35
As an initial matter, defendant failed to preserve an objection to the
adequacy of the instruction given at the guilt phase, and therefore has forfeited that
challenge. (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 (Hudson)
35
It appears from defense counsel’s closing argument that the “mental
condition” at issue was the psychological impact of the supposed incestuous
relationship between defendant and his mother. In other words, counsel asserted
that defendant had unique sensitivities that could cause uncontrollable rage,
precluding premeditation and deliberation and explaining why he had no intent to
rape the victims before killing them.
85
[“ ‘Generally, a party may not complain on appeal that an instruction correct in
law and responsive to the evidence was too general or incomplete unless the party
has requested appropriate clarifying or amplifying language’ ”].)
To the extent we may review defendant’s claim despite his failure to
preserve the issue, it is without merit. (See § 1259 [“The appellate court may
. . . review any instruction given, . . . even though no objection was made thereto
in the lower court, if the substantial rights of the defendant were affected
thereby.”].) When we review challenges to a jury instruction as being incorrect or
incomplete, we evaluate the instructions given as a whole, not in isolation.
(People v. Mayfield (1997) 14 Cal.4th 668, 777.) “For ambiguous instructions, the
test is whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.” (Ibid.) We previously have rejected challenges
similar to defendant’s regarding the failure explicitly to define the term “mental
states” in instructions concerning the effect of a mental defect upon the
defendant’s ability to form mental states required for the commission of various
offenses. Thus, we have found no error in cases in which a mental defect
instruction merely mentioned the term “mental state” in a generic sense, but the
trial court elsewhere either specifically explained that premeditation and
deliberation were mental states necessary for a conviction of first degree murder
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1247-1249 (Musselwhite); People
v. Jones (1991) 53 Cal.3d 1115, 1145), or generally instructed that “ ‘[t]he mental
state required is included in the definition of the crime charged.’ ” (People v.
Smithey (1999) 20 Cal.4th 936, 988 (Smithey).)
Defendant observes that in the present case, the trial court did not
specifically define premeditation and deliberation or the intent to rape as “mental
states,” rendering Musselwhite and People v. Jones inapplicable. He further
argues the trial court did not clearly instruct the jury that the mental states were
86
defined in the instructions concerning the charged offenses. The trial court did
give a modified version of CALJIC No. 3.31 regarding the concurrence of act and
mental state, with language similar to the instruction on which we based our
decision in Smithey, but there was a slight variance in the oral reading of the
instructions. The written version stated in relevant part: “These specific intent
and mental states are set out in the instructions pertaining to the specific crimes.”
The oral version was: “These specific intents and mental states required in each of
these crimes are set out in the instructions pertaining to a specific crime which I’ll
be giving you.” Defendant argues the jury likely was confused by the oral version
because it referred to a specific crime’s instructions, in the singular, which was not
possible because there were two specific crimes charged. He claims this potential
for confusion makes Smithey inapplicable as well.
Even assuming the transcription is completely accurate and the instructions
did not clearly inform the jury that the mental states referred to in the mental
condition instruction were defined in the instructions on the crimes (plural), we
still conclude there is no possibility the jury failed to realize this connection.
Recently, we found no error even when “the jury neither was informed that
premeditation and deliberation were mental states, nor told that the mental state
required for each crime was included in the definition of that crime,” because no
reasonable juror, when properly instructed on the elements of first degree murder,
could fail to realize that premeditation and deliberation are mental states at issue in
such a charge and to make the connection between the elements of the crime and
the limited purpose of the admission of mental defect evidence. (Rogers, supra,
39 Cal.4th at p. 881, citing People v. Castillo (1997) 16 Cal.4th 1009, 1017.)
Although in People v. Jones, Musselwhite, and Smithey other instructions were
given lessening the chance of confusion, the absence of such instructions in the
present case, as in Rogers, does not suggest the jury was unable to make the
87
connection between the mental states referred to in the mental condition
instruction and those described in the instructions on the charged offenses.
In the present case, the trial court properly instructed the jury concerning
the concepts of premeditation and deliberation required for an express-malice first
degree murder finding, the specific intent to commit rape required for an
attempted-rape finding and an associated felony-murder finding, and the elements
of the attempted-rape special circumstance allegations. The primary issue at trial,
moreover, was defendant’s mental state at the time he killed Garcia and
Sorensen — whether he intended to rape them then and/or whether he
premeditated and deliberated before killing them — and the arguments of counsel
further clarified the connection between defendant’s asserted mental condition and
the relevant mental states. (See Rogers, supra, 39 Cal.4th at p. 882.) We
therefore conclude no reasonable jury would have failed to realize these were the
mental states to which the mental condition instruction referred. Accordingly, the
absence of specific reference to them in the instructions was not error.
e. Sexual Intercourse Element of Rape
Defendant contends the trial court inadequately instructed on the crime of
rape because it failed to define the term “sexual intercourse” as meaning vaginal
intercourse.36 (See Holt, supra, 15 Cal.4th at p. 676.) He observes that he
testified at trial that he sodomized both victims (after they were dead) in addition
36
The instruction given was CALJIC No. 10.00, which provided in relevant
part: “Every person who engages in an act of sexual intercourse with a female
person who is not the spouse of the perpetrator accomplished against such a
person’s will by means of force, violence or fear of immediate and unlawful
bodily injury, to such person is guilty of the crime of rape. [¶] In order to prove
the crime of rape, each of the following elements must be proved: [¶] 1. A male
and female person engaged in an act of sexual intercourse. . . .”
88
to having vaginal intercourse, and that forcible sodomy, at the time of his trial,
was not an offense supporting a felony-murder conviction. (Hughes, supra, 27
Cal.4th at p. 368.)
The Attorney General contends that because defendant did not request a
clarifying instruction defining the term “sexual intercourse,” he therefore forfeited
his appellate claim. The longstanding general rule is that the failure to request
clarification of an instruction that is otherwise a correct statement of law forfeits
an appellate claim of error based upon the instruction given. (See Hudson, supra,
38 Cal.4th at pp. 1011-1012; see also People v. Jenkins (2000) 22 Cal.4th 900,
1019-1020; People v. Bolin (1998) 18 Cal.4th 297, 327-328.) We agree that
defendant’s failure to request that the trial court further define the meaning of the
term “sexual intercourse,” which is the element set forth in the statute (§ 261,
subd. (a)), forfeited his claim on appeal. To the extent our recent decision in
Guerra, supra, 37 Cal.4th 1067, 1138, might be interpreted as concluding that the
failure to request a similar instruction in that case did not forfeit an appellate
challenge to the adequacy of the instruction given, we disapprove any such
interpretation. Our statement in Guerra that the asserted error consisted of an
alleged failure to instruct on an essential element of the offense, and our citation to
People v. Flood (1998) 18 Cal.4th 470, 482, footnote 7, cannot support a
conclusion that the claim was not forfeited. When, as in Guerra and the present
case, the trial court has given only an instruction on the crime of rape using the
term “sexual intercourse” without further definition, the court correctly has
instructed on this essential element of the crime, which, as explicitly set forth in
the statute, is sexual intercourse between the perpetrator and the victim. (§ 261,
subd. (a).) Defendant (like the defendant in Guerra) claims only that the
instruction did not clearly explain the meaning of the term used in the statute and
the instruction. This is distinguishable from the circumstances present in Flood, in
89
which the trial court did not give an instruction defining “peace officer” and
instead told the jury that the police officers involved were peace officers, thereby
removing that element from the jury’s deliberations. (Flood, supra, 18 Cal.4th at
p. 482.) Thus, the general forfeiture rule applies to the claims raised in Guerra
and the present case.
Of course, despite defendant’s failure to preserve this issue for appeal, we
may review his claim of instructional error to the extent his substantial rights were
affected. (§ 1259.) We previously have rejected the contention that the term
“sexual intercourse” must be defined for the jury. (Stitely, supra, 35 Cal.4th at
p. 554, citing Holt, supra, 15 Cal.4th at p. 676.) Defendant presents no
compelling reason for us to revisit that holding. Further, the charges and special
circumstance allegations in the present case involved attempted rape. We see no
possibility that because defendant testified he sodomized the victims in addition to
having vaginal intercourse — assuming the jury believed that portion of his
testimony, despite its obvious rejection of his testimony regarding the timing of
these acts — any juror found that defendant attempted to rape the victims based
solely upon a mistaken finding that he intended only to sodomize them. Thus,
there was no need to define “sexual intercourse,” and no error or constitutional
violation occurred.
f. Consciousness of Guilt
Defendant
raises
two
challenges to the “consciousness of guilt” instructions
given by the trial court over his objection. He contends the instructions were
impermissibly argumentative “pinpoint instructions” and also improperly allowed
the jury to draw irrational inferences from the evidence at issue. We have rejected
similar claims on many prior occasions and do so again here.
90
The two instructions at issue informed the jury that in determining his guilt
or innocence, it could consider evidence of (1) defendant’s willfully false or
deliberately misleading statements about the crimes as proof of consciousness of
guilt,37 and (2) defendant’s flight from the area after the crimes were committed.38
Defendant is correct in observing that argumentative instructions unfairly
highlighting particular facts favorable to one side are improper. (People v. Mincey
(1992) 2 Cal.4th 408, 437.) He also acknowledges, however, that we previously
have rejected challenges to instructions similar to those given in the present case
as being improperly argumentative. (See, e.g., People v. Jackson, supra, 13
Cal.4th at p. 1224; People v. Kelly (1992) 1 Cal.4th 495, 531 (Kelly); People v.
Bacigalupo (1991) 1 Cal.4th 103, 128.) We decline defendant’s request to
reconsider those decisions.
37
The trial court gave CALJIC No. 2.03, as follows: “If you find that before
trial Mr. Rundle made a willfully false or deliberately misleading statement
concerning the crimes for which he is now being tried, you may consider such
statements as a circumstance tending to prove a consciousness of guilt. However,
such conduct by itself is not sufficient to prove guilt, and its weight and
significance, if any, are matters for your determination.”
38
The trial court gave a modified version of CALJIC No. 2.52, as follows:
“Evidence has been introduced that the defendant left the Colfax area after the
commission of the crimes for which he’s charged. The flight of a person after the
commission of a crime or after he’s accused of a crime is not sufficient in itself to
establish guilt, but is a fact which if proved may be considered in light of all other
proved facts in deciding the question of his guilt or innocence.
“The weight to which such circumstance is entitled is a matter for the jury
to determine; however, you may only consider evidence of flight as indicating the
defendant’s guilt if you find that the reason or reasons he left were related to his
commission of the crimes charged.
“Moreover, you may only consider evidence of flight as bearing on a
required intent or mental state in the commission of a crime if you find that the
defendant’s conduct in leaving actually reflected such intent or mental state at the
time of the crimes.”
91
Defendant also contends these instructions improperly were given, because
there is no “rational connection between consciousness of guilt and actual guilt.”
He then explains why evidence of his false statements and departure from the area
might not reflect his guilt of the crimes charged. These might have been proper
arguments in attempting to convince jurors that they should not draw an adverse
inference concerning the issues in this case. The arguments do not, however,
convince us it would be entirely irrational for jurors to draw a connection between
defendant’s guilt and his lying about his involvement in the killings of Garcia and
Sorensen, or his flight from the area after he committed those killings and became
a prime suspect in Garcia’s disappearance. Although defendant admitted during
his testimony at trial that he killed Garcia and Sorensen, he did not plead guilty to
any charge, and in light of his various denials and admissions, his credibility in
general was highly suspect. It therefore was not improper for the trial court to
instruct the jury that it could consider defendant’s falsehoods and his flight as
other relevant evidence in its determination of defendant’s guilt or innocence.
(See People v. Breaux (1991) 1 Cal.4th 281, 304.)
Defendant, primarily relying upon our decision in People v. Anderson,
supra, 70 Cal.2d 15, also argues the instructions went beyond referring to mere
evidence of guilt in the general sense and impermissibly invited the jury to infer
from his postoffense behavior that he had a particular mental state at the time he
committed the killings. (See id. at p. 33 [in reviewing sufficiency of evidence of
premeditation and deliberation, evidence that defendant cleaned up the murder
scene and made false statements about what happened was “highly probative of
whether defendant committed the crime, but it d[id] not bear upon the state of the
defendant’s mind at the time of the commission of the crime”].) Defendant’s
argument is unpersuasive.
92
We repeatedly have rejected the claim that the standard consciousness of
guilt instructions, such as the one given by the trial court in the present case
regarding defendant’s false statements, improperly describe the issue of the
defendant’s state of mind at the time of the crime or direct the jury to draw any
impermissible inference on that subject. (See People v. Jurado (2006) 38 Cal.4th
72, 125 [citing cases].) Further, the trial court’s modification of the flight
instruction correctly stated the law — that the jury could not consider defendant’s
flight as evidence of his state of mind when the killings occurred, unless it found
“defendant’s conduct in leaving actually reflected such intent or mental state at the
time of the crimes.” If the jury did not find the requisite connection between the
two, in which case, as defendant argues, an inference about his mental state would
be irrational, the jury simply would not consider evidence of defendant’s flight for
the purpose of determining his intent and mental state at the time he killed the
victims. In this sense, this instruction actually benefited defendant by highlighting
this requirement, and certainly did not improperly direct the jury to draw an
inference concerning defendant’s mental state from defendant’s flight in the event
it found the logical connection between the two was lacking.
We previously have rejected defendant’s additional claim that the
consciousness of guilt instructions improperly allow the jury to draw an inference
of guilt as to all of the charged crimes. (See San Nicolas, supra, 34 Cal.4th at
p. 667; People v. Griffin (1988) 46 Cal.3d 1011, 1027.) We see no reason to
reconsider those decisions.
For the foregoing reasons, the trial court did not err in giving the
consciousness of guilt instructions. Because no error occurred, defendant’s state
and federal constitutional rights were not violated. (People v. Benavides (2005) 35
Cal.4th 69, 100.)
93
g. Asserted Dilution of the Reasonable Doubt Standard
Defendant raises a familiar claim that several of the then standard
instructions given in this case individually and cumulatively “diluted” the jury’s
understanding of the reasonable doubt standard it was constitutionally required to
apply to the determination of his guilt, and that this error violated his rights to due
process of law, to a jury trial, and to be free from cruel and unusual punishment
under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. (See In re Winship (1970) 397 U.S. 358, 364; see also Sullivan v.
Louisiana (1993) 508 U.S. 275, 278-282.)39 Defendant did not raise these
challenges below and therefore has forfeited them.
To the extent that under section 1259 we may review defendant’s claims
despite his failure to preserve them, we recently rejected the same challenges in
Rogers, supra, 39 Cal.4th 826. Defendant’s claims are without merit for the same
reasons we stated in that case: “We previously have rejected claims that the
challenged instructions, alone or in combination, somehow dilute or undermine the
reasonable doubt standard and thus deprive defendants of due process. (E.g.,
People v. Samuels (2005) 36 Cal.4th 96, 131 [CALJIC No. 2.01 does not
undermine the requirement of proof beyond a reasonable doubt]; People v. Stitely
(2005) 35 Cal.4th 514, 555-556 [CALJIC No. 2.01 does not diminish
39
Defendant cites the following instructions as the cause of this asserted
error: a modified instruction combining CALJIC Nos. 2.01 and 8.83 (sufficiency
of circumstantial evidence to prove guilt of offenses and truth of special
circumstances); a modified instruction combining CALJIC Nos. 2.20 and 8.83.1
(sufficiency of circumstantial evidence to prove intent and mental state underlying
offenses and truth of special circumstances); CALJIC No. 2.21.1 (discrepancies in
testimony); CALJIC No. 2.21.2 (willfully false witnesses); CALJIC No. 2.22
(weighing of conflicting testimony); CALJIC No. 2.27 (sufficiency of evidence of
one witness); and CALJIC No. 2.51 (motive).
94
prosecution’s burden of proof]; People v. Stewart [(2004) 33 Cal.4th 425,] 521
[CALJIC Nos. 2.01 and 2.02 do not unconstitutionally lessen the prosecution’s
burden of proof]; People v. Crew (2003) 31 Cal.4th 822, 847-848 [CALJIC Nos.
2.21.2 and 2.22 do not improperly lessen the prosecution’s burden of proof;
CALJIC No. 2.51 does not relieve the prosecution of its burden of proof]; People
v. Frye (1998) 18 Cal.4th 894, 958 [CALJIC No. 2.51 does not shift the burden of
proof to defendant]; People v. Noguera (1992) 4 Cal.4th 599, 633-634 [CALJIC
Nos. 2.02, 2.21, and 2.27 do not permit conviction upon proof less than beyond a
reasonable doubt ].) We decline to revisit these holdings. Because defendant’s
Sixth and Eighth Amendment claims are intertwined with his due process claim,
we reject those claims for the same reasons. (See People v. Samuels, supra, 36
Cal.4th at p. 131 [CALJIC No. 2.01 does not violate Sixth Amendment]; People v.
Stitely, supra, 35 Cal.4th at pp. 555-556 [CALJIC No. 2.01 does not violate
defendant’s rights to trial by jury and to a reliable verdict].)” (Rogers, supra, 39
Cal.4th at pp. 888-889.)
Finally, defendant asserts the instructions cumulatively diluted the
prosecution’s burden of proof. As noted above, however, several of our prior
opinions involved challenges to multiple instructions and rejected such claims.
We adhere to those decisions. “Here the jury was instructed on the presumption of
innocence and reasonable doubt under the then standard California instruction,
CALJIC No. 2.90. The United States Supreme Court has held that this instruction
satisfies due process requirements. (Victor v. Nebraska [(1994)] 511 U.S. [1,] 7-
17; People v. Millwee (1998) 18 Cal.4th 96, 161.) No federal constitutional
violation occurred.” (Rogers, supra, 39 Cal.4th at p. 889.)
95
5. Attempted Rape as the Basis of a Special Circumstance Finding
Defendant contends that, as a matter of California law, there can be no
special circumstance finding under section 190.2, subdivision (a)(17)(C)
predicated upon a killing that occurs in conjunction with an attempted rape. He
argues that because once the victim has been killed it is legally impossible
thereafter to commit rape (see Kelly, supra, 1 Cal.4th at p. 526), no killing during
the course of an attempted rape can further the purpose of completing the crime;
such a killing, in fact, prevents completion of the offense. Accordingly, he claims,
the killing cannot be said to have been committed in order to advance the
independent felonious purpose of attempted rape. (See People v. Morris (1988) 46
Cal.3d 1, 21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th
535, 543-544, fn. 5.) Defendant is mistaken.
The “independent felonious purpose” rule that we have discussed in Morris
and many other cases is a mechanism for ensuring that a felony-murder special
circumstance finding is based upon proof that the defendant intended to commit
the underlying felony separately from forming an intent to kill the victim; that is,
the felony was not merely an afterthought to the murder, as when, for example, the
defendant intends to murder the victim and after doing so takes his or her wallet
for the purpose of making identification of the body more difficult. (See Raley,
supra, 2 Cal.4th at p. 902.) This does not equate, as defendant argues, with a
converse rule that if the defendant has an independent felonious purpose, the
killing necessarily must further the goal of committing the underlying crime if the
special circumstance is to apply. (See People v. Berryman (1993) 6 Cal.4th 1048,
1089-1090, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1 (Hill) [“the felony-murder special circumstance does not require a strict
‘causal’ or ‘temporal’ relationship between the ‘felony’ and the ‘murder’ ” and
“extends even to the situation in which the ‘murder was committed while the
96
defendant was engaged in … the immediate flight after committing’ the felony”];
People v. Horning (2004) 34 Cal.4th 871, 907 [concluding our cases have
established only one requirement — that the evidence establish the felony was not
merely incidental to the murder — and, therefore, the trial court’s failure to
instruct the jury that it must also find that the murder was committed “ ‘in order to
carry out or advance’ ” the commission of the felony was not erroneous].)
Therefore, although intentionally killing the victim during an attempted rape
ultimately might thwart, in the legal sense, the perpetrator’s goal of committing a
rape, this circumstance does not mean the murder was not “committed while the
defendant was engaged in . . . the . . . attempted commission of . . . [¶] . . .
[¶] . . . Rape,” which is what the statute requires. (§ 190.2, subd. (a)(17)(C).)40
6. Asserted Prosecutorial Misconduct
Defendant raises numerous claims of prosecutorial misconduct under both
the state and federal Constitutions, which we shall address in turn. Under
California law, a prosecutor commits reversible misconduct if he or she makes use
of “deceptive or reprehensible methods” when attempting to persuade either the
trial court or the jury, and when it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would have resulted.
40
The murders of Garcia and Sorensen occurred during the “window period”
between our decisions in Carlos v. Superior Court (1983) 35 Cal.3d 131 (holding
intent to kill is an element of the felony-murder special circumstance, even when
the defendant is the actual killer) and People v. Anderson (1987) 43 Cal.3d 1104,
1147 (overruling Carlos and holding that intent to kill is not required if the
defendant is the actual killer). Intent to kill, therefore, was an element of the
special circumstance allegations to be proved at defendant’s trial, and the jury was
so instructed. (People v. Wharton (1991) 53 Cal.3d 522, 586, fn. 16.) Even in
Carlos, however, the intent at issue was solely the intent to kill the victim, not the
intent to kill the victim for the purpose of accomplishing the underlying felony.
(Carlos, supra, 35 Cal.3d at p. 134.)
97
(People v. Strickland (1974) 11 Cal.3d 946, 955.) Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the defendant’s
specific constitutional rights — such as a comment upon the defendant’s
invocation of the right to remain silent — but is otherwise worthy of
condemnation, is not a constitutional violation unless the challenged action “ ‘so
infected the trial with unfairness as to make the resulting conviction a denial of
due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168, 181 (Darden),
quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643 (DeChristoforo).)
“ ‘[A] defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion — and on the same ground — the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard
the impropriety. [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 952.)
Defendant argues the prosecutor engaged in pervasive misconduct that excuses
defendant’s numerous failures to object in the trial court to the supposed instances
of misconduct he raises on appeal (see Hill, supra, 17 Cal.4th at p. 821), and that,
beyond this, we should abolish the longstanding requirement that defendant object
and request an admonition if doing so would not be futile.
We decline defendant’s invitation to eliminate the requirement that
defendants afford trial courts an opportunity to remedy in the first instance any
prosecutorial misconduct that may have occurred during trial. Further, as will
become evident in our discussion of defendant’s claims, there was no pervasive
misconduct — if there was any at all — that would excuse defendant’s failure to
object and request an admonition concerning particular asserted instances of
misconduct.
98
a. Use of Defendant’s Suppression Hearing Testimony During
Cross-examination
Defendant contends the prosecutor engaged in misconduct in cross-
examining him by making reference to the transcripts of his suppression hearing
testimony, because that testimony was admitted for a limited purpose and its use at
trial was misleading. This contention is without merit for the same reasons
discussed ante, in part II.C.1.a; that is, there was no error — or misconduct — in
the use of the hearing testimony, because defendant placed his credibility and state
of mind at issue by choosing to testify and contradicting his confessions to the
officers, and his hearing testimony was relevant and properly admitted to impeach
him.
b. Cross-examination of Dr. Yarvis
Defendant contends misconduct occurred when the prosecutor asked
questions during the cross-examination of defense expert Dr. Yarvis concerning
the terms “sexual psychopath” and “sadistic rape” and other aspects of the
psychology of rapists. He argues the questions exceeded the scope of the direct
examination and were asked only to insinuate without any evidentiary support
that, for example, defendant was a sexual psychopath who engaged in sadistic
rape. After the trial court sustained defendant’s initial objection to a question
about the term “sexual psychopath,” and thereafter clarified the acceptable scope
of cross-examination on the subject of the psychology of rapists, defendant did not
object to the prosecutor’s subsequent questions on this subject, nor claim the
prosecutor had engaged in misconduct or ask the court to give an admonition to
the jury. Defendant therefore may not raise this claim on appeal. In any event, his
claim also is without merit, because there was nothing deceptive, reprehensible, or
improper about these questions, which were well within the scope of questioning
permitted by the court and, being general questions about the psychology of rape
99
without reference to defendant or the circumstances of this case, in no way
improperly “impl[ied] or insinuate[d] the truth of the facts about which questions
are posed.” (Visciotti, supra, 2 Cal.4th at p. 52.)
c. Asserted Attempts to Elicit Testimony Regarding the Lactawen
Murder
Before trial, the prosecutor represented to the trial court and defendant that
he would not seek to introduce evidence of the Lactawen murder during the guilt
phase of the trial. Later, immediately before defendant was to testify in his
defense, the prosecutor moved to introduce the Lactawen murder during cross-
examination. The trial court found the evidence normally would be admissible
under section 1101, subdivision (b) of the Evidence Code, but excluded it because
defendant had relied upon the prosecutor’s general statement that evidence
concerning this murder would not be introduced at the guilt phase. Defendant
contends the prosecutor committed misconduct by nonetheless attempting to elicit
testimony on this subject during cross-examination of defendant and defense
witness Philip Bodily.
When questioning defendant about the supposed fit of rage that caused him
to strangle Sorensen without “thinking,” the prosecutor asked, “[H]ow often do
you get [so] furiously mad that you don’t think?” Defendant replied, “It’s
happened before.” After asking whether this happened with Garcia, to which
defendant answered, “Correct,” the prosecutor inquired, “Is this an everyday
occurrence that you get furiously mad enough to kill people?” Defendant
answered, “No, but it has happened before.” Defense counsel then asked to
approach the bench, and said, “Should I move for a mistrial now or later.” The
prosecutor stated he did not “plan on mentioning the Sacramento incident,” but the
trial court admonished him that “the continual invitation to answers that are going
to be calling for a direct denial of other conduct needs to be avoided.” The
100
prosecutor said, “Fine,” and the questioning resumed. Later, after questioning
spanning approximately 12 pages of the transcript, the prosecutor asked defendant
about tying up Sorensen’s arms, and posed the question whether defendant
“like[d] to tie women up like you were doing to this lady at that time?” Defendant
answered, “In that set of feelings, yes.” The prosecutor then asked, “Did you like
to tie them up while they’re alive, also?” The trial court sustained defense
counsel’s objection and told the prosecutor this was the “No. 2 warning.”
Assuming defendant preserved prosecutorial misconduct challenges to
these exchanges, we are not persuaded by defendant’s claims that through these
questions the prosecutor was attempting to bait defendant into making a response
that would open the door to the introduction of the Lactawen evidence. After the
first challenged question was asked, the prosecutor told the trial court he did not
intend to mention the Lactawen murder, and it appears the court accepted that
representation, although it advised him to avoid the apparently unintended
problem of asking questions that might lead in that direction. Moreover, this first
question — whether it was an everyday occurrence for defendant to get “furiously
mad” enough to kill someone — seems essentially to have been a rhetorical
question designed to discredit defendant’s claim that he had fits of rage that
prevented him from thinking about what he was doing, and probably would lead to
a negative answer, not a statement related to the Lactawen murder. Had the
prosecutor been attempting to force defendant into making some such statement or
a denial that arguably would allow for impeachment with the Lactawen evidence,
he might have asked a question inviting a more factual response, such as “on what
other occasions have you been furiously mad enough to kill someone?”
The second question — whether defendant liked to tie up women when
they are alive — is, again, insufficient to suggest the prosecutor, despite his earlier
assurance to the trial court to the contrary, intended to elicit an answer calling for
101
the introduction of evidence of the Lactawen murder. The question, asked in
response to defendant’s statement that he liked to tie up women “[i]n that set of
feelings” (meaning, possibly, when the woman was dead), appears to have been an
attempt to clarify defendant’s answer. It also simply called for a yes or no answer
about what defendant “like[d],” which was not likely to elicit a statement related
to what he had done in the past. Because the trial court sustained the objection to
the question and the prosecutor proceeded to a different topic, it would be unduly
speculative to conclude, based upon the question itself, that the prosecutor was
attempting to force defendant into opening the door to the admission of evidence
of the Lactawen murder. Accordingly, we discern no indication of prosecutorial
misconduct in the cross-examination of defendant.
Near the end of the cross-examination of defense witness Philip Bodily,
defendant’s childhood friend who testified about defendant’s mother’s sexual
advances and activities with a neighborhood boy, the prosecutor asked Bodily,
without objection, three questions regarding Bodily’s knowledge of the charges
faced by defendant in this case. Bodily ultimately answered that defendant was
charged with “Triple murder.” Counsel then asked Bodily whether he had
communicated with defendant in the previous five years, to which Bodily
answered no. This concluded Bodily’s testimony, and he was excused and the
next witness was called. At a sidebar conference, the court mentioned the triple-
murder answer and stated it assumed the defense did not “wish to emphasize it any
further,” to which defense counsel replied, “You’ve got that right.” The court then
stated, “We’ll deal with it later, if at all.” No further discussion of the question
and answer was held.
Defendant’s claim on appeal — that the prosecutor’s cross-examination on
the subject of Bodily’s knowledge of the charges was misconduct because it was
intended to lead to the introduction of the Lactawen evidence — is forfeited and in
102
any event also is without merit. Defendant had three opportunities to object to
these questions as improper attempts to circumvent the trial court’s order, before
Bodily gave the triple-murder answer. The defense failed to do so. Moreover,
even at the sidebar conference that took place after Bodily was excused, defense
counsel did not mention prosecutorial misconduct.
Defense counsel likely did not raise a misconduct claim in the trial court
because it was apparent this circumstance was simply an unexpected, erroneous
answer by the witness. Shortly before the questions about the charges, the
prosecutor had explored Bodily’s testimony that he did not tell anyone about
defendant’s mother’s sexual activities until several years later, and the only
persons he had told about it prior to trial were Bodily’s father and the defense
investigator. The prosecutor therefore seemed to be challenging Bodily’s
credibility, and the circumstance that Bodily, a childhood friend of defendant’s,
knew defendant was facing serious charges was relevant on that issue. In addition,
for the supposed prosecutorial misconduct to have occurred, the prosecutor would
have had to suspect that Bodily, a defense witness who resided in Utah and, as far
as the record shows, might not have spoken with the prosecutor or his investigator
prior to testifying, knew about the uncharged Lactawen murder and incorrectly
would answer that defendant was charged with three murders in this one case.
Moreover, the prosecutor let the matter drop, despite the absence of any objection
from the defense, and did not seek to establish before the jury that Bodily’s answer
was anything other than a mistake on his part.
In sum, we conclude there is no evidence the prosecutor, through the cross-
examination of defendant and Bodily, engaged in misconduct by purposefully
seeking to undermine the trial court’s ruling excluding the Lactawen evidence.
Even had defendant established that the prosecutor engaged in deceitful and
reprehensible conduct in this regard, we would conclude there is no evidence the
103
outcome or the fairness of the trial would have been adversely affected. The jury
simply never heard about the Lactawen murder during the guilt phase of the trial.
It also had no reason to suspect the prosecutor’s questions to defendant had
anything to do with a third rape and murder, or that Bodily’s triple-murder answer
was anything other than a misunderstanding on his part. Even if the prosecutor
had been attempting to subvert the trial court’s ruling, he was unsuccessful, and
the outcome of the trial was not affected.
d. Argument Regarding Condition of Victims’ Bodies and Clothing
Defendant
contends
the
prosecutor engaged in misconduct during closing
argument by telling the jurors they could “use your imaginations based on what
you have heard here to recreate what those women would have looked like if we
had found the bodies the next day,” and by theorizing the victims’ clothing was
not torn because they might have given in to defendant’s demands in the hope of
avoiding harm. Defendant claims the prosecutor improperly argued the existence
of facts outside the record and, in suggesting what the victims might have said to
defendant, improperly sought to inflame the passions of the jury. Defendant did
not object to the statements regarding the state of the victims’ bodies, and
therefore has forfeited any challenge to that comment. Even had he preserved that
claim, we would conclude that, like challenges he preserved to other parts of the
prosecutor’s argument, it is without merit.
The prosecutor’s comments properly asked the jurors to draw certain
inferences from the evidence presented at trial. This is not a case like those cited
by defendant in which a prosecutor’s statements implied the existence of facts
outside the record of which counsel, but not the jury, were aware. (See, e.g.,
People v. Benson (1990) 52 Cal.3d 754, 794-795; People v. Bolton (1979)
23 Cal.3d 208, 212-213.) Here, the whole point of the prosecutor’s statements
104
was that there was no available credible evidence regarding the state of Garcia’s
and Sorensen’s bodies immediately after the murders were committed or what
actually happened to the victims during the killings. It was therefore necessary for
the jury to draw inferences based upon the evidence presented at trial. Counsel’s
suggestions concerning those inferences were not improper invitations to the jury
to engage in speculation or references to facts outside the record. The prosecutor
properly left it to the jury to determine the reasonableness of his suggestions.
(People v. Navarette (2003) 30 Cal.4th 458, 520; People v. Dennis (1998)
17 Cal.4th 468, 522.) In any event, the prosecutor’s description of the possible
scenario of the victims submitting to defendant’s demands and his suggestion of
what might have been said was not prejudicial misconduct, especially in light of
the evidence of the brutal killings already presented to the jury.
e. Argument Assertedly Appealing to Jury’s Fear of Crime
At one point during his argument, the prosecutor discussed the prevalence
of the crime of rape, and argued that defendant was beyond the “ordinary” rapist
in that he not only wanted to satisfy his “sexual lust” and desire for control over
his victims, but also chose to kill them. Defendant contends the prosecutor’s
comments that the prevalence of rape had caused society to act in a more
protective and restrictive manner “improperly played upon the generalized fears of
the jurors.” Defendant did not object to the prosecutor’s statements below or
request an admonition, and does not demonstrate that such objection would have
been futile. He therefore may not raise this challenge on appeal. Even if we were
to assume for the sake of argument that defendant’s claim was preserved and that
the prosecutor’s reference to societal concerns about crime was improper, we
would conclude that this isolated, brief remark, when viewed in the context of the
entire argument, which focused on defendant’s own culpability for these particular
105
offenses, could not have inflamed the jury’s passions to the point where the
outcome of the trial was affected or the trial became fundamentally unfair.
f. Asserted Exploitation of Exclusion of the List from Sorensen’s
Address Book
Defendant
claims
the
prosecutor
engaged in misconduct by arguing it was
unlikely that Sorensen would instigate sexual activity with defendant in the
manner described in defendant’s testimony, in light of their being essentially
strangers. According to defendant, the prosecutor was taking unfair advantage of
the exclusion of the list of names from Sorensen’s address book that defendant
claimed represented a list of sexual partners. Defendant did not object or seek an
admonition at trial, and therefore is barred from claiming error on appeal.
Moreover, as discussed ante, in part II.C.1.b, defendant failed to establish the list
was relevant evidence on the issue of Sorensen’s sexual proclivities, especially
with regard to strangers, and thus there is no basis for a claim that the prosecutor
took unfair advantage of its exclusion or misled the jury in this regard.
g. Asserted Personal Attack upon Defendant
Defendant challenges two comments by the prosecutor — that defendant
“didn’t learn how to conduct himself like a human being,” but instead acted “like a
caveman” — as improperly denigrating him before the jury. Because defendant
did not object and seek an admonition, he has forfeited this challenge. Even if
preserved, this challenge would fail because the prosecutor’s statements were a
fair use of colorful language to explain the prosecutor’s view of the evidence: that
defendant did what he wanted to his victims in spite of the most basic societal
constraints and any protestations on their part. (People v. Williams (1997) 16
Cal.4th 153, 221.)
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h. Asserted Attack upon the Honesty and Integrity of Defense
Counsel
Defendant
contends
the
prosecutor engaged in misconduct during closing
argument by “insinuating that defense counsel and appellant fabricated a defense
shortly before trial,” when the prosecutor mentioned that defendant met with
defense counsel and the defense psychiatrist to “clear up and get to the true
version of what happened,” and then argued that defendant’s version of the
killings was “designed to avoid criminal responsibility for attempted rape, first
degree felony murder, commission of a rape, and the special circumstances
involving rape, and for no other reason.” No misconduct occurred. The central
issue at the trial was defendant’s credibility. Defendant admitted he had learned
before trial it would be beneficial to his defense if it was established he did not
form the intent to have sexual intercourse with the victims until after they were
dead. The prosecutor’s statements constituted fair comment upon the evidence
regarding the supposed need for defendant, who was the only living person who
witnessed the killings, to meet with others to determine the truth of what
happened, and a reasonable suggestion of a possible motive for defendant to lie
about the murders. The prosecutor did not directly accuse defense counsel of
encouraging defendant to lie, but even to the extent the statements swept counsel
up in defendant’s asserted lies, this was not an improper comment in the context of
this case, in which defendant’s story changed drastically during trial preparations.
(People v. Earp (1999) 20 Cal.4th 826, 862 [“A prosecutor’s suggestion or
insinuation that defense counsel fabricated the defense is misconduct only when
there is ‘no evidence to support that claim.’ ”].)
107
D. Claims Relating to Alleged Juror Misconduct
1. Background
The guilt phase of the trial was completed and the jury began deliberating
on Wednesday, May 17, 1989. After an evening recess, the jury reached its guilt
phase verdicts the following day. On Friday, May 19, the court conducted an ex
parte in camera proceeding with defense counsel, David Humphreys, who was
lead counsel, and Lawrence Smith, who had been appointed as cocounsel pursuant
to Keenan v. Superior Court (1982) 31 Cal.3d 424.41 Defendant was not present.
Smith told the court he had learned from a “fairly unimpeachable” source that the
jury foreman, Juror T.W., who was a medical doctor, had been overheard in a
public area of the courthouse, making a statement to the effect that “if he were to
accept [the defense] theory of the case, . . . he would be violating his Hippocratic
Oath.”42 Smith explained that the person who told him of the statement did not
hear the juror utter it, but rather was told of it by the person who did hear the
statement. Smith provided no information concerning when the juror made the
comment or when Smith learned of it. Further, Smith explained, he did not wish
to reveal the source of the information at that time, because to do so “would cause
41
Although Humphreys was designated lead counsel, it appears that he and
Smith in a general sense equally shared responsibilities.
42
The term “Hippocratic Oath” denotes an oath of professional ethics that in
modern times often is administered to medical school graduates during
commencement proceedings. The oath is named after the Greek medical
practitioner and philosopher Hippocrates, although it is not clear that he actually
was involved in its creation. There are numerous modern adaptations of the oath,
which include additions and deletions from the ancient version, reflecting modern
views on various aspects of the practice of medicine. Interestingly, the most well-
known proviso of the modern oath, “First, do no harm,” is not found in the
original. (Markel, Becoming a Physician: “I Swear by Apollo” — On Taking the
Hippocratic Oath (May 13, 2004) 350 New Eng. J. Med. 2026.)
108
[him] grave personal problems to the extent that it might even give [him] a conflict
of interest.”
The trial court and counsel recognized that if true, the circumstance that
such a statement had been made might indicate serious misconduct by Juror T.W.
in both discussing the merits of the case outside of jury deliberations and in
relying upon improper external influences in his decisionmaking. The trial court,
however, suggested that investigation of the issue might be delayed until after the
penalty phase of the trial in order to avoid “causing a problem for the jurors should
we find out after litigation that it is [a] not-as-it-seems kind of thing.” The court
later reiterated its concern that immediate investigation of the report needlessly
might “sour” the jury before it completed the case if the report ultimately proved
to be incorrect. Both defense counsel agreed that prejudicing the jury was a
concern. No decision concerning a course of action was reached, and the issue
was put over to the next court day.
On Tuesday morning, May 23, 1989, the trial court again met with defense
counsel in chambers to discuss the possible juror misconduct, without defendant or
the prosecutor present. Both Smith and Humphreys stated they agreed with the
court’s concern that questioning the jurors about the supposed statement might
“alienate” them. The court stated it could see no detriment in postponing the
investigation of the possible misconduct to avoid prejudicing the jury “should it be
determined that the events as reported did not happen, or that if they happened,
they happened in some fashion that did not constitute misconduct.” Again, no
final decision was reached, and it was resolved that the issue would be further
discussed with input from the prosecutor.
The court thereafter reconvened in a closed session with defense counsel,
defendant, the prosecutor, and court staff present. The trial court generally
recounted the information Smith had disclosed, and asserted that the juror’s
109
supposed statement “doesn’t make a lot of sense in the form we received it, but
there may be more out there.” The court once again expressed its view that
delaying investigation into the making of the statement would not create prejudice.
The court explained that in its view, if the alleged misconduct occurred, both the
guilt phase and penalty phase verdicts might be set aside. The court apparently
reasoned that in light of this situation, for the time being it was preferable to defer
exploring the issue of Juror T.W.’s possible misconduct. The court expressed
concern that “inquiring and finding that there was nothing could leave an impact
on the jury that would prejudice one side or another or both.” The trial court
rejected the prosecutor’s suggestion that an investigator interview the witnesses,
because the court was “concerned it will get to the jury in some fashion.” The
court also noted Smith might be required to become a witness in the matter, and
unless and until it proved necessary to do so, the court did not want to initiate
steps that might force Smith to withdraw from the case. Smith stated that in his
view, if the firsthand source of the information were directly questioned
concerning the statement, it was “very likely that that person would claim certain
privileges which would start a legal controversy and quickly become very public
and blow the whole thing up.” The court adjourned discussion of the matter until
the afternoon in order to allow the prosecutor to consider what to recommend.
That afternoon, another closed court session was held with defense counsel,
defendant, the prosecutor, and court staff present. The prosecutor initially and
strongly suggested that the witnesses be identified and questioned about the
statement as soon as possible. He did concede, however, that “it would be
dangerous to start questioning the jury now.” It appears the prosecutor
contemplated first questioning the witnesses, and then possibly the jurors,
depending on what information was gained from the witnesses. Smith stated that
if he “were to disclose the source of the alleged comment at this time, it would just
110
create an impossible situation to me that I think would be a conflict of
interest. . . .” Smith then agreed to discuss the identities of the witnesses, first
without the prosecutor present. Smith disclosed that the source of the information
was his wife, who worked at the local newspaper, and the witness to the juror’s
supposed statement was a reporter for the newspaper, Angus Thomson, who was
covering the trial. Smith explained that Thomson told Smith’s wife about the
statement in the course of a personal conversation between the two of them.
Smith’s difficulties arose because a condition of his wife’s employment with the
newspaper specified that she was not to disclose to Smith information she learned
at the newspaper, and thus if Thomson were directly questioned about the
supposed statement, he probably would deduce that Smith’s wife had informed
Smith, which in turn would jeopardize her employment and, it seemed, the
Smiths’ marriage.
The court again stated its belief there would be no problem in proceeding
with the trial of the penalty phase and deferring investigation into the statement
until after that portion of the trial was completed. When Smith agreed and said
this course of action was his “preference,” the court clarified: “[M]y motivation is
in the control of the integrity of these proceedings, and I don’t see any damage to
this Court’s obligations which, quite frankly, are not to your personal situation,
[but to] Mr. Rundle, the People and the law, and I don’t see there is a problem
with that.” The court then summoned the prosecutor, summarized the new
information, and again suggested that all questioning of the witnesses related to
this issue be postponed until after the jury began its deliberations. Final resolution
of the matter was postponed until the following morning so the prosecutor could
develop any final recommendations, but the court stated its tentative plan to order
that Thomson not be contacted concerning the statement, but instead to question
111
Thomson after the jury had begun the penalty phase deliberations, and possibly to
question the jurors after they reached a verdict.
There is no record of any meeting the next day, May 24, 1989 — or for the
next three weeks — concerning this matter. Consistently with the trial court’s
concluding remarks, however, the subject was raised again on June 15, 1989, after
the jury had retired to deliberate on the penalty. The court’s bailiff was called as a
witness and testified he had a conversation with the reporter, Thomson, outside the
courtroom after the jury had reached a guilt phase verdict, but before the verdict
was announced in court.43 The bailiff recalled mentioning to Thomson that he
was surprised Juror T.W. had been chosen for this jury. The bailiff did not
remember hearing a reference to the Hippocratic Oath in this conversation or at
any other point during the trial, or hearing Juror T.W. or any other juror speak
about the case in public. It was the bailiff’s impression, in fact, that Juror T.W.
was “very quiet and usually hangs by himself during the whole trial.” Another
bailiff was called as a witness, but testified he did not recall the substance of any
conversation with Thomson because he was concentrating upon monitoring the
jury.
Next, Thomson was called to testify. He did not remember the bailiff’s
comments regarding being surprised that Juror T.W. remained on the jury. He
also did not remember hearing anyone speak of that juror, or hearing Juror T.W.
speak of the case or the Hippocratic Oath. Thomson’s answers regarding whether
he heard mention of the term “Hippocratic Oath” were somewhat awkwardly
stated, but although there was some unresolved ambiguity, a logical reading in the
43
Before defense counsel questioned the bailiff, Smith stated that due to his
wife’s involvement, he would be “recusing” himself from these particular
proceedings. Humphreys thereafter conducted the questioning of the witnesses.
112
context of the questioning is that he had not heard anyone related to this trial
employ the term.44 Thomson was not asked whether he had spoken with Smith’s
wife about overhearing such a statement. Smith’s wife was not called as a
witness. After the questioning of Thomson concluded, the trial court stated it
would question the jurors on the subject after they reached a verdict. Humphreys
and the prosecutor agreed this should be done.
After the jury’s guilt verdict was rendered later that day, the trial court
conducted another closed session during which the jurors and alternates were
individually questioned concerning whether they had heard any juror talking about
the case outside of the jury’s deliberations. All of the jurors and alternates
answered in the negative. Juror T.W. also was asked specifically whether he could
“recall any conversation that you may have been involved in during this trial,
whether or not it involved the case, where you may have been discussing with
anybody the subject of your oath as a doctor, the Hippocratic Oath.” He
answered, “No. No, other than —” at which point the court interrupted and said,
“Not during jury deliberation. I am talking about a conversation outside the
normal court proceedings.” Juror T.W. then answered, “Not that I can recall.”
Neither defense attorney accepted the trial court’s invitation to approach the bench
44
Humphreys asked Thomson whether he “ever heard that term [the
Hippocratic Oath] mentioned during the course of this proceeding — your course
of covering these proceedings, I should say, other than outside the courtroom?”
The trial court interjected and Humphreys rephrased the question to state, “[o]ther
than inside the courtroom?” Thomson answered, “[o]ther than inside the
courtroom and in the court building, no.” Humphreys then stated, “Okay,” and
Thomson added, “Or outside the court building by members of the jury or by other
people within the earshot of members of the jury, no.” Humphreys then asked,
“You never heard it?” Thomson answered, “No.” Thomson was then excused.
113
with any other questions to be posed. The issue of the supposed statement by
Juror T.W. never was discussed again in the course of the trial court proceedings.
On appeal, defendant contends he was denied the assistance of counsel
guaranteed under the federal and state Constitutions because of a conflict of
interest created by the personal difficulties faced by Smith as a result of disclosing
and pursuing the issue of the alleged misconduct of Juror T.W.45 He also
contends that the trial court erred in failing to inquire into the possibility of a
conflict of interest, and in conducting an inadequate investigation of the alleged
juror misconduct. Finally, he contends his absence from the initial two ex parte
meetings between the trial court and defense counsel violated his constitutional
and statutory rights to be present during trial. As explained below, we reject each
of defendant’s contentions.
2. Asserted Denial of Right to Counsel Due to Conflict of Interest
The Sixth Amendment to the federal Constitution, made applicable to the
states through the due process clause of the Fourteenth Amendment, provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defense.” Similarly, article I, section 15 of our state
Constitution provides that “[t]he defendant in a criminal case has the right . . . to
have the assistance of counsel for the defendant’s defense . . . .” It has long been
held that under both Constitutions, a defendant is deprived of his or her
constitutional right to the assistance of counsel in certain circumstances when,
despite the physical presence of a defense attorney at trial, that attorney labored
under a conflict of interest that compromised his or her loyalty to the defendant.
45
The Attorney General concedes there is nothing in the record suggesting
that defendant ever knowingly and voluntarily waived any conflict of interest his
attorneys may have had.
114
(See Glasser v. United States (1942) 315 U.S. 60, 70 (Glasser); People v. Lanigan
(1943) 22 Cal.2d 569, 575-576 [discussing former art. I, § 13 of Cal. Const.,
which guaranteed the defendant’s right “to appear and defend, in person and with
counsel”]; People v. Chacon (1968) 69 Cal.2d 765, 776-777, fn. 3 (Chacon);
People v. Mroczko (1983) 35 Cal.3d 86, 104 (Mroczko).) Defendant contends a
conflict of interest existed in the present case and denied him his federal and state
constitutional rights to counsel.
a. Federal Constitutional Claim
A recent decision of the United States Supreme Court, Mickens v. Taylor
(2002) 535 U.S. 162 (Mickens), clarified several aspects of the applicable law
concerning the determination whether a conflict of interest acted to deny a
defendant the Sixth Amendment right to counsel. In its central holding, the high
court decided that in cases in which the trial court should have inquired into the
possibility of a conflict of interest on the part of defense counsel but failed to do
so, before reversal is warranted the defendant nonetheless must demonstrate that
an actual conflict of interest affected counsel’s performance. (Mickens, supra, 535
U.S. at pp. 173-174.) As relevant to the present case, the high court also
confirmed that conflict-of-interest claims are a category of ineffective-assistance-
of-counsel claims, which, pursuant to the court’s decision in Strickland v.
Washington (1984) 466 U.S. 668 (Strickland), generally require the defendant to
demonstrate (1) deficient performance by counsel, and (2) “ ‘a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” (Mickens, supra, 535 U.S. at p. 166,
quoting Strickland, supra, 466 U.S. at p. 694.) In the context of a claim of conflict
of interest, however, the deficient-performance prong of the Strickland test is
satisfied by a showing that defense counsel labored under an actual conflict of
115
interest, that is, “a conflict that affected counsel’s performance — as opposed to a
mere theoretical division of loyalties.” (Mickens, supra, 535 U.S. at p. 171.) As
to the second prong — that a defendant demonstrate prejudice in the outcome —
the court recognized an exception to this requirement, applicable when there exist
“ ‘circumstances of [the] magnitude’ ” of the denial of counsel entirely or during a
critical stage of the proceeding. (Id., at p. 166.) The court acknowledged that
several of its cases held that circumstances of that magnitude existed when the
defendant’s attorney had “actively represented conflicting interests,” and thus no
showing of prejudice was required in such circumstances. (Ibid.; see also United
States v. Cronic (1984) 466 U.S. 648, 659, fn. 26.) Those earlier cases established
what has become known as a “presumption of prejudice” that would relieve the
defendant of the otherwise applicable burden of demonstrating a reasonable
probability that the conflict affected the outcome of the trial. (See Glasser, supra,
315 U.S. 60, 76; Cuyler v. Sullivan (1980) 446 U.S. 335, 349-350 (Sullivan).)
In determining whether a defendant has demonstrated the existence of an
actual conflict of interest satisfying the first prong of the analysis, we consider
whether “the record shows that counsel ‘pulled his punches,’ i.e., failed to
represent defendant as vigorously as he might have had there been no conflict.”
(People v. Easley (1988) 46 Cal.3d 712, 725 (Easley).) And yet we must bear in
mind, as we observed in People v. Roldan (2005) 35 Cal.4th 646, 674 (Roldan),
that when “ ‘a conflict of interest causes an attorney not to do something, the
record may not reflect such an omission. We must therefore examine the record to
determine (i) whether arguments or actions omitted would likely have been made
by counsel who did not have a conflict of interest, and (ii) whether there may have
been a tactical reason (other than the asserted conflict of interest) that might have
caused any such omission.’ ”
116
Defendant contends that his attorneys labored under an actual conflict of
interest that adversely affected their performance in two general respects: first,
their decision to agree to delay investigation into the alleged statement until the
end of the trial, and second, their handling of the inquiry when the witnesses and
jurors ultimately were questioned. We find it unnecessary to determine whether
the decision to delay the inquiry was a reasonable tactical choice by counsel or a
result of divided loyalties, because we agree with defendant that counsel “pulled
their punches” during the questioning of the witnesses.
Although Smith’s report was multiple-level hearsay, some pieces of known
information — that Juror T.W., the jury foreman, was a medical doctor and
possibly undertook the Hippocratic Oath at some point in his career — fit with the
specifics of the statement as recounted by Smith, affording some indication of
reliability. Moreover, despite the trial court’s view that the statement, taken
literally, did not “make a lot of sense,” it is reasonably possible to discern a
meaning behind the words: for example, that the juror felt an obligation to society
to protect it from a confessed killer such as defendant, quite apart from the juror’s
view of the evidence presented at the trial.46 Indeed, the trial court repeatedly
46
Of course, under the rules of evidence, even had a more thorough and
probing investigation been undertaken, evidence of Juror T.W.’s mental process in
arriving at his verdict would not be admissible to impeach the verdict in a direct
manner; that is, it would be improper to rely upon this evidence to establish that he
actually rejected the defense theory of the case because he felt bound to follow the
Hippocratic Oath. (Evid. Code, § 1150, subd. (a).) Nonetheless, if further inquiry
produced credible information demonstrating that, despite his denial, Juror T.W.
did make the alleged statement, the statement itself might constitute competent
evidence of “overt acts” of misconduct that if established might have given rise to
a presumption of bias (see In re Hamilton (1999) 20 Cal.4th 273, 294-295):
namely, that Juror T.W. (1) had discussed the case outside of jury deliberations,
and (2) might have been untruthful during voir dire concerning his ability to judge
(footnote continued on next page)
117
mentioned the possibility that confirmation of the report might lead it to declare a
mistrial as to both the guilt and penalty phases.
In light of the foregoing, there appears to be no reasonable explanation for
defense counsel’s ultimate failure to ask news reporter Thomson specifically
whether he told Smith’s wife about the alleged statement by Juror T.W., other than
the desire to protect Smith’s personal interest in not publicly exposing his wife as
the source of the report. It seems unlikely that if Smith had learned of the alleged
statement from an acquaintance who had a casual conversation with Thomson on
the street — instead of from Smith’s own wife, who allegedly had a confidential
conversation with Thomson in connection with her employment —Thomson
would not have been pointedly questioned about the conversation, even in light of
the denials offered at the hearing by the other percipient witnesses. We doubt that
unconflicted counsel would have ended the investigation of this potentially serious
allegation of juror misconduct without asking more direct and probing questions
of the witness who supposedly had heard the alleged statement.
The Attorney General observes that defendant at all times was represented
by two attorneys, and contends the record on appeal does not establish that
defendant’s other counsel, Humphreys, labored under a conflict of interest. We
disagree. Even assuming we could consider separately the actions of Humphreys
from those of Smith such that Smith’s conflict would not automatically “taint” the
entire defense team’s handling of the juror misconduct issue, we believe
Humphreys’s sense of loyalty to his cocounsel was sufficient to create an actual
division of loyalties on his part when viewed in light of the unreasonable failure of
(footnote continued from previous page)
the case on the evidence, and not to be affected by his professional training and
responsibilities.
118
either counsel adequately to explore with Thomson the statement attributed to
Juror T.W. Attorneys Humphreys and Smith at that time had worked together on
defendant’s case for more than one and a half years. Smith spoke repeatedly of
the serious personal difficulties he perceived he would face if the source of his
information were publicly exposed, and he and the trial court mentioned that he
even might be required to withdraw from the case, depending upon how the matter
was handled. (See Roldan, supra, 35 Cal.4th at pp. 726-727.) Under these
circumstances, we believe the record demonstrates that Humphreys also labored
under an actual conflict of interest.
In sum, we conclude defense counsel’s questioning of Thomson was
inadequate compared to what reasonable and unconflicted counsel would have
done, was a result of Smith’s predicament and both attorneys’ desire not to
exacerbate it, and could not have been based upon a strategic choice regarding
how best to protect defendant’s rights. Defendant therefore has demonstrated that
an actual conflict of interest affected counsels’ performance.
Turning to the second prong of the analysis — the question of prejudice
arising from this actual conflict of interest — we conclude no presumption of
prejudice should be applied in this case, and, further, the appellate record does not
demonstrate a reasonable probability that, absent the conflict of interest, the result
of the trial would have been different.
As the Attorney General observes, dictum in Mickens expressed some
uncertainty concerning the circumstances in which a presumption of prejudice
should be applied. The court observed that its previous conflict of interest cases
(Glasser, supra, 315 U.S. 60; Holloway v. Arkansas (1978) 435 U.S. 475, 489-
490; Sullivan, supra, 446 U.S. 335), in which a showing of prejudice to the
outcome was not required, all involved situations in which a single defense
attorney represented jointly charged defendants. The court further observed that
119
despite this common factual underpinning, lower courts had applied the
presumption of prejudice “ ‘unblinkingly’ to ‘all kinds of alleged attorney ethical
conflicts,’ ” even though “the language of Sullivan itself does not clearly establish,
or indeed even support, such expansive application.” (Mickens, supra, 535 U.S. at
pp. 174, 175.) The court stated that whether the presumption properly would be
applied to other conflicts “remains, as far as the jurisprudence of this Court is
concerned, an open question.” (Id. at p. 175.)
In evaluating claims of Sixth Amendment violation based upon conflicts of
interest, we in the past have stated that the presumption of prejudice would be
applicable in a variety of factual circumstances, including matters in which, as in
the present case, it was alleged that the personal interests of the attorney conflicted
with those of the defendant. (See, e.g., People v. Dunkle (2005) 36 Cal.4th 861,
914 (Dunkle) [conflict based upon possibility that the attorney might be a defense
witness]; Roldan, supra, 35 Cal.4th at p. 674 [conflict based upon defense attorney
having been threatened by the defendant]; Frye, supra, 18 Cal.4th at p. 998
[conflict based upon defense attorney’s upcoming suspension from the practice of
law]; Mayfield, supra, 5 Cal.4th at p. 206 [conflict based upon defense attorney’s
financial and reputational interests].) The only cases in which we have had
occasion to actually apply the presumption, however, have involved, like the high
court’s cases, joint representation of codefendants by a single attorney. (See
Easley, supra, 46 Cal.3d 712; Mroczko, supra, 35 Cal.3d 86; see also Chacon,
supra, 69 Cal.2d 767.) In all other cases in which we mentioned the presumption
of prejudice in the recitation of the applicable law, we concluded that the
defendant failed to establish that an actual conflict of interest adversely affected
counsel’s performance; that is, we determined “ ‘the constitutional predicate for
[the] claim of ineffective assistance’ ” was lacking. (Mickens, supra, 535 U.S. at
p. 175, quoting Sullivan, supra, 446 U.S. at p. 350.) Our past decisions, therefore,
120
do not constitute controlling authority concerning the question whether the
presumption of prejudice applies to all or only some conflict of interest situations,
and we are especially reluctant to interpret those holdings broadly here, in light of
the skepticism expressed by the high court in Mickens concerning an expansive
application of the presumption.
As the high court pointed out in Mickens, the presumption of prejudice is a
prophylactic measure established to address “situations where Strickland itself is
evidently inadequate to assure vindication of the defendant’s Sixth Amendment
right to counsel.” (Mickens, supra, 535 U.S. at p. 176.) Only when the court
concludes that the possibility of prejudice and the corresponding difficulty in
demonstrating such prejudice are sufficiently great compared to other more
customary assessments of the detrimental effects of deficient performance by
defense counsel, must the presumption be applied in order to safeguard the
defendant’s fundamental right to the effective assistance of counsel under the
Sixth Amendment. (Mickens, at p. 175.) We conclude that the Strickland
standard is not “inadequate” in this case, and, accordingly, no presumption of
prejudice is called for.
Defendant does not contend that the conflict affected his counsel’s
performance related to their conduct of the trial itself, apart from counsel’s
reaction to the juror-misconduct issue in question. As a result, the complained-of
shortcomings of counsel in this case are fundamentally different from those found
in typical conflict-of-interest situations. In most conflict cases, in which a conflict
of interest affected the presentation of the defense case to the jury, the problem in
assessing prejudice to the outcome of the proceeding has arisen from the
reviewing court’s difficulty in evaluating how extensively the conflict affected
counsel’s choices and, ultimately, in predicting how the presence or absence of
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certain evidence or arguments at trial would have affected the jury’s deliberations
and verdict.
In the present case, we must examine how counsel’s conflict affected the
resolution of the allegation of juror misconduct and the possibility of defendant’s
moving for and receiving a mistrial on that basis.47 This determination does not
pose the same level of difficulty as attempting to gauge the effect of a conflict
upon how counsel conducted the defense case at trial, and further to predict how a
jury would have reacted if counsel had put forth a different defense. Rather, it
essentially involves a factual determination of whether any misconduct occurred
and, if so, a legal determination of whether such misconduct would have provided
grounds for moving for and granting a mistrial. Accordingly, we cannot say that
any difficulty in assessing the prejudice resulting from the type of conflict of
interest at issue in this case is so great that the Strickland standard is inadequate.
We therefore conclude we should not apply the prophylactic presumption of
prejudice under these circumstances.
We further conclude, based upon the appellate record, that defendant has
not carried his burden of demonstrating a reasonable probability he would have
received a more favorable outcome were it not for his counsel’s conflict of
interest — that is, of demonstrating that more extensive questioning of the
witnesses would have uncovered sufficient grounds to support the making and
47
We shall assume for the sake of argument that the loss of the procedural
right to request and be granted a mistrial implicates a fundamental procedural right
that, if proved to result from ineffective assistance of counsel due to a conflict of
interest, would constitute prejudice to the outcome of the proceeding for Sixth
Amendment purposes, even if defendant would have been convicted and
sentenced to death following a retrial. (See United States v. Ramsey (D.D.C.
2004) 323 F.Supp.2d 27, 39-44; Davidson v. United States (W.D.Pa. 1996) 951
F.Supp. 555, 558-559.)
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granting of a motion for a mistrial. Smith revealed to the court the reported
statement and his concerns surrounding it. Other than Smith’s unsworn statements
and possibly Juror T.W.’s half-statement that he had spoken of the Hippocratic
Oath at some point, the evidence in the appellate record, including a logical
reading of Thomson’s testimony, strongly contradicts the allegation that Juror
T.W. made the statement in question. We also cannot determine at this time
whether, even if Juror T.W. did make the statement as reported, such action
constituted misconduct, or if it did, that it would warrant a mistrial. Similarly,
even were we to assume that counsel’s decisions to delay investigation of Smith’s
report and not to call Smith’s wife as a witness at the hearing also were products
of a conflict of interest, there is nothing in the record before us establishing that a
different course of action would have exposed any more convincing evidence of
misconduct. Therefore, based upon this record, we conclude there is no
reasonable probability that, absent the conflict, defendant would have received a
more favorable outcome — specifically, a ruling by the trial court granting a
mistrial based upon juror misconduct.48
b. State Constitutional Claim
As noted, the California Constitution provides that a defendant is
guaranteed the right to have “the assistance of counsel for the defendant’s
defense.” (Cal. Const., art. I, § 15.) We long have recognized that under state
48
To the extent it might prove to be true that counsel’s conflicted
performance retarded the development of the appellate record concerning the
alleged misconduct, habeas corpus is available to expand upon the existing record
in the event defendant uncovers evidence of juror misconduct that counsel should
have developed at trial. (See People v. Snow (2003) 30 Cal.4th 43, 111 (Snow)
[“normally a claim of ineffective assistance of counsel is appropriately raised in a
petition for writ of habeas corpus [citation], where relevant facts and
circumstances not reflected in the record on appeal . . . can be brought to light”].)
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law, “[t]he right to counsel is a fundamental constitutional right, which has been
carefully guarded by the courts of this state.” (In re James (1952) 38 Cal.2d 302,
310.) We also have characterized our state provision as calling for a “somewhat
more rigorous standard of review” of conflict-of-interest claims compared with the
analysis employed in the Sixth Amendment context. (Mroczko, supra, 35 Cal.3d
at p. 104.)
Although the federal Constitution — regardless of whether a presumption
of prejudice applies — requires proof of an actual conflict of interest, that is, proof
that counsel’s conflict adversely affected his or her performance during the
proceedings (Mickens, supra, 535 U.S. at p. 172, fn. 5), under the state
Constitution we have required only that the record support an “informed
speculation” that a “potential conflict of interest” impaired the defendant’s right to
effective assistance of counsel. (Mroczko, supra, 35 Cal.3d 86, 105; see Chacon,
supra, 69 Cal.2d 767, 776-777, fn. 3, citing Lollar v. United States (D.C. Cir.
1967) 376 F.2d 243, 247 (Lollar).)49 Because a conflict of interest may retard
counsel’s development of evidence or arguments in support of the defense — and
possibly even evidence of the conflict itself — we have retained this stricter
standard in order to “closely guard” the fundamental right to the assistance of
counsel. “The very failure to produce or emphasize such information . . . produces
a void and results in a record which shields the fact of any possible conflict and
makes it difficult to demonstrate on appeal that a conflict did in fact exist.
49
We note that our 1968 opinion in Chacon, supra, 69 Cal.2d 765, predated
Sullivan, supra, 446 U.S. 335, in 1980, and articulated a single standard that
applied to both federal and state constitutional claims of conflicted counsel.
Although Sullivan subsequently clarified the federal standard as being different
from that articulated in Lollar, we have maintained the Chacon standard as a
matter of state law. (See, e.g., Dunkle, supra, 36 Cal.4th at p. 915.)
124
[Citation.] Accordingly, a [defendant] . . . need not establish that there was an
actual conflict of interest, but rather it is sufficient if the record provides an
adequate basis for an ‘informed speculation’ that there was a potential conflict of
interest which prejudicially affected the defendant’s right to effective counsel.
[Citations.] [¶] Permissible speculation giving rise to a conflict of interest may be
deemed an informed speculation but only when such is grounded on a factual basis
which can be found in the record.” (People v. Cook (1975) 13 Cal.3d 663, 670-
671.)
We apply a standard stricter than that applied under the federal Constitution
for determining the existence of a conflict of interest, but our ultimate resolution
of defendant’s state constitutional claim is no different from the resolution of his
federal claim. As already discussed with regard to the determination whether an
actual conflict of interest exists under the federal test, the record supports an
informed speculation that a potential conflict of interest impaired defendant’s right
to the effective assistance of counsel. Smith’s desire to avoid the public disclosure
of his wife as the source of the report, as well as Humphreys’s desire not to cause
serious personal difficulties for Smith and to avoid Smith’s possible withdrawal,
created the potential for divided loyalties. As also discussed above, the record
additionally supports an informed speculation that counsel “pulled punches”
because of these conflicts, as reflected in the manner in which counsel pursued the
issue with news reporter Thomson during the hearing conducted at the conclusion
of the trial. We conclude, however, that, as under Sixth Amendment standards, no
presumption of prejudice is appropriate under state law under the circumstances of
this case. We further conclude, based upon the appellate record, that defendant
has not carried his burden of demonstrating he was prejudiced by the perceived
conflict, including, if we assume them to be conflicted actions, counsel’s decisions
to delay the investigation and not to question Smith’s wife. Counsel’s conflicts
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did not affect the presentation of the defense case to the jury. Moreover,
defendant has not established that Juror T.W. made the statement attributed to him
by Attorney Smith, or that even if he did make some statement pertaining to the
Hippocratic Oath, this constituted misconduct that would have warranted moving
for, and being granted, a mistrial.50
3. Assertedly Inadequate Investigation by the Trial Court of Conflict of
Interest and Juror Misconduct
Defendant contends the trial court violated its duty under Wood v. Georgia
(1981) 450 U.S. 261, 272 to conduct an investigation into the possibility that
Attorney Smith may have been laboring under a conflict of interest, before it
decided to delay its inquiry into the alleged juror misconduct and to proceed with
the penalty phase of the trial. We disagree. Although, with the benefit of
hindsight, we have concluded above that defendant’s attorneys were affected by an
actual conflict of interest in the manner in which they conducted their examination
of the witnesses at the hearing, we do not believe the circumstances “impose[d]
upon the court a duty to inquire further” into the possibility of a conflict of
interest. (Wood, supra, 450 U.S. at p. 272.)
When the allegation of juror misconduct was raised, the possibility of a
conflict of interest as to Smith was openly discussed by the court and counsel,
with defendant present at the later discussions. Smith, in fact, eventually revealed
the source of his information and explained the particular difficulties he faced,
despite his earlier reluctance to do so. Moreover, there is no evidence, and not
even an allegation by defendant, that any conflict had an impact on how the
defense case was presented to the jury. The conflict of interest concerned only the
50
Again, to the extent any undeveloped evidence supporting a claim of
misconduct might exist, such evidence can be raised in a habeas corpus petition.
126
collateral issue of whether jury misconduct had occurred, an issue the trial court
thought could be adequately explored at the conclusion of the trial, at which time
Smith “recused” himself and Humphreys took charge of the matter for the defense.
It is unclear what would have been accomplished by a further inquiry by the trial
court into the possibility of a conflict of interest of counsel, and we therefore
conclude that no duty to inquire was breached.
Defendant also contends the trial court’s investigation of the possible juror
misconduct was inadequate and thereby deprived him of his right to a fair and
impartial jury under the federal and state Constitutions. The existing record,
however, shows neither misconduct nor bias on the part of Juror T.W. (or any
other juror) and, in fact, strongly contradicts any such claim. There simply is no
indication that the jury was not fair and impartial. To the extent defendant claims
the trial court abused its discretion concerning how it chose to determine whether
Juror T.W. engaged in misconduct or was biased, we disagree. (See People v.
Seaton (2001) 26 Cal.4th 598, 676 [“specific procedures to follow in investigating
an allegation of juror misconduct are generally a matter for the trial court’s
discretion”]; see also People v. Burgener (1986) 41 Cal. 3d 505, 520 [“Failure to
conduct a hearing sufficient to determine whether good cause to discharge [a]
juror exists is an abuse of discretion subject to appellate review.”].) The record
demonstrates that the court at all times properly was concerned with avoiding the
possibility that the jury foreman would be erroneously accused of misconduct —
and the jury thereby prejudiced in some manner — based upon uncertain
information, and the court’s cautious choice of how to avoid this consequence
while still adequately addressing the allegation was within the bounds of reason.
(See People v. Osband (1996) 13 Cal.4th 622, 666.)
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4. Defendant’s Absence from Meetings Between the Trial Court and
Defense Counsel Concerning the Alleged Juror Misconduct
Defendant was not present during the first two ex parte in camera hearings
concerning Smith’s report of the alleged misconduct on the part of Juror T.W. He
contends on appeal that his absence from these proceedings violated his federal
and state constitutional rights, as well as state statutory law.
“As a constitutional matter, a criminal defendant accused of a felony has
the right to be present at every critical stage of the trial. (Illinois v. Allen (1970)
397 U.S. 337, 338.) The right derives from the confrontation clause of the Sixth
Amendment to the federal Constitution and the due process clauses of the Fifth
and Fourteenth Amendments, and article I, section 15 of the California
Constitution.” (Frye, supra, 18 Cal.4th at p. 1010.) A critical stage of the trial is
one in which a defendant’s “ ‘absence might frustrate the fairness of the
proceedings’ (Faretta v. California (1975) 422 U.S. 806, 819, fn. 15) or
‘whenever his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge’ (Snyder v. Massachusetts (1934) 291
U.S. 97, 105-106).” (Rodriguez, supra, 17 Cal.4th at p. 260.)
The ex parte meetings between the trial court and defense counsel
concerning Juror T.W.’s alleged statement, at which defendant was not present,
were not critical stages of the trial for constitutional purposes, because they were
merely exploratory discussions concerning the potential problem of juror
misconduct and possible courses of action that might be taken to resolve that issue.
Defendant, in arguing to the contrary, relies primarily upon the three-judge-panel
decision in Campbell v. Rice (9th Cir. 2002) 302 F.3d 892. After completion of
briefing in the present appeal, the Campbell opinion was vacated by the Ninth
Circuit Court of Appeals’ decision to order an en banc rehearing of the appeal.
(Campbell v. Rice (9th Cir. 2004) 386 F.3d 1258.) The court’s subsequent en banc
128
decision declined to determine whether error occurred, instead concluding that the
California Court of Appeal was not unreasonable in holding that any error
resulting from the defendant’s absence while the trial court and counsel discussed
a possible conflict of interest was harmless. (Campbell v. Rice (9th Cir. 2005) 408
F.3d 1166, 1172-1173 (en banc).) Even to the extent the three-judge opinion
might carry some persuasive value, however, the Campbell case is factually
distinguishable. In the present case, no final decisions were made during the
meetings in question, and the information possessed by the court and defense
counsel and their contemplated course of action subsequently were conveyed to
defendant (and the prosecutor) in the closed court sessions before any course of
action was determined. (Cf. Campbell, supra, 302 F.3d at p. 899 [“the in-
chambers hearing held to determine whether Campbell’s right to conflict-free
counsel had been violated must have been a critical stage of the criminal
proceedings” (italics added)].)
There is no indication in the case before us that defendant’s presence during
the preliminary meetings held between the court and defense counsel was
necessary to ensure the fairness of the proceedings or that defendant’s absence in
any way affected his defense. Indeed, the record reflects that defendant was
present during the several discussions that subsequently took place concerning the
subjects of the alleged misconduct and Smith’s possible conflict of interest, and
never sought to add his personal input into the decisionmaking process.
Accordingly, defendant’s constitutional right to be present was not violated by his
absence at the earlier meetings.
Turning to defendant’s statutory claims, we have long held that the
presence requirement under sections 977 and 1043 is similar to that of the
constitutional provisions: under the statutes, a defendant “ ‘ “is not entitled to be
personally present during proceedings which bear no reasonable, substantial
129
relation to his opportunity to defend the charges against him . . . . [Citation.]”
[Citation.]’ [Citations.]” (Rogers, supra, 39 Cal.4th at p. 855; see also People v.
Kelly (2007) 42 Cal.4th 763, 781-782; People v. Ervin (2000) 22 Cal.4th 48, 74;
People v. Bradford (1997) 15 Cal.4th 1229, 1357; People v. Beardslee (1991) 53
Cal.3d 68, 103; People v. Jackson (1980) 28 Cal.3d 264, 309.) Therefore,
essentially for the same reasons we have articulated above in finding that
defendant’s constitutional right to be present was not violated, we conclude he has
not established a violation of the statutes — his personal presence at the in camera
hearings did not bear a reasonable, substantial relation to his opportunity to defend
the charges against him. Even to the extent that defendant contends the statutory
requirement is broader than the constitutional right to be personally present, there
is no reasonable probability that a result more favorable to defendant would have
been reached had he been personally present at the in camera discussions.
Accordingly, any error would in no sense be prejudicial under Watson, supra, 46
Cal.2d at page 836. (See Weaver, supra, 26 Cal.4th at p. 968.)
E. Penalty Phase Claims
1. Defendant’s Competency to Proceed with the Penalty Phase
As mentioned above, during a noon recess in the presentation of the
prosecution’s opening statement at the penalty phase of the trial, defendant told
court staff he did not wish to be present for the remainder of the trial. The trial
court subsequently mentioned this on the record outside the presence of the jury,
and a second recess was taken to allow defendant to discuss this matter with his
counsel. After this recess, the court held an in camera meeting with defense
counsel, at which counsel requested the court to adjourn for the day to allow more
discussions with defendant. During this meeting, counsel stated their belief that
defendant was “totally irrational and is not making a rational judgment as to
130
whether or not he should absent himself from these proceedings and does not . . .
have a reasoned understanding of the effects that decision may have on him.” The
defense attorneys stated they believed they “had better declare a doubt,” but
suggested that before the court did “anything that radical,” the court might
consider adjourning for the remainder of the day and then seeing whether
defendant “gets back in his chair by tomorrow morning.” Resuming proceedings
in open court, the court adjourned the case until the following morning and
advised defendant it was concerned that his decision be made in a careful, rational,
calm, and reflective manner. The court mentioned to defendant that his absence
during the penalty phase was likely to “make it worse” for himself. Defense
counsel were directed to “report” to the court by 8:30 a.m. the next day, at which
point the prosecution and the jurors would be notified as to when the proceedings
would resume.
The following morning, on the record and outside the presence of the jury,
the trial court “confirm[ed] for the record that at present there is no request from
Mr. Rundle at this time to be absent.” Defense counsel agreed that was correct.
The trial then proceeded with defendant present.
Defendant now contends that the trial court should have conducted a
competency hearing based upon counsel’s representation that defendant was
“totally irrational” in his initial desire to absent himself from the penalty phase
proceedings, and that the court’s failure to do so violated defendant’s various
constitutional and statutory rights. This claim is without merit.
It is true that an incompetent defendant — one who, because of a mental
disorder or developmental disability, lacks an understanding of the nature of the
proceedings and is unable to assist his attorneys rationally in conducting the
defense — may not be subjected to trial, and that a trial court faced at any point in
a trial with a “bona fide doubt” based upon substantial evidence whether a
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defendant is competent must conduct an adequate investigation into the
defendant’s ability to proceed. (§§ 1367, subd. (a), 1368, subd. (a); Pate v.
Robinson (1966) 383 U.S. 375, 385; People v. Welch (1999) 20 Cal.4th 701, 738.)
It also is clear from the record that defendant’s “irrational” behavior was an
emotional reaction to the stress of the penalty phase of the trial, reflecting a
difference of opinion between defendant and his attorneys concerning the strategic
decision whether defendant should absent himself from further proceedings.
There was no evidence, let alone substantial evidence, that defendant’s behavior
was caused by a mental disorder that prevented him from understanding the
proceedings or assisting his attorneys in a rational manner. Defendant had
behaved rationally throughout the pretrial and guilt phases of the trial and had
testified, in a completely rational manner, in his own defense. Despite his
attorneys’ gratuitous remark to the trial court that they thought they “had better
declare a doubt,” counsel’s description of defendant’s state of mind was not that
he was mentally incompetent, but that he was very emotional and “adamant” in his
decision not to be present despite counsel’s best arguments to the contrary.
Indeed, counsel stated defendant was “having an extreme anxiety attack right
now,” and might benefit from some tranquilizing medication. Defense counsel
never stated they did not believe the trial could proceed, nor did they directly ask
the trial court to explore the issue of defendant’s mental competency. The court
appropriately adjourned the proceedings for the day in an attempt to permit
defendant’s emotional stress to dissipate, which it apparently did, as there were no
further difficulties the next morning and defendant’s counsel thereafter expressed
no “doubt” regarding defendant’s behavior. Accordingly, there was no statutory
or constitutional error in the decision not to conduct a more searching inquiry on
this matter. (Cf. Frye, supra, 18 Cal.4th at p. 1005 [“An angry and emotional
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reaction to a verdict of guilt does not indicate an inability to understand the nature
of the criminal proceedings, or to rationally assist counsel”].)
2. Assertedly Erroneous Evidentiary Rulings
a. Admission of Testimony of Defendant’s Ex-wife
Defendant
raises
several
challenges to the admission of his ex-wife’s
testimony that he repeatedly forced her to engage in sodomy and oral copulation
against her will and physically assaulted her on other occasions, as evidence of
other violent offenses under section 190.3, factor (b) (factor (b)). None of these
challenges is subject to appellate review, however. The sole challenge by the
defense to the admission of this evidence at trial was that the testimony did not
establish the sexual acts were performed against her will, because she continued in
the marriage and engaged in other consensual sexual activities with defendant.
Even if these contentions had not been forfeited, we would conclude they are
without merit.
Defendant contends the admission of evidence concerning the physical
assaults was erroneous because the statute of limitations for the prosecution of
charges of assault and battery had run before the commencement of trial in this
matter. We repeatedly have rejected such claims, as defendant acknowledges, and
see no reason to reconsider our decisions. (See, e.g., Huggins, supra, 38 Cal.4th at
p. 246.)
Next, defendant contends the trial court erred by not excluding the evidence
of his sexual assaults upon his ex-wife under section 352 of the Evidence Code.
Contrary to defendant’s assertion on appeal, his attorneys asked only for a hearing
on the admissibility of her testimony in general, and never objected to the
admission of her testimony on the ground that under this statute its probative value
was substantially outweighed by the likelihood of its causing undue prejudice.
133
Nor did counsel raise such an objection after defendant’s ex-wife testified at the
ensuing hearing held outside the presence of the jury, and the trial court therefore
never had occasion to weigh the probative value and potential for undue prejudice.
Defendant has forfeited any claim that the trial court abused its discretion in this
regard. (Evid. Code, § 353; People v. Anderson (2001) 25 Cal.4th 543, 586
(Anderson).)
Defendant also claims his ex-wife’s testimony was so unreliable as to
render the jury’s penalty determination constitutionally defective. Although, as
defendant observes, the prosecution presented no corroboration of her accusations,
the asserted untrustworthiness of this testimony goes to its credibility, an issue that
was for the jury to determine.51 The claimed lack of reliability did not deny
defendant his constitutional right to a reliable penalty determination. (Anderson,
supra, 25 Cal.4th at p. 587.)
Defendant next contends that instructions given by the court, in the course
of explaining section 190.3, factor (b), unconstitutionally diluted the reasonable
doubt standard applicable to these sexual offenses. This contention is without
merit. The trial court properly directed the jury at the beginning of the factor (b)
instructions to consider this evidence “only if it is established by proof beyond a
reasonable doubt that the Defendant committed such criminal acts.” The
challenged instruction, which followed the trial court’s instructions concerning the
elements of the factor (b) offenses of assault likely to cause great bodily injury and
battery, informed the jury that “[w]ith respect to any act of violence, other than
51
The trial court’s subsequent statement (during its ruling on the motion to
modify the verdict) of its view that the testimony regarding the sexual assaults was
not convincing is beside the point. That the trial court stated it was not convinced
by the ex-wife’s testimony is not a finding that no rational juror could have found
the testimony credible.
134
one involving a crime of a sexual nature testified to by [defendant’s ex-wife], you
may consider such evidence as a circumstance in aggravation only if the elements
of one of the specific offenses which I have just described to you have been
proven.” This instruction simply defined for the jury, if it found them to have
occurred, defendant’s assaultive acts (such as throwing his ex-wife to the ground
and hitting her head against the floor) as either an assault likely to cause great
bodily injury or a battery, but told them that other potential offenses might have
been committed by defendant in the course of his alleged forcible sexual conduct.
The instruction did not dilute the previously given controlling instruction that all
of the factor (b) crimes had to be proved beyond a reasonable doubt before the
jury could consider the testimony as evidence in aggravation.
Defendant
raises
two
final, related challenges to this testimony, primarily
concerning the circumstance that his ex-wife testified in a general manner to a
nonspecific series of acts occurring over a period of several months, without
providing exact dates upon which specific acts of forcible sodomy or oral
copulation occurred. Defendant contends admission of this “generic testimony”
unconstitutionally deprived him of notice of the allegations and the opportunity to
present a defense, and constituted insufficient evidence of the offenses to allow the
jury to consider this testimony under section 190.3, factor (b). We disagree.
We previously have addressed similar challenges raised in cases in which
the defendant was charged with child molestation and the alleged child victim
testified to a series of acts occurring over a period of time without providing
specific details regarding the exact dates of particular acts. (See People v. Jones
(1990) 51 Cal.3d 294, 314-316 (Jones) [approving the use of generic testimony in
such circumstances if certain requirements are satisfied].) As defendant
recognizes, there is a fundamental difference between Jones and the present case:
although Jones involved the admissibility of such evidence to prove substantive
135
criminal charges, the evidence here at issue was introduced at the penalty phase of
the trial as evidence in aggravation. “[T]he penalty phase of trial [is not] the
equivalent of a criminal prosecution for purposes of due process . . . analysis.
Evidence of prior unadjudicated violent conduct is admitted not to impose
punishment for that conduct, but rather, in part, to give the jury in the capital case
‘a true picture of the defendant’s history since there is no temporal limitation on
evidence in mitigation offered by the defendant.’ [Citation.] As this court noted
in People v. Balderas [(1985)] 41 Cal.3d 144, 205, footnote 32, the ‘penalty phase
is unique, intended to place before the sentencer all evidence properly bearing on
its decision under the Constitution and statutes.’ ” (People v. Stanley (1995) 10
Cal.4th 764, 822-823.) We agree with defendant that Jones and cases like it,
concerning substantive charges, are distinguishable with respect to our analysis of
the issue of “generic testimony” introduced at the penalty phase of a capital trial.
This distinction does not, however, lead us to conclude that the admission of
generic factor (b) testimony at the penalty phase of defendant’s trial was improper.
We instead shall apply to defendant’s claim the general principles we
previously have enunciated concerning similar due process challenges to the
admission of factor (b) evidence. “In People v. Rodrigues (1994) 8 Cal.4th 1060,
we concluded that the admission of violent criminal conduct occurring many years
before the penalty trial is not necessarily inconsistent with a defendant’s rights to
due process, a speedy trial and a reliable penalty determination. We reasoned that
‘the state has a legitimate interest in allowing a jury to weigh and consider a
defendant’s prior criminal conduct in determining the appropriate penalty, so long
as reasonable steps are taken to assure a fair and impartial penalty trial.’
[Citation.] We identified those ‘reasonable steps’ as including notice of the
evidence to be introduced, the opportunity to confront the available witnesses, and
the requirement of proof beyond a reasonable doubt. When these steps have been
136
taken, we concluded, the remoteness of the offense affects its weight, not its
admissibility. [Citation.]” (People v. Yeoman (2003) 31 Cal.4th 93, 136-137; see
also Anderson, supra, 25 Cal.4th at pp. 585-586; Kraft, supra, 23 Cal.4th at
pp. 1070-1071.)
We further emphasize that, unlike a criminal charging document, which
must allege with sufficient specificity particular offenses (§ 952), the notice
required under factor (b) is notification of the evidence to be introduced (§ 190.3).
Notice of factor (b) evidence “is sufficient if the defendant has a reasonable
opportunity to respond.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1051
(Lewis and Oliver).) Furthermore, we observe that, unlike what must be
established with regard to substantive criminal charges, there is no requirement
that a capital sentencing jury unanimously find the existence of a violent criminal
offense to be proved beyond a reasonable doubt before an individual juror may
consider such evidence in aggravation under factor (b). (Griffin, supra, 33 Cal.4th
536, 585.)
For these reasons, our review of whether factor (b) evidence properly was
admitted and considered by the jury is quite different from our review of the
sufficiency of the evidence presented to support a criminal conviction.52 It long
has been the rule under both the federal and state Constitutions that in resolving a
due process challenge such as that made by defendant, we must balance the
competing interests at issue — on the one hand, the defendant’s interest in having
52
Similarly, we observe that, unlike cases involving a conviction based upon
insufficient evidence resulting in a “legally inadequate theory,” in which
automatic reversal of the conviction generally is required (People v. Guiton (1993)
4 Cal.4th 1116, 1128), any error regarding the admission of factor (b) evidence is
subject to harmless-error review in light of other properly admitted aggravating
evidence. (See e.g., People v. Medina (1995) 11 Cal.4th 694, 768.)
137
a fair opportunity to respond to the accusations and ensuring the reliability of the
evidence offered against him, with, on the other hand, the state’s interest in
presenting the sentencing jury with a complete picture of the defendant’s
character. (Mathews v. Eldridge (1976) 424 U.S. 319, 335; People v. Ramirez
(1979) 25 Cal.3d 260, 269.) We believe that adherence to the “reasonable steps”
mentioned above with regard to the admission of “generic” factor (b) testimony —
keeping in mind the goal of achieving a fair, reliable, and complete penalty
proceeding — ensures a defendant due process. If those reasonable steps have
been undertaken, the nonspecific nature of the testimony will affect its weight
rather than its admissibility or the constitutionality of defendant’s trial.
In this case defendant received notice of the evidence to be introduced,
through the prosecution’s filing of a written notice of intent to offer evidence of
defendant’s sexual and physical assaults upon his ex-wife, as well as the sworn
statement she made to the prosecution (which was provided to the defense before
trial) and her testimony at the hearing held to determine the admissibility of the
statement. Defendant had the opportunity to confront the available witness (his
ex-wife) at trial, and the jury was instructed that before it could consider such
evidence in aggravation, it must find beyond a reasonable doubt that defendant
committed any violent offense against his ex-wife. Other than unsupported
allegations, defendant makes no showing how the “generic” nature of this
testimony denied him the opportunity to respond. (Cf. Jones, supra, 51 Cal.3d at
pp. 319-320 [observing it is unlikely a defendant who had continuous access to a
victim over a significant period of time would offer an alibi or misidentification
defense, and a defendant can respond to the generic testimony of a victim by
choosing to testify or by attacking the victim’s credibility in other ways].)
Indeed, the response made by defendant to his ex-wife’s testimony
apparently was sufficiently effective to cause at least the trial court to entertain
138
doubts about her veracity. Regardless of the trial court’s view of the evidence, and
keeping in mind the objective of presenting the jury with a view of defendant’s
character as complete as possible, we cannot conclude, as a matter of law, that the
testimony was insufficient to enable any rational juror to find beyond a reasonable
doubt that defendant committed a violent offense against his ex-wife. The absence
of testimony associating particular acts with specific dates may have affected the
weight of the evidence, but did not render the testimony so unreliable that as a
matter of constitutional due process the jury should not have been permitted to
consider it as potential evidence in aggravation.
b. Admission of Evidence of Defendant’s Juvenile Misconduct
Defendant contends evidence of his sexual assaults upon Rebecca Y.,
Brian M., and Cori H., should not have been admitted because defendant was a
juvenile at the time of the incidents, and thus his actions were the “impetuous and
ill-considered” product of his youth and immaturity and the admission of this
evidence violated his constitutional rights to due process and a reliable verdict.
This claim was not raised at trial and therefore is forfeited. (People v. Pinholster
(1992) 1 Cal.4th 865, 959-960.) In any event, defendant’s characterization of this
evidence was a proper subject for argument to the jury concerning the weight it
should be accorded, but does not establish that the jury’s consideration of his
juvenile adjudications was constitutional error. Moreover, as defendant observes,
we have rejected several similar statutory and constitutional challenges to the
admission of juvenile adjudications as evidence in aggravation. (See People v.
Lucky (1988) 45 Cal.3d 259, 295; People v. Burton (1989) 48 Cal.3d 843, 862;
Raley, supra, 2 Cal.4th at pp. 909-910; People v. Lewis (2001) 26 Cal.4th 334,
376-380.)
139
c. Admission of Evidence of the Lactawen Murder
Prior to trial, defendant filed an in limine motion to exclude evidence of the
Lactawen murder from the penalty phase or, in the alternative, to compel joinder
of all three murder cases into one trial and to change the venue of the trial of the
consolidated charges to Sacramento County.53 Defendant contends denial of this
motion and the subsequent admission of the Lactawen evidence was error and
denied him his constitutional rights to confront the witnesses against him, to
present a defense, and to be accorded due process and a reliable penalty verdict.
Like the defendant in People v. Avena (1996) 13 Cal.4th 394, 429, defendant here
essentially argues that “because no trier of fact had decided his guilt of the
[Lactawen] murder beyond a reasonable doubt when evidence of that offense was
admitted, he was placed in the untenable position of either (i) testifying and
denying the crime, whereupon he would lose the privilege against compelled self-
incrimination for a future trial in the [Lactawen] matter, or (ii) remaining silent,
thereby leaving the evidence of his guilt unrebutted.” Accordingly, defendant
asserts that out of fear of incriminating himself at a future trial, he was coerced
into forgoing the opportunity to present mitigating evidence (or at least to
controvert aggravating evidence) at the penalty phase. (Ibid.) As in Avena, we
reject this contention because a defendant’s being compelled to make such a
choice does not violate his or her constitutional rights. (Ibid.)54
53
At the time the motion was filed, no charges had been filed relating to the
Lactawen killing.
54
Defendant also argues that the prosecutor’s comment during closing
argument upon the lack of any defense evidence rebutting the proof that defendant
murdered and raped Lactawen, somehow rendered the trial court’s admission of
the evidence constitutional error. He is mistaken. The trial court, in response to
defense counsel’s objection that this comment was “Griffin error,” admonished the
jury that the burden of proof as to the section 190, factor (b) other-offenses
(footnote continued on next page)
140
d. Exclusion of Evidence Regarding Sentence of Life Imprisonment
Without the Possibility of Parole
Defendant sought to admit the testimony of an employee of the California
Department of Corrections concerning the conditions of prison confinement such
as the size of cells, the restrictions upon prisoners’ activities, the lack of privacy,
the treatment of sexual offenders by other inmates, and the availability of prison
programs for defendant’s benefit. The trial court denied the request, based upon
our decision in People v. Thompson (1988) 45 Cal.3d 86, 138-139. Defendant
contends the exclusion of this evidence was error under section 190.3 and in
various ways violated his due process and Eighth Amendment rights. “Evidence
concerning the rigors of confinement has no bearing on the character or
background of the individual offender or the circumstances of the capital offense.
It is therefore irrelevant and inadmissible under section 190.3, factor (k).” (People
v. Ray (1996) 13 Cal.4th 313, 352-353 (Ray); see also Thompson, supra, 45 Cal.3d
at p. 139 [“Describing future conditions of confinement for a person serving life
without possibility of parole involves speculation as to what future officials in
another branch of government will or will not do”].) “Moreover, even under the
Eighth Amendment to the federal Constitution, the trial court retains the authority
to exclude irrelevant evidence in the first instance. (See Lockett v. Ohio (1978)
438 U.S. 586, 604, fn. 12.)” (Frye, supra, 18 Cal.4th at p. 947, fn. 1; see also
DeSantis, supra, 2 Cal.4th at pp. 1249-1250.) There was no statutory error or
(footnote continued from previous page)
evidence remained upon the prosecution, and that defendant bore no burden in that
regard. Contrary to defendant’s assertion, the prosecutor’s comment did not
somehow relate back to the decision to admit the Lactawen evidence in the first
instance. The comment, to the extent it may have been improper, is a matter
wholly separate from the admission of this evidence. We discuss in part II.E.4.g,
post, whether the prosecutor’s remark constituted “Griffin error.”
141
violation of defendant’s constitutional rights in the exclusion of the proffered
evidence.
3. Asserted Instructional Errors
a. Failure to Define Sentence of Life Imprisonment Without the
Possibility of Parole
Defendant contends the trial court erred by failing to instruct the jury on its
own motion concerning the meaning of a sentence of life imprisonment without
the possibility of parole, and thereby caused “an unfair, capricious and unreliable
penalty determination and prevented the jury from giving effect to the mitigating
evidence presented at the penalty phase in violation of the Sixth, Eighth and
Fourteenth Amendments.” Defendant’s reliance upon Simmons v. South Carolina
(1994) 512 U.S. 154 and other United States Supreme Court cases arising from the
State of South Carolina is misplaced. As we previously have explained, juries in
California specifically are instructed in capital cases that the choice of penalty is
between a sentence of death and one of life imprisonment without the possibility
of parole, and not merely life imprisonment — as the juries were instructed in
Simmons and similar cases. (People v. Smith (2003) 30 Cal.4th 581, 635-636
(Smith).) There was no error.
b. Failure to Instruct Regarding the Presumption of Innocence and
to Define Reasonable Doubt Regarding Other-crimes Evidence
Defendant contends the trial court erred by failing to reinstruct the jury at
the penalty phase that he was presumed to be innocent of the section 190.3, factor
(b) other-crimes evidence until his guilt of those offenses was proved beyond a
reasonable doubt, and by failing to redefine the term “reasonable doubt.”
Defendant did not preserve this challenge by raising it in the trial court, and thus
has forfeited it. It also is meritless, because the court informed the jury that the
guilt phase instructions applied during the penalty phase except when the court’s
142
penalty phase instructions differed, and the jury was provided with a copy of the
written guilt phase instructions, which discussed the presumption of innocence and
the meaning of reasonable doubt. The trial court also specifically instructed the
jury concerning defendant’s right not to testify during the penalty phase and
instead to rely upon the failure of the prosecution to carry its burden of proof,
further informing it that the factor (b) evidence was to be considered by the jury
only if it found the crimes had been proved beyond a reasonable doubt.
Additional instructions could have emphasized this, but were not required.
c. Failure to Instruct Regarding Which Guilt Phase Instructions
Applied at the Penalty Phase
Defendant contends the trial court erred by not rereading all of the still-
applicable guilt phase instructions at the penalty phase, or at least informing the
jury which specific instructions remained applicable. Defendant did not raise this
claim below and therefore has forfeited it. If we were to reach the merits of
defendant’s claim, we would conclude there was no error in the trial court’s
instruction as to the general continued applicability of guilt phase instructions
subject to specific exceptions. (Lewis and Oliver, supra, 39 Cal.4th at p. 1067;
People v. Hawthorne (1992) 4 Cal.4th 43, 73-74.)
We agree with defendant, however, that two limiting instructions given at
the guilt phase were inapplicable at the penalty phase and should not have been
included in the written instruction packet provided to the jury: a modified version
of CALJIC No. 1.00, which in part instructed the jury to “reach a just verdict
regardless of the consequences,” and a modified version of CALJIC No. 3.32,
which in part instructed the jury it could consider evidence of defendant’s mental
condition “solely for the purpose of determining whether or not the defendant
actually formed any intent or mental state which is an element of the crimes
143
charged.”55 The trial court’s error in failing to delete these instructions, however,
was harmless under any standard.
Despite the inclusion of CALJIC No. 1.00 in the packet of written
instructions, as other instructions and counsel’s arguments made clear, the jury’s
role at the penalty phase was so obviously contrary to this part of the instruction
that no reasonable juror possibly could have been confused by the inclusion of the
written instruction not to consider the consequences of the verdict, an instruction
that was not given orally to the jury at the penalty phase. (People v. Hayes (1990)
52 Cal.3d 577, 644; People v. Howard (1988) 44 Cal.3d 375, 443.)
Similarly, with regard to the erroneous inclusion of CALJIC No. 3.32, the
trial court, consistent with CALJIC No. 8.85, orally instructed the jury that during
the penalty phase, “[i]n determining which aggravating and mitigating factors are
to be applied and in deciding which penalty is to be imposed on the Defendant,
you are to consider all of the evidence which has been received during both the
guilt and penalty phases of the trial, except as you might be specifically instructed.
[¶] Your consideration of that evidence and your deliberations are to be in
accordance with these instructions and the instructions which I have previously
given you with certain specific exceptions that I will note for you in these
instructions.” The court then told the jury it was to consider in mitigation “any
aspect of the crimes or of the Defendant’s character, background and record that
55
We shall assume for the sake of argument that defendant contends the
inclusion of these instructions at the penalty phase constituted incorrect statements
of the law regarding the jury’s role at that phase of the trial and, therefore, that
defendant did not forfeit these claims despite his failure to object at trial. (See
Hudson, supra, 38 Cal.4th at p. 1012 [the general rule of forfeiture “does not
apply when . . . the trial court gives an instruction that is an incorrect statement of
the law”].)
144
suggests that death is not the appropriate punishment,” “any sympathetic or other
aspect of the Defendant’s conduct or record, and any sympathetic aspect of his
character, upbringing and childhood circumstance that the Defendant offers as a
basis for a sentence less than death, whether or not related to the offenses for
which he’s been convicted” and, even more specifically, “[w]hether the Defendant
was subjected to sexual or other abuse as a child and whether such abuse
contributed to his criminal conduct.” This modified version of CALJIC No. 8.85
also was provided to the jury in written form. The arguments of defense counsel
and the prosecutor further explained that defendant’s asserted mental condition
could be considered in mitigation. Accordingly, the clear import of the
instructions as a whole, in conjunction with counsel’s arguments, was that such
evidence could be considered as mitigating evidence, beyond the limitation of its
use at the guilt phase.
d. Failure to Clarify Instruction Under Section 190.3, Factor (d),
Regarding Mental Disturbance
Defendant contends the trial court erred by not instructing the jury it could
consider in mitigation evidence of defendant’s mental or emotional disturbance at
the time of the crimes “regardless of whether there was a reasonable explanation
or excuse for such disturbance.” He did not preserve an objection to the trial
court’s instruction on this mitigating factor and therefore has forfeited this claim.
(Hudson, supra, 38 Cal.4th at pp. 1011-1012.) In any event, there is no likelihood
that the instruction as given, which modified the standard instruction to indicate
that the jury could consider mental or emotional disturbance even if it was not a
defense to the substantive charges, would have confused the jury or prevented it
from considering the evidence offered by the defense in mitigation.
145
e. Asserted Unconstitutionality of CALJIC No. 8.88
Defendant
raises
several
challenges
to CALJIC No. 8.88, which described
for the jury the general process by which it was to reach its penalty verdict. To the
extent defendant contends the instruction was an incorrect statement of the law,
this claim is not forfeited despite his failure to challenge the instruction below, and
we shall therefore assume this claim is preserved. (See Hudson, supra, 38 Cal.4th
at p. 1012.) These challenges, however, are without merit, as we previously have
held. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 123-124 [the use
of terms “so substantial” and “warrants” in the instruction is not unconstitutionally
vague or misleading; the instruction does not fail adequately to inform the jury
that the death penalty may be imposed only if aggravating factors outweigh
mitigating factors or that a sentence of life imprisonment without possibility of
parole is required if evidence in mitigation outweighs evidence in aggravation; the
jury need not be informed that it may impose life imprisonment without possibility
of parole even if evidence in aggravation outweighs evidence in mitigation].)
4. Asserted Prosecutorial Misconduct
As mentioned above, a prosecutor commits reversible misconduct under
California law if he or she makes use of “deceptive or reprehensible methods” in
attempting to persuade either the trial court or the jury, and it is reasonably
probable that without such misconduct, an outcome more favorable to the
defendant would have resulted. (People v. Strickland, supra, 11 Cal.3d 946, 955.)
Under the federal Constitution, conduct by a prosecutor that does not result in the
denial of the defendant’s specific constitutional rights — such as the denial that
ensues from a comment upon the defendant’s invocation of the right to remain
silent — but is otherwise worthy of condemnation, is not a constitutional violation
unless the challenged action “ ‘so infected the trial with unfairness as to make the
146
resulting conviction a denial of due process.’ ” (Darden, supra, 477 U.S. at
p. 181, quoting DeChristoforo, supra, 416 U.S. at p. 643.)
Defendant
first
claims
that the alleged prosecutorial misconduct at the guilt
phase carried over to the penalty phase, making that part of the trial unfair and
unreliable as well. We have concluded that there is no merit in any of defendant’s
claims of guilt phase misconduct, even assuming they properly were preserved and
can be raised on appeal. We therefore reject defendant’s claim that the penalty
phase was tainted by earlier misconduct.
a. Reading of Transcripts During Opening Statement
Defendant
contends
the prosecutor committed misconduct by reading
extensively, during his opening statement at the penalty phase, from the transcript
of defendant’s interviews with the officers concerning the Lactawen murder. This
claim lacks merit because the reading of the transcripts was not deceptive,
reprehensible, or otherwise improper.
b. Argument That Death Penalty Was Required
Defendant takes issue with a preliminary statement in the prosecutor’s
closing argument, that “[i]t is no secret that I am going to be asking you based
solely on this evidence and the law in this case and everything you have heard
concerning this case over the last, oh, approximately two to three months since the
first witness was called, that I believe this evidence, this evidence alone, requires
the maximum punishment allowed by California law.” Defendant contends this
was an inaccurate statement of the law and also minimized the jury’s role in
determining the penalty, because “a death verdict is never required or preordained
by the state of the evidence.” This claim, like the majority of the following claims
of misconduct, has not been preserved for appellate review due to defendant’s
failure to object and request an admonition. In any event, there was no
147
misconduct, because the comment, viewed in context, was simply proper
argument by the prosecutor concerning his view of the state of the evidence.
(People v. Mayfield, supra, 14 Cal.4th at p. 804 [“it is not misconduct for a
prosecutor in the penalty phase of a capital case to express in argument a personal
opinion that death is the appropriate punishment, provided the opinion is grounded
in the facts in evidence”].)
c. Argument Assertedly Minimizing Jurors’ Sense of Responsibility
Defendant
contends
the
prosecutor engaged in misconduct by urging the
jurors not to “feel guilty about making this kind of decision, [or be] afraid to make
the hard decision you have to make,” and by observing that “hundreds of juries”
previously have made penalty decisions. Even if it had not been forfeited by
defense counsel’s failure to object, this claim is without merit, because the
statements, taken in context, simply admonished the jury to follow the law in its
deliberations and in no way minimized the “hard decision” faced by the jury.
d. Comment upon Defendant’s Absence During His Mother’s
Testimony
Defendant contends, again for the first time on appeal, that the prosecutor’s
comment upon defendant’s decision to absent himself during his mother’s
testimony, as proof that defendant’s own guilt phase testimony was false,
constituted (1) an improper comment upon defendant’s exercise of his
constitutional rights, (2) an improper suggestion that the jury should consider this
circumstance as an aggravating factor in the penalty determination, and (3) unfair
exploitation of the trial court’s decision to exclude evidence concerning the
molestation of defendant’s mother by her father.56 No misconduct occurred.
56
The prosecutor stated: “Here is a person who blames, essentially, his
mother and says the most ridiculous assertions of what his mother did to him as he
(footnote continued on next page)
148
Concerning the second and third claims, the prosecutor’s comment constituted
proper rebuttal to the character evidence presented by the defense in mitigation,
and not a suggestion that this was an aggravating factor (People v. Mayfield,
supra, 14 Cal.4th at p. 804, fn. 15), and, as discussed ante, in part II.C.1.c, because
the evidence of molestation allegedly committed by defendant’s grandfather
properly was excluded, the prosecutor’s comment did not take unfair advantage of
the court’s ruling.
The prosecutor’s remarks also did not improperly penalize any assertion by
defendant of his constitutional rights. No error based upon Griffin v. California
(1965) 380 U.S. 609 (Griffin) occurred, because the prosecutor’s comment was
directed to defendant’s waiver of his constitutional right to be present, not the
assertion of some constitutional right, such as the right to remain silent at issue in
Griffin. (Compare Griffin, supra, 380 U.S. at p. 614 [The practice of allowing
comment upon the defendant’s failure to testify “is a penalty imposed by courts
for exercising a constitutional privilege. It cuts down on the privilege by making
its assertion costly.”].) Simply, there is no constitutional right to be voluntarily
absent during trial. (Frye, supra, 18 Cal.4th at p. 1011 [“[T]hese qualifications to
the right to be present [namely, waiver and removal for disruption] do not confer
an affirmative right to be absent from trial. Nor are we aware of any decision
recognizing a concomitant right of the defendant not to be present or to otherwise
avoid being confronted with the witnesses against him.”].)
(footnote continued from previous page)
grew up; and I would suggest to you he lied extensively about what his mother
may have done to him, and then didn’t have the guts in this courtroom to sit here
while his lawyers questioned her about having sexual intercourse with him,
because he couldn’t look her in the eyes with those ridiculous lies.”
149
Moreover, this is not a situation such as was present in Doyle v. Ohio
(1976) 426 U.S. 610, where the defendant was misled concerning the possible
effect of his choice to be absent. In the present case, defendant was, in fact,
advised several times that voluntarily absenting himself likely would be
detrimental to his defense, and he acknowledged he realized this before he was
allowed to waive his presence. Nor was defendant faced with the “Hobson’s
choice” of having to relinquish one constitutional right in order to preserve
another. (See Simmons v. United States (1968) 390 U.S. 377, 394.)
The circumstance that, as we observed above, it was statutory error for the
trial court to allow defendant to voluntarily absent himself during his mother’s
testimony does not render the prosecutor’s comment upon his absence misconduct.
(Cf. Visciotti, supra, 2 Cal.4th at p. 82 [“Regardless of whether an appellate court
may later conclude that a piece of evidence was erroneously admitted, argument
directed to the evidence does not become misconduct by hindsight.”].)
e. Asserted Exploitation of Exclusion of List from Sorensen’s
Address Book
As he did in his guilt phase prosecutorial misconduct claims, discussed
ante, in part II.C.6.f, defendant asserts that the prosecutor committed misconduct
in the penalty phase argument by taking unfair advantage of the exclusion of the
list of names in Sorensen’s address book. In light of the lack of objection at trial,
this claim has not been preserved for appeal. Moreover, as discussed above,
because this evidence properly was excluded, the prosecutor took no unfair
advantage.
f. Argument Assertedly Calling for the Jury to Speculate
Regarding the Circumstances of the Murders
Echoing another guilt phase misconduct claim, defendant contends the
prosecutor engaged in misconduct at the penalty phase by suggesting to the jury it
150
should consider evidence of the physical trauma to Lactawen in filling in the gaps
in the evidence regarding the Garcia and Sorensen murders and the condition of
their bodies immediately after defendant murdered them.57 Defendant claims this
argument improperly invited the jury to speculate, misstated the evidence,
“violated the propensity rule” by arguing that all three murders were committed in
the same manner, and improperly sought to inflame the passions of the jury.
Defendant did not object or request an admonition, and therefore has forfeited this
claim. In any event, no misconduct occurred. For the same reasons we stated
ante, in part II.C.6.d, the argument challenged here fairly suggested inferences the
jury properly could draw from the evidence presented at trial, especially in light of
the striking similarities among the murders, and left for the jury the decision
whether to accept or reject those suggestions. (See also People v. Slaughter
(2002) 27 Cal.4th 1187, 1212 [at the penalty phase, the prosecutor is permitted “to
invite the jurors to put themselves in the place of the victims and imagine their
suffering”]; People v. Lewis (2001) 25 Cal.4th 610, 672 [“At the penalty phase of
a capital trial, a prosecutor is permitted to argue any reasonable inferences from
properly admitted evidence of a defendant’s prior violent crime, even if such
57
The prosecutor stated, “And I want you to imagine, if you can, when you
are assessing the weight to give to the way Mr. Rundle killed and sexually tortured
these women, try to consider the humiliation, terror and pain each of these women
underwent at the hand of that man before he violently strangled them. . . . [¶] And
I think that for you to really consider what Ms. Garcia and Ms. Sorensen went
through at the hands of Mr. Rundle, that it will assist you — and I’m not asking
you to do it, but if you think you need to — look again at Ms. Lactawen’s pictures.
She was found the same day. [¶] As I told you in my final argument a month or
so ago, because the defendant was very clever in concealing these bodies, those
photographs could not graphically show you what he did to Ms. Garcia and Ms.
Sorensen. If you want to get an inkling of the violence he performed on each of
those women, take a look at Ms. Lactawen’s photograph one more time if you
think it is necessary.”
151
inferences relate to the defendant’s character as revealed in the prior violent crime
itself or in its surrounding circumstances”]; Ray, supra, 13 Cal.4th at pp. 349-350
[§ 190.3, factor (b) permits the jury’s consideration of “evidence of violent
criminality committed at any time in the defendant’s life, and whether or not
adjudicated, to show his propensity for violence”]; People v. Kelly (1990) 51
Cal.3d 931, 964 [photographs of victims properly were admitted at penalty phase
when they supported the prosecution’s theory of the crimes and were not “unduly
gruesome”].)
g. Reference to the Absence of a Defense to the Lactawen Murder
During his penalty phase argument, the prosecutor stated, with regard to the
section 190.3, factor (b) evidence, “And we all know, you didn’t see any defense
to any of these crimes. We didn’t see anything presented to rebut testimony about
Ms. Lactawen’s murder.” When defendant objected to this statement as “Griffin
error” (see Griffin, supra, 380 U.S. 609) the trial court reminded the jury that the
burden to prove the factor (b) evidence rested upon the prosecution and that
defendant bore no burden. Defendant contends on appeal that the prosecutor’s
comment violated defendant’s constitutional right to choose not to testify, and that
the trial court’s admonition was insufficient to cure the alleged error. He is
mistaken.
The People assert the prosecutor’s comments properly emphasized the
absence of evidence controverting the prosecution’s evidence. (See People v.
Mitcham (1992) 1 Cal.4th 1027, 1051.) Even if we were to assume otherwise, as
urged by defendant — that the prosecutor’s comment violated defendant’s
constitutional right to refrain from testifying, under Griffin, supra, 380 U.S. 609
(see People v. Johnson (1992) 3 Cal.4th 1183, 1229 (Johnson)), because only his
own testimony could have rebutted the evidence against him — we would
152
conclude that any misconduct was harmless beyond a reasonable doubt. The
prosecutor’s statement was, at most, “an indirect, brief and mild reference to
defendant’s failure to testify as a witness.” (People v. Mincey, supra, 2 Cal.4th at
p. 446.) The prosecutor did not suggest that the jury should draw any additional
inference of guilt from defendant’s failure to testify beyond the inference of guilt
established by the evidence that had been presented. “Such references have
uniformly been held to be harmless error.” (Id. at p. 447; People v. Hovey (1988)
44 Cal.3d 543, 572.) Moreover, the overwhelming proof that defendant
committed the Lactawen murder, and the trial court’s timely admonition to the
jury regarding the burden of proof and its instruction that the jury could not draw
any adverse inference from defendant’s decision not to testify at the penalty phase,
further ameliorated any possibility of harm. (People v. Carter (2005) 36 Cal.4th
1215, 1267.) Accordingly, any misconduct would have been harmless beyond a
reasonable doubt.
Defendant also contends the prosecutor’s statement took unfair advantage
of the denial of defendant’s in limine motion to exclude the Lactawen murder
evidence, because the prosecutor “place[d] appellant in an untenable position and
subsequently argue[d] that the choice appellant was forced to make supported
sentencing him to death.” Even if defendant had not forfeited this claim by failing
to raise it below, we would conclude that it fails because, as discussed above, any
possible misconduct would have been harmless beyond a reasonable doubt.
h. Asserted Denigration of Defendant’s Evidence in Mitigation
Defendant
claims
the
prosecutor
engaged in misconduct by arguing “the
entire defense in this case is to blame others,” by calling the defense that had been
presented “penalty phase madness,” and by referring to defendant as a “snitch” in
discussing his assistance to the authorities at the jail. In view of the lack of
153
objection at trial, these challenges have been forfeited. They also lack merit.
There was nothing deceptive or reprehensible about these comments, and they did
not, individually or cumulatively, improperly denigrate defendant’s evidence in
mitigation.
i. Asserted Suggestion That Lack of Evidence in Mitigation Was an
Aggravating Circumstance
Defendant
contends
the prosecutor’s argument highlighted what the
prosecutor viewed as a lack of evidence in mitigation and accordingly was an
indirect invitation to the jury to find that the absence of such evidence constituted
an aggravating factor. (See People v. Davenport (1985) 41 Cal.3d 247, 289-290.)
Defendant did not object or request an admonition in response to this argument
and therefore has forfeited this challenge. In any event, the prosecutor never
stated that the absence of a statutory mitigating factor amounted to an aggravating
factor; to the contrary, he described such a circumstance as “neutral.” There is
nothing improper in arguing that mitigating factors are not present and that, by
contrast, the facts of the crimes are aggravating factors under section 190.3, factor
(a) — which is the argument made by the prosecutor in this case. (Clark, supra,
5 Cal.4th at pp. 1030-1031.)
j. Argument That Personality Disorder Was Not a Mitigating
Factor
Defendant
contends
the
prosecutor engaged in misconduct by arguing that
the absence of psychosis in this case, as testified to by the expert witnesses,
demonstrated that mitigating factors based upon defendant’s mental state
(section 190.3, factors (d) and (h)) were inapplicable. Defendant forfeited this
claim by not objecting at trial, but in any event it is without merit. The challenged
argument generally constituted permissible comment upon the state of the
evidence and did not misstate the law, especially in light of the proper instructions
154
given to the jury. It is true the prosecutor twice inaccurately described the experts’
opinions concerning whether defendant suffered from a mental illness or defect.58
The prosecutor’s comments were brief, however, and the jury was instructed on
various occasions during the trial that statements by the attorneys were not
evidence. Moreover, the prosecutor did not argue simply that because there was
no diagnosis of psychosis, these factors in mitigation were inapplicable. Rather he
discussed at length defendant’s “personality disorder” and ultimately argued the
evidence was not mitigating. Finally, defense counsel did not argue that defendant
suffered from a mental disease or defect, and, in fact, seemed to agree with the
prosecutor’s assessment of the experts’ testimony.
k. Argument Regarding the Role of Evidence in Mitigation
Defendant takes issue with the prosecutor’s argument at various points that
mitigation involved lessening defendant’s “responsibility” and “culpability.”
Defendant argues this was misconduct because it misstated the law, in that the jury
is to consider “[a]ny other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime.” (§ 190.3, factor (k).) Again,
the lack of an objection and request for an admonition forfeited this claim.
Moreover, we discern no misconduct. The prosecutor’s isolated remarks
regarding responsibility and culpability, even if erroneous, were not so significant
as to overshadow the prosecutor’s other correct statements of the definition of
mitigation. The prosecutor in no way argued that the jury could not consider
defendant’s evidence in mitigation, and in fact he discussed essentially the entire
58
The prosecutor twice stated that all three experts agreed that defendant did
not suffer from a disease or mental defect, whereas only one so testified, another
described defendant’s character disorder as a mental defect, and the third was not
asked to give an opinion on this subject.
155
defense case and often pointed out that it was for the jury to determine whether
and to what degree particular evidence amounted to a mitigating factor. Any
possible misconduct would be of minimal significance, and was rendered even less
potentially harmful by defendant’s penalty phase argument, which stressed the
jury’s ability to consider mercy and sympathy, and the trial court’s proper
instructions on the scope of the mitigating factors.
l. Cumulative Impact of Asserted Penalty Phase Prosecutorial
Misconduct
Finally, defendant summarizes the various claims of guilt and penalty phase
misconduct discussed above, arguing pervasive misconduct occurred that
cumulatively denied him his rights under the Eighth and Fourteenth Amendments
to a fair and reliable penalty determination. He also argues this misconduct
excuses his numerous failures below to object to the alleged instances of
misconduct he has raised on appeal (see Hill, supra, 17 Cal.4th at p. 821), and
that, beyond this, we should abolish the longstanding requirement that defendant
object and request an admonition if doing so would not be futile.
As with his guilt phase claims, we decline defendant’s invitation to
eliminate the requirement that defendants afford trial courts an opportunity to
remedy in the first instance any prosecutorial misconduct that may have occurred
during trial. Furthermore, we have not found any misconduct in this case. Even in
the few instances discussed above in which we have assumed that misconduct may
have occurred, we have concluded beyond a reasonable doubt that any misconduct
would have been harmless. We therefore conclude there was no pervasive
prosecutorial misconduct that excused defendant’s failure to object and to request
an admonition, or that denied defendant his constitutional right to a reliable and
fair penalty proceeding.
156
5. Challenges to the Constitutionality of California’s Death Penalty
Statute
Defendant reiterates various constitutional challenges to California’s death
penalty law, all of which we repeatedly have rejected. Defendant does not provide
any persuasive reason for us to reexamine our prior decisions.
Section 190.3, factor (a), which directs the jury to consider in determining
the penalty the “circumstances of the crime,” is neither impermissibly vague nor
overbroad, and does not result in an arbitrary or capricious penalty determination.
(People v. Harris (2005) 37 Cal.4th 310, 365 (Harris); Stitely, supra, 35 Cal.4th at
p. 574; Maury, supra, 30 Cal.4th at p. 439.) Because capital defendants are not
situated similarly to noncapital defendants, California’s death penalty law does not
deny equal protection of the laws by depriving capital defendants of certain
procedural rights accorded noncapital defendants. (Johnson, supra, 3 Cal.4th at
pp. 1242-1243; People v. Allen (1986) 42 Cal.3d 1222, 1286-1287.) Accordingly,
the jury may consider unadjudicated offenses under section 190.3, factor (b) as
aggravating factors without violating a defendant’s rights to a fair trial,
confrontation, an impartial and unanimous jury, due process, and a reliable penalty
determination. (People v. Sapp (2003) 31 Cal.4th 240, 316 (Sapp); People v.
Bolden (2002) 29 Cal.4th 515, 566.)
The use of terms such as “extreme,” “reasonably believed,” and “at the time
of the offense” in the list of potential mitigating factors does not impermissibly
restrict the jury’s consideration of evidence in mitigation or otherwise result in an
arbitrary or capricious penalty determination. (Harris, supra, 37 Cal.4th at p. 365;
Sapp, supra, 31 Cal.4th at p. 316; Maury, supra, 30 Cal.4th at p. 439.)
“The statute is not invalid for failing to require (1) written findings or
unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a
reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a
157
reasonable doubt, or (4) findings that death is the appropriate penalty beyond a
reasonable doubt.” (Snow, supra, 30 Cal.4th at p. 126.) The decisions in Ring v.
Arizona (2002) 536 U.S. 584 and Apprendi v. New Jersey (2000) 530 U.S. 466 do
not affect California’s death penalty law. (Smith, supra, 30 Cal.4th at p. 642.)
Moreover, “ ‘[b]ecause the determination of penalty is essentially moral and
normative [citation], and therefore different in kind from the determination of
guilt,’ the federal Constitution does not require the prosecution to bear the burden
of proof or burden of persuasion at the penalty phase. [Citations.]” (Sapp, supra,
31 Cal.4th at p. 317.)
Except as to “other crimes” evidence under section 190.3, factors (b) and
(c), the court need not instruct regarding any burden of proof, or instruct the jury
that there is no burden of proof at the penalty phase. (Carpenter, supra, 15
Cal.4th at pp. 417-418; see also Harris, supra, 37 Cal.4th 310, 360; People v. Box
(2000) 23 Cal.4th 1153, 1216.) The court need not omit from the instructions
factors that apparently are inapplicable. (Raley, supra, 2 Cal.4th at p. 919.) The
claim that section 190.3, factor (g), which concerns “extreme duress,” has no
relevance in this case and should not have been mentioned to the jury is of no
consequence, because defendant acted alone in perpetrating the murders. (Rogers,
supra, 39 Cal.4th at pp. 895-896.) There is no reasonable possibility that in light
of the instructions as a whole and the arguments of counsel, the jury could have
been misled by the inclusion of factor (g) to conclude that mitigating evidence
could not be considered unless it constituted a legal excuse for defendant’s crimes.
The statute is not invalid for failing to create a presumption in favor of a
sentence of life imprisonment without the possibility of parole, nor is the trial
court or this court required to engage in intercase proportionality review when
examining a death verdict. (Sapp, supra, 31 Cal.4th at p. 317.) The existence of
158
prosecutorial discretion in deciding in which cases the death penalty should be
sought does not render that punishment unconstitutional. (Ibid.)
F. Asserted Cumulative Error
Defendant contends the cumulative effect of the asserted errors requires
reversal of his conviction and death sentence even if none of the errors is
prejudicial individually. We disagree. In the few instances in which we have
found error or assumed the existence of error, we have concluded that any error
was harmless. These errors combined do not compel the conclusion that
defendant was denied a fair trial.
III. CONCLUSION
We affirm the judgment in its entirety.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
159
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Rundle
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S012943
Date Filed: April 3, 2008
__________________________________________________________________________________
Court: Superior
County: Placer
Judge: Richard L. Gilbert
__________________________________________________________________________________
Attorneys for Appellant:
Lynn S. Coffin and Michael J. Hersek, State Public Defenders, under appointments by the Supreme Court,
and Denise Anton, 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, Mary Jo Graves, Assistant Attorney General, Patrick J. Whalen and Michael P. Farrell, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Denise Anton
Deputy State Public Defender
221 Main Street, Tenth Floor
San Francisco, CA 94105
(415) 904-5600
Michael P. Farrell
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5246
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 04/03/2008 | 43 Cal.4th 76 original opinion 43 Cal.4th 705a modification | S012943 | Automatic Appeal | closed; remittitur issued | RUNDLE (DAVID) ON H.C. (S130722) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office Michael P. Farrell, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Rundle, David Allen (Appellant) Represented by Denise E. Anton Office of the State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| 3 | Rundle, David Allen (Appellant) Represented by Office Of The State Public Defender-Sf Evan Young 221 Main Street, 10th Floor San Francisco, CA |
| Disposition | |
| Apr 3 2008 | Opinion: Affirmed |
| Dockets | |
| Sep 21 1989 | Judgment of death |
| Nov 20 1989 | Filed certified copy of Judgment of Death Rendered 9-21-89. |
| Jan 11 1990 | Application for Extension of Time filed By Applt's Trial Counsel (Placer Co. Pub. Def.) to request correction of Record. |
| Jan 12 1990 | Extension of Time application Granted To Applt To 2-9-90 To request Corr. of Record. |
| Oct 21 1992 | Counsel appointment order filed James F. Johnson, Esq. appointed to represent appellant on his automatic appeal, including any related habeas proceedings. |
| Dec 8 1992 | Application for Extension of Time filed By Applt to request correction of Record. |
| Dec 14 1992 | Extension of Time application Granted To Applt To 2-8-93 To request Corr. of Record. |
| Dec 14 1992 | Received: Suppl Cert. of Service of motion for Ext. of Time. |
| Feb 8 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 10 1993 | Extension of Time application Granted To Applt To 4-9-93 To request Corr. of Record. |
| Apr 8 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 9 1993 | Extension of Time application Granted To Applt To 5-19-93 To request Corr. of Record. |
| May 19 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| May 21 1993 | Extension of Time application Granted To Applt To 6-18-93 To request Corr. of Record. |
| Jun 18 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 23 1993 | Extension of Time application Granted To Applt To 7-19-93 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| Jul 19 1993 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jul 21 1993 | Extension of Time application Granted To Applt To 7-22-93 To request Corr. of Record. |
| Jul 28 1993 | Received: Copy of Applt's motion to Augment, correct, Examine Sealed Transcripts & to Settle Record (25 Pp.) |
| Aug 10 1993 | Compensation awarded counsel |
| Aug 30 1993 | Filed: Applt's request for Relief from Default (to file Record correction motion in Superior Court) |
| Aug 31 1993 | Order filed: Granting Applt's request for Relief from Default to file A motion for correction of Record. the Clerk of the Placer Co. Superior Court Is directed To file Applt's "motion To Augment, correct, Examine Sealed Transcript and To Settle Record in Automatic Appeal," received in that Office on 7-28-93. |
| Nov 17 1993 | Compensation awarded counsel |
| Oct 13 1994 | Compensation awarded counsel |
| Jan 4 1995 | Compensation awarded counsel |
| Mar 13 1995 | Filed: Notice of change of Atty James Johnson's Telephone Number. |
| May 2 1995 | Change of Address filed for: Resp Atty General's Sacramento Office. |
| Jan 14 1997 | Compensation awarded counsel |
| Jan 23 1997 | Record on appeal filed C-25 (6,928 Pp.) and R-38 (10,118 Pp.) (Includes Material Under Seal.); Clerk's Transcript includes 4,756 pages of Juror Questionnaires. |
| Jan 23 1997 | Appellant's opening brief letter sent, due: 3-4-97. |
| Mar 5 1997 | Application for Extension of Time filed To file Aob. |
| Mar 7 1997 | Extension of Time application Granted To 5-5-97 To file Aob. |
| May 14 1997 | Compensation awarded counsel |
| May 20 1997 | Application for Extension of Time filed To file Aob. |
| May 21 1997 | Extension of Time application Granted To 7-7-97 To file Aob. Any Future request for an Extension of time Shall be Served & filed before the Due Date. |
| Jul 8 1997 | Application for Extension of Time filed To file Aob. |
| Jul 18 1997 | Extension of Time application Denied To file Aob. Applt May file A Suppl Applic. with A Showing of Good Cause (See Cal. Rules of Court, Rule 43), and A Declaration Detailing the Progress Made to Date on the brief. |
| Aug 14 1997 | Application for Extension of Time filed To file Aob. |
| Sep 3 1997 | Order appointing State Public Defender filed Good cause not appearing, the application of appointed counsel James F. Johnson for an extension of time to file the AOB is denied. Johnson has been in default since 7-18-97, for failure to timely file an extension of time request with a declaration detailing case progress to date on the AOB. In view of the statements of Mr. Johnson contained in the motion for an extension of time to file the opening brief, filed on 8-14-97, declaring that he "has not been able to do any work on the present case since 3-17-97," that "[n]o facts statement has been written and no issues have been researched or briefed," and that he intends to file "a [m]otion to [w]ithdraw as counsel" from this case, the order appointing James F. Johnson as counsel of record for appellant David Allen Rundle, filed on 10-21-92, is hereby vacated. On the court's own motion, the Office of the State Public Defender is hereby appointed to represent appellant in his automatic appeal now pending in this court, including any related habeas corpus proceedings. Mr. Johnson is ordered to transmit forthwith all case files, transcripts and any other case-related materials to Mr. Emry Allen, Acting Chief Attorney, Office of the State Public Defender, 801 K St., Suite 1100, Sacramento, CA 95814. The Clerk/Administrator of the Supreme Court is directed to notify the State Bar of this action by forwarding to the State Bar a copy of this order removing counsel for his failure to perform work on the AOB with reasonable diligence since at least 3-17-97, and for his failure to show good cause for such lack of reasonable diligence. (See "Payment Guidelines for Appointed Counsel Representing Indigent Criminal Appellants in the California Supreme Court," Guideline V(A), adopted effective 7-30-97 ["Nonperformance of Counsel"].) Kennard, J., joins the court in denying counsel's motion for an extension of time. She does not, however, join the court in the other provisions of the court's order; she would have deferred action on this matter until receipt and review of the "Motion to Withdraw" that counsel indicated he would file with the court by 9-5-97. |
| Oct 14 1997 | Received letter from: Office of the State public Defender |
| Nov 26 1997 | Motion filed By Atty James F. Johnson for (1) recall of Referral to State Bar; (2) Vacate/Modify Order issued on 9-3-97; and (3) Payment in Full of Earned Fees. |
| Jan 28 1998 | Order filed: The motion filed on November 26, 1997, to (1) recall referral to State Bar, (2) vacate or modify order removing counsel and (3) pay further hourly compensation, is denied. |
| Mar 1 1999 | Letter sent to: Counsel Advising that AOB Is Due 4-30-99. |
| Apr 26 1999 | Application for Extension of Time filed To file Aob. |
| Apr 29 1999 | Extension of Time application Granted To 6-29-99 To file AOB |
| Jun 29 1999 | Application for Extension of Time filed To file Aob. |
| Jul 6 1999 | Extension of Time application Granted To 8-30-99 To file AOB |
| Aug 30 1999 | Application for Extension of Time filed To file Aob. |
| Sep 8 1999 | Extension of Time application Granted To 10/29/99 To file Aob. |
| Oct 29 1999 | Application for Extension of Time filed To file Aob. |
| Nov 4 1999 | Extension of Time application Granted To 12/28/99 To file Aob. in View of the Circumstance that the State Pub. Defender Was Appt as Replacement Counsel in this Matter More Than Two Years Ago, the Court Anticipates that Record Review will be Completed in the Matter within the Next Four Months, and that AOB will be filed Within Six Months Thereafter. |
| Dec 15 1999 | Application for Extension of Time filed To file Aob. |
| Dec 30 1999 | Extension of Time application Granted to 2/28/2000 to file AOB. In view of the circumstance that the State Public Defender was appointed as replacement counsel in this matter more than two years ago, the court anticipates that record review will be completed in this matter within the next two months and AOB filed within six months thereafter. |
| Feb 28 2000 | Application for Extension of Time filed To file Aob. |
| Mar 2 2000 | Extension of Time application Granted Based Upon Deputy State Pd Therene Powell's representation that She Plans to Complete Her Review of the Record and file A Supplemental Motion to correct, Augment and Settle the Record in the Superior Court on or before 4/28/00, Applt's request for an Extension of time to file The AOB Is granted to and Including 4/28/2000. |
| Apr 28 2000 | Application for Extension of Time filed To file Aob. |
| May 4 2000 | Motion filed Applt's Second Suppl motion to correct, Clarify, Augment and Settle the Record on Appeal |
| May 10 2000 | Filed: Suppl Declaration in support of request for Eot to file Aob. |
| May 16 2000 | Extension of Time application Granted To 6/27/2000 To file Aob. |
| Jun 27 2000 | Application for Extension of Time filed To file Aob. |
| Jul 3 2000 | Extension of Time application Granted To 8/28/2000 to file AOB. |
| Aug 23 2000 | Application for Extension of Time filed to file AOB. (9th request) |
| Aug 31 2000 | Extension of Time application Granted To 10/27/2000 to file AOB. |
| Oct 25 2000 | Application for Extension of Time filed To file AOB. (10th request) |
| Oct 26 2000 | Counsel's status report received (confidential) |
| Oct 31 2000 | Extension of Time application Granted To 12/26/2000 to file AOB. |
| Nov 9 2000 | Filed: resp's response to applt's second supplemental motion to correct, clarify, augment and settle the record. |
| Nov 20 2000 | Filed: Applt's reply to resp's response to second suppl. mtn to correct, clarify, augment and settle the record on appeal |
| Dec 20 2000 | Filed: Applt's addendum to second supplemental motion to correct, clarify, augment and settle the record on appeal |
| Dec 20 2000 | Application for Extension of Time filed To file AOB. (11th request) |
| Dec 20 2000 | Counsel's status report received (confidential) from State P.D. |
| Jan 2 2001 | Extension of Time application Granted To 2/26/2001 to file AOB. |
| Jan 22 2001 | Filed: Resp's response to applt's addendum to second supplemental mtn. to correct, clarify, augment and settle the record on appeal. |
| Jan 24 2001 | Filed: Applt's reply to response to addendum to second supplemental mtn. to correct, clarify, augment and settle the record on appeal. |
| Feb 15 2001 | Application for Extension of Time filed To file AOB. (12 request) |
| Feb 15 2001 | Counsel's status report received (confidential) |
| Feb 21 2001 | Order filed: Appellant's "Second Supplemental Motion to Correct, Clarify, Augment and Settle the Record on Appeal," filed on May 4, 2000, and amended on December 20, 2000 (hereafter collectively referred to as "appellant's motion"), is GRANTED IN PART AND DENIED IN PART. In the following respects, appellant's motion is GRANTED: A. The Placer County Superior Court is directed to conduct a hearing to address the completeness and accuracy of the certified record in this case, consistently with section 190.8, subdivision (c), of the Penal Code, and, to the extent possible, consistently with Rules 39.54 and 39.55 of the California Rules of Court. The hearing shall focus upon the proposed corrections to the Reporter's Transcript, listed in sections IIIA3 and IIIB2 of appellant's motion (pages 7-11, 13-17). If, after hearing the matter, the Placer County Superior Court determines that any ambiguity not falling within the purview of section 190.8, subdivision (c), cannot be resolved, that court is directed to issue an order directing the parties, within 60 days of the date of that court's order, to settle the record with regard to any such remaining ambiguity. B. The Placer County Superior Court is directed to conduct a hearing to address the completeness and accuracy of the record as to the proposed corrections listed in section IV of appellant's motion (pages 17-19), and, to the extent possible, consistently with those procedures set forth in Rules 39.54 and 39.55 of the California Rules of Court, to ascertain which of the trial court's orders -- the order of March 26, 1990, or the order of September 29, 1993 -- should control as to those requested corrections. C. The Placer County Superior Court is directed to order the clerk to compile, and to provide to counsel for all parties, a supplemental Clerk's Transcript on appeal, comprising any or all of those documents listed below, to the extent such documents are or have been located within the court's file in this matter. (Any document that is sealed and that properly should remain sealed (see rule 39.51(b) of the California Rules of Court), shall be included in a separate sealed supplemental Clerk's Transcript.) 1. A copy of the contents of the sealed envelope labeled "Juror Excuses," located in the Superior Court file. 2. A copy of the contents of the sealed envelope labeled "Ex Parte Order," located in the Superior Court file. 3. Copies of all pleadings filed in connection with appellant's petition for writ of prohibition and mandate, David Allen Rundle v. Superior Court, Placer County (People), Third District Court of Appeal, 3 Crim. C004582. 4. A copy of the petition for review filed in this Court, No. S006209, following the denial of the above-referenced petition for writ of prohibition and mandate by the Court of Appeal. 5. A copy of the notice of motion for order compelling appellant to submit blood and saliva samples, filed on or about February 8, 1987. (Placer County Municipal Court, case No. 3678-86.) 6. The Reporter's Transcript for proceedings conducted on November 16, 1987, in Department 1, before the Honorable James D. Garbolino, and in Department 4, before the Hon. Richard Gilbert, relating, at least in part, to the appointment of Laurance Smith as Keenan counsel for appellant. (See Keenan v. Superior Court (1982) 31 Cal.3d 424.) 7. Copies of the orders entitled "Order for Remand, Release from Custody, or Bail," dated as follows: March 31, 1987; April 27, 1987; August 10, 1987; October 13, 1987; January 11, 1988; March 7, 1988; April 12, 14, and 29, 1988; May 5 and 12, 1988; September 13, 1988; October 3, 6, 12, 1988; November 21, 1988; November 21, 1988; December 6, 13, 14, and 15, 1988; January 3, 4, 5, 6, 10, 11, 12, 18, 19, 20, 24, 25, 27, and 31, 1989; February 1, 2, 3, 7, 8, 24, 25, and 28, 1989; March 1, 2, 3, 6, 7, 8, 9, 14, 15, 16, 17, 22, 23, 24, 28, 29, and 31, 1989; April 3, 4, 5, 6, 11, 12, 13, 25, 26, and 27, 1989; May 3, 4, 9, 10, 15, 16, 17, 18, 19, 23, 24, 25, 30, and 31, 1989; June 1, 6, 7, 13, 14, 15, and 21, 1989; July 5, 1989; and September 19 and 21, 1989. 8. A copy of the letter from David W. Humphreys to James F. Johnson, dated May 26, 1995, on the letterhead of the Nevada County Public Defender. D. The Placer County Superior Court is directed to locate the sealed copies of documents filed confidentially under Penal Code sections 987.2 and 987.9, include them in a supplemental Clerk's Transcript, and transmit them under seal to appellant and this court only. E. The Placer County Superior Court is directed to conduct a hearing to address appellant's request for copies of People's Pretrial Motion Exhibits 1, 2, 19, 21, and 22, and People's Trial Exhibits 48 and 49, Defendant's Pretrial Motion Exhibits A and B, and Court's Exhibits 30 and 31. F. The Placer County Superior Court is ordered to direct the parties and the court reporters to convene in an effort to settle the record with regard to the 31 unreported matters cited at pages 24-26 of appellant's motion. G. The Placer County Superior Court is directed to determine whether the transcripts described in and appended to defendant's "Addendum to Second Supplemental Motion to Correct, Clarify, Augment and Settle the Record on Appeal," filed in this court on December 20, 2000, were "filed or lodged in the . . . superior court files in the case." (Cal. Rules of Court, rule 39.51(a)(1).) If that court determines that these transcripts were so filed or lodged, that court is directed then to cause them to become part of the Clerk's Transcript in a supplemental volume. If that court determines that the transcripts were not so filed or lodged, that court is directed to determine whether they were "exhibit[s] admitted in evidence or rejected" in the case. (Id., rule 33(a)(3).) If that court determines that the transcripts were not such exhibits, it is directed to determine whether they are identical to the transcripts found at Supp. CT 4697-4713, 4747-4754. If that court finds that the transcripts are not identical to those already contained in that supplemental Clerk's Transcript on appeal, that court is directed to determine whether the transcripts were presented to the court and/or the jury in the case, and, if so, that court is directed to cause the record on appeal to be augmented to include them in a supplemental volume as part of the Clerk's Transcript. H. Except as specifically noted above, appellant's motion is DENIED. |
| Feb 26 2001 | Extension of Time application Granted To 4/27/2001 to file AOB. |
| Apr 24 2001 | Counsel's status report received (confidential) from State P.D. |
| Apr 24 2001 | Application for Extension of Time filed To file AOB. (13th request) |
| May 14 2001 | Extension of Time application Granted To 6/26/2001 to file AOB. |
| Jun 22 2001 | Application for Extension of Time filed to file AOB. (14th request) |
| Jun 25 2001 | Counsel's status report received (confidential) from State P.D. |
| Jul 11 2001 | Extension of Time application Granted To 8/27/2001 to file AOB. |
| Aug 22 2001 | Application for Extension of Time filed To file AOB. (15th request) |
| Aug 22 2001 | Counsel's status report received (confidential) from State P.D. |
| Aug 29 2001 | Extension of Time application Granted To 10/26/2001 to file AOB. |
| Sep 18 2001 | Counsel's status report received (confidential) |
| Oct 25 2001 | Application for Extension of Time filed To file AOB. (16th request) |
| Oct 25 2001 | Counsel's status report received (confidential) |
| Oct 31 2001 | Extension of Time application Granted To 12/26/2001 to file AOB. |
| Dec 21 2001 | Request for extension of time filed To file AOB. (17th request) |
| Dec 21 2001 | Counsel's status report received (confidential) from State P.D. |
| Jan 2 2002 | Extension of time granted To 2/25/2002 to file AOB. Sr. Dep. State PD Anton anticipates filing the brief by the last full week of 5/2002. Only two further extensions totaling 96 additional days are contemplated. |
| Feb 20 2002 | Request for extension of time filed To file AOB. (18th request) |
| Feb 20 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 1 2002 | Extension of time granted To 4/26/2002 to file AOB. The court anticipates that after that date, only one further extension totaling 36 additonal days will be granted. Counsel is ordered to take all steps necessary to meet this schedule. |
| Apr 23 2002 | Request for extension of time filed To file AOB. (19th request) |
| Apr 23 2002 | Counsel's status report received (confidential) from State P.D. |
| Apr 30 2002 | Extension of time granted To 6/25/2002 to file AOB. Sr. Dep. State Public Defender Anton anticipates filing the brief by 6/25/2002. No further extension is contemplated. |
| Jun 21 2002 | Counsel's status report received (confidential) |
| Jun 21 2002 | Request for extension of time filed To file AOB. (20th request) |
| Jun 24 2002 | Letter sent to: Hon. James D. Garbolino, Presiding Judge of Placer County Superior Court, requesting response within seven days regarding the status of proceedings regarding completeness and accuracy of the record, ordered by this court on 2-21-2001. |
| Jun 26 2002 | Extension of time granted To 8/26/2002 to file AOB, in light of the proceedings for preparing the record on appeal in the Superior Court of Placer County. |
| Aug 22 2002 | Request for extension of time filed to file AOB. (21st request) |
| Aug 23 2002 | Counsel's status report received (confidential) |
| Aug 26 2002 | Extension of time granted Good cause appearing, and in light of the proceedings for preparing the record on appeal presently pending in the Superior Court of Placer County, Senior Deputy State Public Defender Denise Anton's request for an extension of time in which to file AOB is granted to 10-25-2002. |
| Sep 6 2002 | Filed: additional record: clerk's 4th supplemental, 2 vols. (515 pp.); and one vol. sealed (335 pp.) |
| Sep 19 2002 | Received letter from: respondent, dated 9-16-2002, advising case has been reassigned to Deputy A.G. Michael P. Farrell. |
| Oct 3 2002 | Received letter from: applt, dated 10-1-2002, regarding 4th supplemental clerk's transcript. |
| Oct 22 2002 | Counsel's status report received (confidential) |
| Oct 22 2002 | Request for extension of time filed To file appellant's opening brief. (22nd request) |
| Oct 29 2002 | Extension of time granted Good cause appearing, and in light of the proceedings for preparing the record on appeal presently pending in the Superior Court of Placer County, Senior Deputy State Pubilc Defender Denise Anton's request for an extension of time in which to file appellant's opening brief is granted to 12/24/2002. After that date, no further extension is contemplated. |
| Dec 23 2002 | Motion to augment AA record filed Appellant's motion. |
| Dec 23 2002 | Application to file over-length brief filed to file appellant's brief. (560 pp. brief submitted under separat cover) |
| Dec 31 2002 | Order filed Appellant's application for leave to file opening brief longer than 280 pages is granted. |
| Dec 31 2002 | Appellant's opening brief filed (560 pp.) |
| Jan 7 2003 | Counsel's status report received (confidential) |
| Jan 15 2003 | Filed: certified copy of "Declaration of Appeals Clerk," pages 516-518, filed in the Placer County Superior Court on September 4, 2002. |
| Jan 15 2003 | Filed: certified copy of "Interview by Sacramento Police Detectives Placer County Jail, November 21, 1986, 10:30 pm," pages 1-8. |
| Jan 15 2003 | Record augmentation granted Appellant's "Motion to Augment Record on Appeal," filed on December 23, 2002, is granted. The clerk is directed to file, as part of the record on appeal herein, and to provide appellant and respondent with copies of the following documents: (1) "Interview by Sacramento Police Detectives Placer County Jail, November 21, 1986, 10:30 pm," pages 1-8; and (2) "Declaration of Appeals Clerk," pages 516-518, filed in the Placer County Superior Court on September 4, 2002. |
| Jan 17 2003 | Request for extension of time filed to file respondent's brief. (1st request) |
| Jan 21 2003 | Extension of time granted to 3/3/2003 to file respondent's brief. |
| Jan 24 2003 | Filed: Notice of service of service, on appellant, of appellant's opening brief, appellant's motion to augment the record, and appellan'ts application to file oversize brief. |
| Feb 13 2003 | Counsel's status report received (confidential) (supplemental) |
| Feb 14 2003 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Feb 20 2003 | Extension of time granted to 5-2-2003 to file resp's brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension granted based upon Deputy AG Farrell's representation that he anticipates filing the brief by 7-31-2003. |
| Apr 1 2003 | Counsel's status report received (confidential) |
| Apr 14 2003 | Counsel's status report received (confidential) from State P.D. |
| Apr 17 2003 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Apr 24 2003 | Extension of time granted to 7/1/2003 to file respondent's brief. After that date, only one further extension totaling 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Michael P. Farrell's representation that he anticipates filing that brief by 7/31/2003. |
| Jun 13 2003 | Counsel's status report received (confidential) from State P.D. |
| Jun 23 2003 | Request for extension of time filed to file respondent's brief. (4th request) |
| Jun 25 2003 | Extension of time granted to 9/2/2003 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Michael P. Farrell's representation that he anticipates filing that brief by 10/31/2003. |
| Aug 12 2003 | Counsel's status report received (confidential) from State P.D. |
| Aug 27 2003 | Request for extension of time filed to file respondent's brief. (5th request) |
| Sep 3 2003 | Extension of time granted to 10/31/2003 to file respondent's brief. Extension is granted based upon Deputy Attorney General Michael Farrell's representation that he anticipates filing that brief by 10/31/2003. After that date, no further extension will be granted. |
| Oct 9 2003 | Counsel's status report received (confidential) from State P.D. |
| Oct 23 2003 | Motion filed (in AA proceeding) respondent's "Application for Order Directing Superior Court to Unseal Transcripts." |
| Oct 30 2003 | Application to file over-length brief filed (290 pp. respondent's brief submitted under separate cover) |
| Nov 3 2003 | Order filed Respondent's application to file respondent's brief in excess of 280 pages is granted. |
| Nov 3 2003 | Respondent's brief filed (290 pp.) |
| Nov 3 2003 | Filed: Table of Contents and Table of Authorites for respondent's brief. |
| Nov 6 2003 | Note: received voicemail message from Deputy State Public Defender Anton advising that no opposition will be filed to respondent's application filed on 10-23-2003. |
| Nov 18 2003 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Nov 19 2003 | Record ordered unsealed Respondent's "Application for Order Directing Superior Court to Unseal Transcripts," incorporating an application directly to this court to unseal transcripts, is granted. The Clerk is directed to unseal pages 8330-8338, 8345-8358, 8445-8461, 8488-8494, 9586-9620, and 9629-9642 of the reporter's transcript herein, and to provide copies of those pages to appellant and respondent. |
| Nov 26 2003 | Extension of time granted to 1/23/2004 to file appellant's reply brief. After that date, only three further extensions totaling 150 additiondl days will be granted. Extension is granted based upon Senior Deputy State Public Defender Denise Anton's representation that she anticipates filing that brief by 6/30/2004. |
| Jan 26 2004 | Request for extension of time filed to file reply brief. (2nd request) |
| Jan 27 2004 | Counsel's status report received (confidential) |
| Jan 28 2004 | Extension of time granted to March 23, 2004 to file appellant's reply brief. After that date, only two further extensions totaling 90 additional days will be granted. Extension is granted based upon Deputy State Public Defender Denise Anton's representation that she anticipates filing that brief by June 30, 2004. |
| Feb 9 2004 | Counsel's status report received (confidential) |
| Mar 16 2004 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Mar 19 2004 | Extension of time granted to 5/21/2004 to file appellant's opening brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Denise Anton's representation that she anticipates filing that brief by 6/30/2004. |
| Apr 6 2004 | Counsel's status report received (confidential) |
| May 27 2004 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| May 28 2004 | Extension of time granted to 7-21-2004 to file reply brief. After that date, no further extension will be granted. Extension granted based upon Senior Deputy SPD Denise Anton's representation that she anticipates filing the brief by 7-21-2004. |
| Jun 8 2004 | Counsel's status report received (confidential) from State P.D. |
| Jul 21 2004 | Appellant's reply brief filed (9,358 words - 45 pp.) |
| Jul 29 2004 | Received: letter from Deputy SPD Evan Young, dated 7-27-2004, advising that she personally served Rundle with reply brief on 7-27-2004. |
| Aug 6 2004 | Counsel's status report received (confidential) from State P.D. |
| Oct 5 2004 | Counsel's status report received (confidential) from State P.D. |
| Dec 3 2004 | Counsel's status report received (confidential) |
| Jan 14 2005 | Related habeas corpus petition filed (concurrent) No. S130722 |
| Dec 21 2006 | Exhibit(s) lodged People's: 48 and 49 (audio cassette tapes). |
| Oct 26 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the January 2008 calendar, to be held the week of January 7, 2008, 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. |
| Dec 4 2007 | Case ordered on calendar Wednesday, January 9, 2008, at 1:30 p.m., in San Francisco |
| Dec 13 2007 | Filed: appellant's focus issue letter, dated December 13, 2007. |
| Dec 13 2007 | Received: appearance sheet from Deputy SPD Denise Anton, indicating 45 minutes for oral argument for appellant. |
| Dec 17 2007 | Filed: declaration of service for focus letter sent to appellant by State P.D. |
| Dec 28 2007 | Filed: letter dated December 28, 2007 from appellant for oral argument citing authorities published since reply brief was filed. |
| Jan 9 2008 | Cause argued and submitted |
| Apr 2 2008 | Notice of forthcoming opinion posted |
| Apr 3 2008 | Opinion filed: Judgment affirmed in full opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno, Corrigan, JJ |
| Apr 18 2008 | Rehearing petition filed by appellant. (1,858 words; 8 pp.) |
| Apr 22 2008 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including July 2, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| May 14 2008 | Rehearing denied The opinion is modified on the court's own motion. The petition for rehearing is denied. |
| May 14 2008 | Opinion modified - no change in judgment |
| May 14 2008 | Remittitur issued (AA) |
| May 20 2008 | Received: receipt for remittitur acknowledged by superior court. |
| May 27 2008 | Exhibit(s) returned to Superior Court. People's exhibits no. 48 and 49. |
| May 30 2008 | Received: acknowledgment of receipt of exhibits from Placer County Superior Court. |
| Jul 7 2008 | Received: from appellant, copy of motion for leave to file petition for writ of certiorari in forma pauperis without affidavit of indigency. ((25 pp. excluding appendices) |
| Jul 11 2008 | Received: Letter from U.S.S.C. dated July 8, 2008, advising petition for writ of certiorari was filed on July 3, 2008, No. 08-5152. |
| Oct 27 2008 | Received: copy of "Reply to Respondent's Brief in Opposition to Petition for Writ of Certiorari" |
| Nov 5 2008 | Received: copy of respondent's brief in opposition to petition for writ of certiorari. |
| Nov 10 2008 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Dec 31 2002 | Appellant's opening brief filed |
| Nov 3 2003 | Respondent's brief filed |
| Jul 21 2004 | Appellant's reply brief filed |
