Filed 7/31/03
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S023628
v.
JOHN SAPP,
Contra Costa County
Defendant and Appellant.
Super. Ct. No. 33597-6
A jury convicted defendant John Sapp of the first degree murders of Robert
Weber, Elizabeth Duarte, and John Abono. (Pen. Code, § 187; further
undesignated statutory references are to the Penal Code.) For each murder, the
jury found that defendant personally used a firearm. (§ 12022.5.) With respect to
the murders of Weber and Duarte, the jury further found to be true special
circumstance allegations of multiple murder and murder for financial gain.
(§ 190.2, subd. (a)(1), (3).) In addition, the jury found defendant to be a convicted
felon in possession of a concealable firearm (§ 12021), and it found true an
allegation that defendant had served a prior prison term (§ 667.5, subd. (b)).
At the penalty phase, the jury returned verdicts of death for the Weber and
Duarte murders, and the trial court pronounced death sentences for those crimes.
For being a convicted felon in possession of a concealable firearm, the court
sentenced defendant to two years plus a one-year sentence enhancement.
This appeal is automatic. (§ 1239.) We affirm the judgment in full.
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I. GUILT PHASE
A. Prosecution’s Case
On April 25, 1986, in Grass Valley, Nevada County, California, defendant
was arrested on an outstanding warrant for being a felon in possession of a
concealable firearm. The next day, defendant confessed to three unsolved murders
in California: the 1985 murder of Robert Weber in Colusa County, the 1981
murder of Elizabeth Duarte, and the 1975 murder of John Abono, both in Contra
Costa County.
1. Murder of Robert Weber
In August 1985, defendant’s friend Robert Weber lived in Concord. He
was a “minor scale” cocaine dealer who was in debt to other drug dealers,
including defendant. On August 13, Weber told his girlfriend, Linda Brown, that
he and defendant were leaving for a few days to buy drugs. Weber took with him
$17,000, a sawed-off shotgun, and a 9-mm. semiautomatic handgun. Around 7
o’clock that evening, Weber telephoned Brown and told her he was in the town of
Clearlake with defendant but that the people they were planning to meet had not
shown up.
On August 17, 1985, defendant and an armed companion went to Weber’s
condominium. While there, defendant answered a telephone call from Brown,
who asked about Weber. Defendant told her he had waited for Weber in a motel
for three days but that Weber never showed up. (Actually, defendant and Weber
had stayed at the El Grande motel in Clearlake the nights of August 13 and 14.)
On August 18, two deer hunters found a man’s body, later identified as
Weber’s, on a hillside on Walker Ridge in Colusa County, about 18 miles from
Clearlake. Sheriff’s deputies summoned to the scene found bloodstains and four
expended 9-mm. casings a short distance from Weber’s body. Weber had died of
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multiple gunshot wounds to the head, back, chest, throat and both arms. He had
been dead at least 24 hours when the hunters discovered his body.
While in custody some eight months later in Nevada County, after his arrest
on the warrant for being a felon in possession of a concealable firearm, defendant
discussed the Weber killing with Deputy Steven McCulloch of the Colusa County
Sheriff’s Department. Defendant led McCulloch to the site at Walker Ridge
where he had killed Weber. Defendant mentioned that Weber was walking in
front of him on top of a hill, and when Weber turned around, defendant shot him
several times with a 9-mm. pistol. Defendant then dragged Weber’s body some
distance and rolled it over the side of the hill, noting that shrubbery stopped it
from rolling farther down the hill.
The area was the same location where, earlier in August 1985, hunters had
discovered the body, and sheriff’s deputies had found bloodstains and expended
9-mm. casings.
Defendant denied that Weber had any money on him when killed.
According to defendant, “It was murder for hire.” Defendant said that some
people, whom he refused to name, had paid him $10,000 in advance to kill Weber,
and defendant then devised a bogus drug deal to lure Weber to the remote area
outside Clearlake.
In December 1986, while awaiting trial in this case, defendant wrote to
Weber’s brother Michael: “Thought I’d write you one and only letter to let you
know something that’s been eating away at me since your brother’s death. It’s
obvious who pulled the trigger. I’m curious if you ever think about who put the
‘thing’ in motion or who put up the ‘money’ to have it done. Those people are
still out there just like you are. Your brother died being a good friend of mine. He
owed me $32,000 but that’s not the reason he died. You’re probably relieved
about my situation but you should still keep in mind the other ‘responsibles’
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involved besides myself. I was used as a ‘tool’ and nothing else. . . . I’m certainly
not innocent of many things that I’ve been accused of but concerning your brother
I was only a ‘tool’ used by the ‘other people.’ After I’m executed or if I am
executed those ‘other people’ will still be out there. Sometimes I wish they would
be executed right along side of me. They deserve it also in my opinion.”
2. Murder of Elizabeth Duarte
In 1976, defendant worked at the Chevron Research in Richmond, Contra
Costa County, where he met coworker Elizabeth Duarte. The two dated for
several years, but in July 1980, Duarte obtained a restraining order against
defendant. Around the same time, she began dating another coworker, James
Luddon.
Late in the evening of January 24, 1981, Duarte’s father came to her house
in Richmond and picked up her five-year-old son. Duarte’s father brought the
child back the next morning, but Duarte was not there. Later that day, the father
notified the Richmond police that his daughter was missing.
On January 26, Richmond police investigator Patricia McKittrick talked
with defendant about Duarte’s disappearance. When defendant asked if he was
suspected of murder, McKittrick told him “no.” Defendant volunteered that
Duarte made him “so mad” he wanted “to kill her.” According to defendant, on
January 24 (when Duarte disappeared), he had gone fishing, and he did not return
until the next day. At the end of the interview, defendant said: “If I am not a
suspect, I ought to be; I had a dream the other night that [Duarte] got shot in the
head.”
Police obtained a warrant and searched defendant’s van on February 1,
1981. Caked dirt was on its clutch, gas and brake pedals, and dried human blood
consistent with Duarte’s (type A) was on the floor.
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After his arrest in Nevada County in April 1986, defendant discussed
Duarte’s murder with Richmond Detective Michael Tye. Defendant said that he
and Duarte had a “love-hate” relationship. He decided “to get rid of her because
the love-hate was not balancing out anymore,” and only hate was left. Although
defendant decided to kill Duarte for personal reasons (she had arranged for a hit
man to shoot 20 rounds from a high-powered rifle at his house), he did not do so
for some two months after making that decision. In the meantime, someone
offered him $20,000 to kill Duarte because she was a snitch.
For $800, defendant had James Luddon, whom Duarte dated after breaking
up with defendant, lure her to Luddon’s house.
On the evening of January 24, 1981, when Duarte arrived at Luddon’s
house, defendant was waiting in a bathroom. Defendant stepped into the hall and
hit Duarte in the head so hard it split her scalp wide open, exposing skull bone.
Defendant took Duarte in his van to his house, where he wrapped a bandage
around her head and gave her a blanket. The two then drove to the Lime Ridge
area of Mount Diablo, where defendant had earlier dug a grave. They talked all
night and defendant at one point handed Duarte his .38-caliber revolver, telling her
to shoot him. Just as the sun was coming up, defendant shot Duarte once in the
stomach. She told him to shoot her again, and he “emptied the gun into her.”
Defendant added that he had buried Duarte wrapped in the blanket.
On April 27, 1986, defendant led Detective Tye to the area of Duarte’s
killing. There, police recovered human remains wrapped in a blanket and with a
bandage wrapped around the skull. Several .38-caliber bullets were found nearby.
Dental records established that the remains were those of Elizabeth Duarte. She
had been shot in the chest at least four times.
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3. Murder of John Abono
On December 22, 1975, 22-year-old John Abono was living in Concord,
Contra Costa County. In the late afternoon, Abono and his friend Tim Bowler
went to buy some marijuana from defendant, a longtime friend of Abono’s.
Bowler had given Abono $200 to $300 to buy two pounds of marijuana. Abono
drove by defendant’s house, and pointed it out to Bowler, who did not know
defendant. Bowler noticed a Volkswagen parked in front. Abono, who was
driving, parked his sports car nearby. Bowler got out of the car and walked home,
leaving Abono to buy the drugs.
That evening, after waiting in vain for Abono and the marijuana, Bowler
drove by defendant’s house several times. When Bowler drove by between 7:00
and 8:00 p.m. and again around 11:00 p.m., he noticed that the Volkswagen was
gone but that Abono’s car was still parked on the street.
Shortly after Abono’s disappearance, Concord Police Officer Richard
Berendsen talked to defendant. Defendant said he knew he was suspected of
killing Abono because Abono had once “snitched” on him. Defendant claimed,
however, that Abono had “simply left town” out of fear of defendant, and that
Abono would eventually come back.
After his April 1986 arrest for being a felon in possession of a concealable
firearm, defendant spoke with Concord Police Officer Jim Webster about killing
Abono some 10 years earlier. Defendant and Abono had been close friends for
many years, but defendant became annoyed with Abono over “bad dope deals.”
Defendant explained: “[Abono] put me in a situation of messing with heroin
dealers. Just bad business. He was doing too many bad drug deals. He was lying.
. . . [and] a heroin addict.” So defendant decided to kill him and did so “within a
few days.”
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Defendant gave these details of the murder: Defendant met Abono to
transact a marijuana purchase. Abono appeared to be high on heroin. Defendant
put a gun to Abono’s head and took him to an area near Castle Rock on Mount
Diablo, Contra Costa County. He made Abono walk for about 45 minutes to an
isolated area. Defendant then shot him several times in the head. Initially,
defendant covered Abono’s body with brush, but he later returned with a shovel
and buried the body.
The area where defendant killed Abono was not too far from where he later
killed and buried Elizabeth Duarte. Defendant directed police officers to the area
of Abono’s killing, but they did not find Abono’s body.
B. Defense Case
To support a defense that defendant tends to falsely confess to crimes he
did not commit and therefore that his confessions in this case could not be
believed, defendant called Contra Costa County Deputy District Attorney
Lawrence Barnes as a witness. Barnes testified that while defendant was awaiting
trial in this case defendant admitted killing one Roger Gardner. Counsel for the
prosecution and the defense stipulated that Barnes was an “expert in judging the
credibility of witnesses.” Barnes thereafter gave his opinion that defendant’s
confession to killing Gardner was false, and that the actual killer was Larry Leroy
Brownson, whom Barnes had prosecuted for the crime in 1986 and 1987.
To show that he had killed Elizabeth Duarte for personal reasons -- after
she had a hit man shoot at him -- defendant called Thomas Pompileo, who in 1980
had been his next-door neighbor. Pompileo described an incident in which
Elizabeth Duarte visited defendant and left after a loud argument. Shortly
thereafter, a man standing on the freeway fired several shots from a high-powered
rifle in the direction of defendant’s house.
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II. PENALTY PHASE
A. Prosecution’s Case
The prosecution presented evidence of defendant’s 1981 felony conviction
for recklessly setting fire to an inhabited dwelling, and of five unadjudicated
crimes. These crimes were defendant’s possession in 1971 (at age 18) of a sawed-
off shotgun; his possession in 1986, while in jail awaiting trial in this case, of a
homemade knife or shank; the 1985 murder of defendant’s mother, Geraldine
Sapp; and the attempted murders of Al Redenius in 1983 and of Donna Smith in
1986.
1. Attempted murder of Al Redenius
Shortly after 9 o’clock on the morning of November 9, 1983, Redenius was
outside his house in Willits, Mendocino County, when he was shot in the face,
neck, and hip from a shotgun fired from a car occupied by Brian Magidson, Herb
Powell and a third man. Earlier that morning, Dave Clement had seen defendant
at Magidson’s house with Magidson and Powell. In April 1986, when defendant
was arrested for being a felon in possession of a concealable firearm, he told the
police that he was paid $10,000 to kill Redenius and that he had fired three
shotgun blasts at Redenius, hitting him in the face.
2. Murder of Geraldine Sapp and attempted murder of Donna Smith
We discuss these two unadjudicated crimes in the course of certain penalty
phase issues. (See pts. VI. B.1 & C, post.)
B. Defense Case
Through many witnesses, the defense presented evidence of defendant’s
difficult childhood, including pathological behavior by his mother, Geraldine
Sapp; his devotion and helpfulness to friends and relatives, particularly to his son
Richard; and his extreme and chronic substance abuse dating from his early teens.
Mental health professionals testified that defendant showed signs of organic brain
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damage and brain dysfunction. Defendant’s son Richard, who at the time of
defendant’s trial was 20 and confined at the California Youth Authority for car
theft, asked the jurors to spare his father’s life. Raymond Procunier, the former
Director of the California Department of Corrections, who for 40 years had
worked in various penal systems, interviewed defendant and concluded that he
would make a good “life” prisoner. Procunier said: “[Defendant] is willing to
take his medicine, and I would have confidence if I were a warden that he [would]
behave himself and do what he is supposed to do and accept whatever came down
on him if he didn’t and not cause me any problems.”
III. PRETRIAL ISSUES
A. Withdrawal and Appointment of Counsel
Trial in defendant’s capital case was scheduled to start on February 14,
1989, in Contra Costa Superior Court before Judge Norman Spellberg. At that
time, defendant’s counsel of record was the Contra Costa County Public Defender,
Charles James, who had been appointed in May 1986.
On January 30, 1989, Public Defender James filed an affidavit of conflict,
stating that his office “refuses to represent defendant because of a conflict of
interest.” On February 1, James appeared before Judge Spellberg and reasserted
the existence of a conflict. But the deputy public defender assigned to the case,
who was also present in court, said there was no conflict, and he asked the court to
let him continue as defendant’s attorney. When the court asked defendant for his
view, defendant replied: “I would like to keep [the deputy] as my attorney at this
point.” The court denied the deputy’s request, giving these reasons: “The Public
Defender is Mr. James. He has conflicted in this matter. And if he conflicts, there
is no appropriate basis for you [the deputy] to insist that you remain as
[defendant’s] attorney.” The deputy, citing Harris v. Superior Court (1977) 19
Cal.3d 786 (Harris), insisted that defendant was entitled to a hearing on the
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request that the assigned deputy remain his counsel. The deputy added that he
would take a leave of absence from the public defender’s office if necessary to
continue as defendant’s attorney.
The trial court ruled that because of the declared conflict, “the [Office of
the Contra Costa County] Public Defender no longer represents [defendant].” It
appointed Attorney Stephen Houghton as counsel for defendant regarding the
issues raised by the public defender’s declaration of a conflict. And it set a
hearing for February 3, 1989, to consider both the possibility of defendant’s
waiver of the asserted conflict and defendant’s motion for appointment of the
deputy to represent him as private counsel after leaving the public defender’s
office.
Before the February 3 hearing date, the prosecution filed a brief asserting
that defendant had a right to know the basis for the public defender’s conflict.
Defendant too filed a brief, citing Harris, supra, 19 Cal.3d 786, as authority for
the trial court to appoint as private counsel the deputy (who had offered to leave
the public defender’s office) because of the “special relationship” defendant had
formed with him during the two-year period that the deputy had been assigned to
work on this case. On February 3, Judge Spellberg transferred the attorney
conflict matter to Superior Court Judge Michael Phelan.
Judge Phelan immediately convened an in camera hearing. Present were
Public Defender James, defendant, and Attorney Houghton. The court excluded
the prosecutor to protect defendant’s attorney-client privilege. The court asked
James why he had declared a conflict.
In response, James detailed numerous problems with his assigned deputy,
including the following: Complaints by experienced investigators that the deputy
had not adequately prepared the case for trial; James’s own assessment that the
deputy had not developed a coherent trial theory; and reports by former
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supervisors (the public defenders in other counties where the deputy had worked)
that he often had “outbursts of rage,” followed by periods in which he seemed
“catatonic, unable to perform his job at all.” One former employer told James he
was shocked that the deputy had been assigned a capital case, given his lengthy
history of “mental health issues.”
James also explained that on January 11, 1989, less than five weeks before
the scheduled trial date, Rebecca Young, an attorney working as a law clerk and
assisting on defendant’s case, “walked off the job” after the assigned deputy
screamed at her and threatened her with a hammer. Young told Public Defender
James that the deputy had “blanched in the face, foamed in the mouth, [and] shook
with rage.” He then ran from the office into a parking lot, where he “yelled about
the Sapp case at the top of his lungs in earshot of the District Attorney’s office.”
A few days thereafter, James received a letter from the private investigator
firm most recently employed on defendant’s case. The firm had experience in
some 25 capital matters. The letter described defendant’s case as being “in a state
of basic shambles” and revealed that the firm’s investigators had witnessed
inappropriate outbursts and unprofessional conduct by the deputy, including a
request for an investigator to impersonate a police officer when interviewing
certain potential witnesses. When the investigators suggested that the deputy
seemed unstable, he falsely accused them of unprofessional behavior and ordered
them off the case.
Public Defender James explained to the trial court that just two weeks
before the scheduled trial, he faced the following problems: The deputy had
alienated everyone who was assisting him; left with “no investigator, no support
staff,” he was inadequately prepared to go to trial. James called the deputy into
his office and told him he was considering declaring a conflict. The deputy
responded by cupping his hands over his ears and running from the office. After
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discussing the problem “in the abstract” with current and former public defenders
of other counties and with the president of the California Public Defenders
Association, James concluded that he had no choice but to declare a conflict.
Public Defender James added that although defendant wanted the deputy to
continue to represent him, defendant had previously complained about the deputy.
James mentioned that in January 1988, defendant wrote to James requesting that
his case be assigned to a different deputy public defender. Defendant had stated
that the assigned deputy did not have defendant’s interest at heart, and that there
was no longer an attorney-client relationship. Defendant wanted to have
psychological issues explored but the deputy had not arranged for any
psychological or psychiatric evaluation. In response to defendant’s letter, James
met with defendant and persuaded him that the assigned deputy was an excellent
lawyer and should remain on the case. But a year later, defendant telephoned the
deputy’s assistant, Rebecca Young, and again expressed dissatisfaction with his
representation. When Young mentioned this to the deputy, he told her not to have
further contact with defendant.
The trial court then took a recess so Attorney Houghton could confer with
defendant. Thereafter, the hearing resumed in open court. Houghton stated that
he had discussed with defendant “all aspects of the –the allegations, and instances
of the behavior chronicled by Mr. James,” but that defendant still wanted the
deputy to represent him and therefore asked to “execute the appropriate waivers”
so the court could appoint the deputy as private counsel to represent defendant.
The trial court ruled that notwithstanding Public Defender James’s
declaration of a conflict of interest, “this is not factually a conflict of interest
case.” Rather, as the court characterized it, defendant’s appointed counsel, Public
Defender James, had “represented to the court that [his] assigned deputy is
incapable of competently handling this case at trial.” The court expressed “grave
12
misgivings” whether a defendant could waive the right to competent appointed
counsel, and it found that the criteria of Harris, supra, 19 Cal.3d 786, had not been
satisfied. It then vacated the public defender’s appointment as counsel of record
and denied defendant’s request for appointment of the deputy as private counsel to
represent defendant.
Trial in defendant’s case did not begin until some two years later, in
January 1991. At trial, defendant was represented by private Attorneys Stephen
Houghton and Marlene Weinstein. Assisting them was Rebecca Young, who had
left the public defender’s office and was working as a private attorney.
Defendant now contends that the rulings by Judges Spellberg and Phelan
denied him the right to counsel. Specifically, defendant argues that he should
have been permitted to waive any conflict of interest preventing representation
either by the public defender’s office or by the deputy who was taken off this case,
who by taking a leave from the public defender’s office could have represented
defendant as private counsel. Defendant further asserts that once the trial court
vacated the public defender’s appointment as counsel of record, defendant’s
“special relationship” with the assigned deputy public defender entitled him to
have that attorney appointed as his counsel of record. (Harris, supra, 19 Cal.3d
786.) We are not persuaded.
A criminal defendant’s right to counsel is guaranteed by both the federal
Constitution’s Sixth Amendment (applicable to the states through the Fourteenth
Amendment), and by the California Constitution article I, section 15. The
essential aim “is to guarantee ‘an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be represented by the lawyer
whom he prefers.’ ” (People v. Bonin (1989) 47 Cal.3d 808, 834, quoting Wheat
v. United States (1988) 486 U.S. 153, 159.) Questions of appointment and
removal of counsel, at least when counsel seeks to withdraw, are addressed to the
13
trial court’s sound discretion. (People v. Daniels (1991) 52 Cal.3d 815, 846;
Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934-935.)
Here, defendant’s counsel of record was Contra Costa County Public
Defender James. (See 59 Ops.Cal.Atty.Gen. 27 (1976) [“In cases handled by the
public defender’s office, it is the officeholder who is the attorney of record.”].) As
public defender, James had the authority to assign any of his deputies to represent
defendant in this case (see Mowrer v. Superior Court (1969) 3 Cal.App.3d 223,
231) and also to seek his own removal from the case (Code of Civ. Proc., § 284).
James asked the trial court to allow him to withdraw from defendant’s capital case
based upon his evaluation that his assigned deputy was unprepared for the
upcoming capital trial, for the reasons we discussed earlier in detail. Because of
the extraordinary circumstances surrounding the matter, the trial court did not
abuse its discretion in allowing Public Defender James to withdraw as counsel.
Defendant insists that our decision in Harris, supra, 19 Cal.3d 786, entitled
him to continued representation by the assigned deputy public defender, who was
willing to leave the public defender’s office and accept appointment as private
counsel in defendant’s case. Under Harris, a trial court contemplating
appointment of private counsel to represent a criminal defendant must take into
account whether the defendant has a preexisting relationship with an attorney
willing to accept appointment. (Id. at p. 799.) But even when such a relationship
exists, Harris acknowledges that a trial court need not appoint that attorney when
there are “countervailing considerations of comparable weight.” (Ibid.) Here, the
facts described by Public Defender James at the in camera hearing raised serious
concerns about his assigned deputy’s ability to competently represent defendant,
thus constituting the requisite countervailing considerations. Under these
circumstances, defendant suffered no infringement of his constitutional right to
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counsel because the trial court refused to appoint the attorney as defendant’s
counsel.
Also of no assistance to defendant is Smith v. Superior Court (1968) 68
Cal.2d 547. In that case, this court set aside a trial court’s order removing a
private attorney from the retrial of a capital case for purported incompetence. The
attorney had successfully represented the defendant in his automatic appeal,
securing a complete reversal. The trial court’s removal of the attorney suggested
not so much that the attorney lacked the ability to competently try the case as it did
the existence of a personality conflict between the trial judge and the attorney. (Id.
at pp. 557-558.) That is not the situation here.
Defendant points out that the assigned deputy was not present at the in
camera hearing before Judge Phelan on February 3, 1989, and thus had no
opportunity to counter the version of events described by Public Defender James.
We note that on February 1, 1989, the deputy, represented by counsel, appeared
before Judge Spellberg and argued that no conflict prevented defendant’s
representation by the office of the public defender, and alternatively, that the trial
court should appoint him personally as private counsel to represent defendant. At
that hearing and again on February 3, Judge Spellberg ruled that Public Defender
James, not James’s deputy, was defendant’s attorney of record, and that the deputy
therefore lacked standing to oppose James’s motion to withdraw for a conflict of
interest. When Judge Spellberg then transferred the matter to Judge Phelan, the
deputy did not appear before Judge Phelan. Defendant, who was present and
represented by counsel, raised no objection to Judge Phelan’s deciding the matter
without hearing from the deputy. On these facts, defendant cannot complain that
his rights were violated.
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B. Motions to Sever Murder Counts
Before trial, defendant twice sought separate trials on each of the three
murder charges. The trial court denied those requests, and the same jury heard
evidence of all three offenses in a single trial. Defendant contends that the joint
trial of all three murder charges was fundamentally unfair, thus entitling him to
reversal. We disagree.
Section 954, which governs joinder of counts in a single trial, provides:
“An accusatory pleading may charge . . . two or more different offenses of the
same class of crimes or offenses, under separate counts . . . .” These statutory
requirements for joinder were met here because the three murder counts were
crimes “of the same class.” (People v. Mason (1991) 52 Cal.3d 909, 933.)1 But
section 954 also provides that “the court in which a case is triable, in the interests
of justice and for good cause shown, may in its discretion order that the different
offenses . . . be tried separately.” We review for abuse of discretion a trial court’s
decision not to try the offenses separately, that is, not to sever charges under this
provision. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1120; People v. Mayfield
(1997) 14 Cal.4th 668, 720.)
“ ‘ “The burden is on the party seeking severance to clearly establish that
there is a substantial danger of prejudice requiring that the charges be separately
tried.” [Citation.] . . . [¶] . . . Refusal to sever may be an abuse of discretion
where: (1) evidence on the crimes to be jointly tried would not be cross-
admissible in separate trials; (2) certain of the charges are unusually likely to
1
In June 1990, six months before the start of trial in this case, the California
electorate enacted Proposition 115, an initiative measure that, as relevant here,
changed the rules governing joinder and severance of criminal charges. (See Cal.
Const., art. I, § 30; § 954.1.) Because the parties stipulated that those new
provisions would not apply in this case, we do not consider them.
16
inflame the jury against the defendant; (3) a “weak” case has been joined with a
“strong” case, or with another “weak” case, so that the “spillover” effect of
aggregate evidence on several charges might well alter the outcome of some or all
of the charges; and (4) any one of the charges carries the death penalty or joinder
of them turns the matter into a capital case.’ ” (People v. Bradford (1997) 15
Cal.4th 1229, 1315.)
With respect to the first factor, defendant contends that if the three murder
counts had been tried separately, evidence of the other two would not have been
cross-admissible in any other trial because the crimes bore no common identifying
characteristics and thus were not probative of any of the factors listed in Evidence
Code section 1101, subdivision (b). But, as we explain, even if we assume that the
standards for cross-admissibility in the prosecution’s case-in-chief were not
satisfied here (see People v. Mason, supra, 52 Cal.3d at p. 934), the evidence of
the other two murders would have been cross-admissible on rebuttal in each other
case if tried separately.
This rebuttal evidence would have shown that, with respect to each murder
defendant confessed to, he knew the victim well (Abono was his best friend from
high school; Duarte was his former girlfriend; Weber was a drug dealer with
whom he did business). And evidence independent of defendant’s confession
linked him to each of the crimes (Abono was last seen going to buy drugs from
defendant; when Duarte disappeared, police searched defendant’s van and found
caked mud and blood of her blood type; Weber left for a drug-buying trip with
defendant days before his body was found). The evidence of the other murders,
including defendant’s confessions, would have been admissible to refute any
contention that defendant frequently made false confessions to murders or, if
defendant presented a mental state defense, to refute any contention that
premeditation and deliberation was absent from any murder. Accordingly,
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defendant suffered no prejudice from the trial court’s denial of the severance
motion.
Defendant argues that because Abono’s body was never found, the
evidence as to that murder case was relatively weaker than the evidence
supporting the other two counts of murder. Thus, defendant contends, the trial
court abused its discretion in not severing the Abono murder count from the other
two murders. We are not persuaded. As just discussed, the Abono killing
resembled the other two murders not only because defendant confessed to it, but
also because Abono, like the other victims, was close to defendant. The
circumstances of the Abono murder, therefore, satisfied the requirements for
cross-admissibility to rebut the defense claim that defendant falsely confessed to
the killings, thereby dispelling “ ‘any inference of prejudice.’ ” (People v.
Sandoval (1992) 4 Cal.4th 155, 173.)
As earlier explained, in determining whether a trial court abused its
discretion in denying a severance motion, we consider whether a capital offense
has been linked with a noncapital offense, and most particularly whether the
linkage “ ‘turns the matter into a capital case.’ ” (People v. Bradford, supra, 15
Cal.4th at p. 1315.) Here, as defendant points out, he could not be sentenced to
death for killing Abono because in 1975, when Abono was killed, there was no
death penalty law in effect in California. Accordingly, defendant contends that
trying that noncapital murder count with the two capital murder counts was an
abuse of discretion by the trial court. We disagree.
Although the first degree murder conviction on the count involving Abono
allowed the jury to find the existence of the multiple-murder special circumstance
(§ 190.2, subd. (a)3 [“The defendant, in this proceeding, has been convicted of
more than one offense of murder in the first or second degree”]), that conviction
was not crucial to the multiple-murder special-circumstance finding. The jury in
18
the same proceeding also returned first degree murder verdicts on the Duarte and
Weber murder counts, both charged as capital offenses. These verdicts would,
even if the same jury had not decided the charge involving Abono, provided the
basis for a true finding on the multiple-murder special-circumstance allegation.
Accordingly, the trial court’s decision to allow the jury in the same proceeding
that involved the murders of Weber and Duarte to also decide the charge involving
Abono did not result in any prejudice to defendant.
Having concluded that defendant suffered no prejudice from the joint trial
of the three murder counts, we also reject his contention that the joint trial violated
his due process rights. (See United States v. Lane (1986) 474 U.S. 438, 446, fn. 8
[“Improper joinder does not, in itself, violate the Constitution” but rather “ rise[s]
to the level of a constitutional violation only if it results in prejudice so great as to
deny a defendant his Fifth Amendment right to a fair trial”]; People v. Mendoza
(2000) 24 Cal.4th 130, 162.)
C. Failure to Bifurcate Trial on the Charge of Felon in Possession
of a Concealable Firearm
In addition to the three murder counts, defendant was convicted of a 1985
violation of section 12021. In 1985, that provision prohibited any person who had
been convicted of a felony offense from possessing any “firearm capable of being
concealed upon the person.” (Stats. 1983, ch. 1092, § 326.5, p. 4062.) In July
1981, defendant had been convicted of the felony of recklessly burning an
inhabited structure (§ 452, subd. (b)), the house of murder victim Duarte, who had
disappeared in January of that same year.
Before trial, the defense moved to “bifurcate” the trial on the felon in
possession of a firearm charge. Specifically, counsel stated that defendant was
“prepared to . . . waive jury on that [charge] . . . and have the Court . . . out of the
presence of the jury” decide it. The trial court, citing People v. Valentine (1986)
19
42 Cal.3d 170 (Valentine), denied the request. It stated that the question of being a
felon in possession of a firearm was for “the jury to determine,” and that case law
“has only given us one area where we can adjust that, . . . if there is a stipulation as
to the defendant’s status as an ex-felon, then the nature of the particular felony can
be withheld from the jury.” Defendant thereafter agreed to stipulate that he had
been convicted of a felony, and he asked the court “to sanitize” the felon-in-
possession charge such that “the details” of the underlying felony would be
“withheld from the jury.” At the end of the guilt phase trial, the court instructed
the jury under CALJIC No. 12.44 that “the previous felony conviction has already
been established . . . so that no further proof of that fact is required.”
Defendant now contends that the trial court’s ruling on the motion to
bifurcate was error requiring reversal. According to defendant, the trial court
misinterpreted Valentine, supra, 42 Cal.3d 170, as allowing only two options when
a prior conviction is a substantive element of a current charge: Either the
defendant admits to having a prior conviction and the court “sanitizes” the prior by
keeping from the jury the nature of the offense, or the prosecution proves the prior
conviction in open court. Defendant argues that Valentine allows a third option:
full bifurcation of trial on the charge involving a prior conviction by having the
trial court decide the charge outside the jury’s presence. Defendant misconstrues
Valentine.
This court’s 1986 decision in Valentine, supra, 42 Cal.3d 170, interpreted
article I, section 28, subdivision (f) of the California Constitution, added to the
Constitution by Proposition 8, an initiative that the California electorate passed in
1982. It states: “When a prior felony conviction is an element of any felony
offense, it shall be proven to the trier of fact in open court.” (Cal. Const., art. I,
§ 28, subd. (f) (article I, section 28(f)).) Valentine concluded that the language
was directed at People v. Hall (1980) 28 Cal.3d 143, which held that when an
20
element of a charged offense requires proof that the defendant has a felony
conviction, and the defendant offers to stipulate to the prior conviction, it is error
to inform the jury either of the fact that the defendant has a prior felony conviction
or the nature of the felony. (Id. at pp. 153-154.)
Valentine held that article I, section 28(f) eliminated “the per se rule of
Hall” by requiring that the jury be advised that the defendant has suffered a prior
felony conviction if such felony conviction is an element of a current charge.
(Valentine, supra, 42 Cal.3d at p. 173.) But if the defendant offers to stipulate to a
prior felony conviction, article I, section 28(f) allows evidence of the nature of
that felony to be withheld from the jury. (Valentine, supra, at p. 173.) Thus, as
the trial court properly ruled in this case, Valentine allows one of two alternatives
when a defendant’s prior felony conviction is an element of a charged crime:
(1) The prosecution can prove the conviction in open court, and that proof can
include both the fact that the defendant has previously been convicted of a felony
offense as well as the nature of the felony involved; or (2) the defendant can
stipulate to having a felony conviction and thereby keep from the jury the nature
of the particular felony.
In
insisting
that
Valentine allows a third option, that of full bifurcation of
trial on the charge of being a felon in possession of a concealable firearm,
defendant quotes this language from Valentine: “[T]he court must balance the
legitimate benefits . . . of a consolidated trial against the likelihood that disclosure
of ex-felon status in a joint trial will affect the jury’s verdict on charges to which
that status is irrelevant.” (Valentine, supra, 42 Cal.3d at p. 180, fn. 3.) Contrary
to defendant’s assertion here, that language pertains not to a motion to bifurcate
trial on a charge that requires proof of a prior felony conviction (the motion
brought here), but to a motion to sever charges properly joined under section 954.
The relevant portion of Valentine’s footnote 3 states in full: “[D]efendant argues
21
that the trial court should at least have granted his motion to sever the firearm-
possession count from the robbery charge in order to prevent disclosure of
defendant’s criminal record from affecting the jury’s deliberations on the latter
crime. We need not resolve that contention, since we hold that disclosure of the
nature of defendant’s priors was reversible error as to all counts. [¶] . . . [W]e
decline to rule that such a procedure is mandatory in all cases. When the joinder
statute (§ 954) would otherwise permit consolidation of charges, a trial court
should, if requested, carefully exercise its discretion whether to try [the firearm
possession] count separately ‘in the interests of justice.’ ” (Valentine, supra, 42
Cal.3d at p. 180, fn. 3.) This is followed by the sentence on which defendant
relies, which states that a court considering such a severance request must balance
the various interests. (Ibid.) Because this court in Valentine expressly declined to
decide whether the trial court in that case abused its discretion in failing to grant
the defendant’s severance motion, its discussion of severance was dictum, as
defendant acknowledges. (See Palmer v. GTE California, Inc. (2003) 30 Cal.4th
1265, 1278 [“ ‘an opinion is not authority for a proposition not therein
considered’ ”]; People v. Scheid (1997) 16 Cal.4th 1, 17 [same].)
Moreover, defendant concedes he did not move to sever the firearm-
possession count from the three murder counts. He asserts, however, that although
the Valentine dictum discussed only severance explicitly “its rationale . . . would
apply to permitting full bifurcation (a mini-trial following the guilt trial on the
main charges).” Not so. In footnote 3 in Valentine this court expressly rejected
the idea that article I, “section 28(f) should be interpreted to require bifurcated
trials, with proof of [prior felony convictions] made only to the judge, who would
be the ‘trier of fact’ for this limited purpose.” (Valentine, supra, 42 Cal.3d at
p. 179, fn. 3.)
22
To summarize: Valentine, supra, 42 Cal.3d 170, allows the trial court only
two options when a prior conviction is a substantive element of a current charge:
Either the prosecution proves each element of the offense to the jury, or the
defendant stipulates to the conviction and the court “sanitizes” the prior by telling
the jury that the defendant has a prior felony conviction, without specifying the
nature of the felony committed. These are the same two options the trial court
here offered defendant. Accordingly, there was no error.
Defendant accuses his trial counsel of rendering ineffective assistance,
because, faced with those two options, counsel chose to have the court sanitize the
prior felony conviction. Defendant contends that counsel’s decision not to reveal
to the jury the nature of defendant’s prior felony conviction did him more harm
than good for this reason: The prior pertained to the relatively minor offense of
recklessly burning an inhabited dwelling. Because the jury had already heard
evidence that defendant had set fire to Duarte’s house, defendant argues that the
jury might have speculated that his prior felony conviction was for an offense
other than setting fire to Duarte’s house, possibly something far more serious, such
as murder. Preliminarily, we note that nothing in the record supports this
conjecture by defendant.
“To establish a violation of the constitutional right to effective assistance of
counsel, a defendant must show both that his counsel’s performance was deficient
when measured against the standard of a reasonably competent attorney and that
this deficient performance caused prejudice in the sense that it ‘so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.’ (Strickland v. Washington (1984) 466 U.S. 668,
686; see also People v. Wader (1993) 5 Cal.4th 610, 636.) If a defendant has
failed to show that the challenged actions of counsel were prejudicial, a reviewing
court may reject the claim on that ground without determining whether counsel’s
23
performance was deficient. (Strickland v. Washington, supra, 466 U.S. at
p. 697.)” (People v. Kipp (2001) 26 Cal.4th 1100, 1122-1123.)
In determining whether an attorney’s conduct so affected the reliability of
the trial as to undermine confidence that it “produced a just result” (Strickland v.
Washington, supra, 466 U.S. at p. 686), we consider whether “but for” counsel’s
purportedly deficient performance “there is a reasonable probability the result of
the proceeding would have been different.” (People v. Cash (2002) 28 Cal.4th
703, 734; see Strickland v. Washington, supra, at p. 694.) That standard cannot be
met here. Given defendant’s confessions to the three murders in this case, and the
physical and circumstantial evidence indicating that he was the killer in each
instance, no reasonable probability exists that the jury would have acquitted him
had it learned that his prior felony conviction was for reckless burning of an
occupied dwelling rather than some other and perhaps more serious crime.
D. Admissibility of Defendant’s Confessions
Before trial, defendant moved to suppress evidence of statements he had
made to law enforcement officers shortly after his April 25, 1986 arrest. After
hearing testimony, the trial court granted the motion with respect to statements
defendant made during interrogation on April 25, but denied it with respect to all
the statements defendant made after he initiated contact with law enforcement
officers on the evening of April 26. Thus, at the guilt phase of defendant’s capital
trial, the jury heard evidence of defendant’s confessions to the murders of Weber,
Duarte, and Abono, including evidence that he led detectives to the locations of
those killings.
Defendant
contends
that
the introduction of this evidence violated the self-
incrimination and due process clauses of the federal and state Constitutions. (U.S.
Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15.) Specifically, he claims
the police violated his rights under Miranda v. Arizona (1966) 384 U.S. 436
24
(Miranda), on April 25, 1986, and that as a result his confessions on April 26, 27,
and 28 must be deemed involuntary. He also asserts that his confessions were
involuntary because they were coerced. We disagree.
1. Factual background
Evidence at the suppression hearing established that on the morning of
April 25, 1986, Nevada County Sheriff’s deputies arrested defendant on a warrant
issued by Butte County. On the way to the Nevada County jail, defendant
volunteered that he “wanted to talk and clear things up,” and that he could tell the
deputies “about 20 murders.”
About an hour after defendant’s arrival at the jail, Sergeant Steven
McCulloch of the Colusa County Sheriff’s Department asked to talk with him
about the Weber killing. Also present was Detective Bill Elliott of the Butte
County Sheriff’s Department, who was investigating the disappearance of
defendant’s mother. Sergeant McCulloch advised defendant of his Miranda rights
(to remain silent and to have an attorney); defendant said he understood those
rights but added that if the detectives wanted to talk about murders “maybe I
should have an attorney.” McCulloch continued to question defendant, and then
Detective Elliott said he wanted to talk about the disappearance of defendant’s
mother. When defendant refused, Elliott appealed to him to reveal where he had
hidden his mother’s body so she could have a proper burial. Defendant became
emotional, was “on the verge of tears,” and did not respond, whereupon Elliott left
the room.
Shortly thereafter, Detective Michael Tye of the Richmond Police
Department arrived to question defendant about Duarte. Before entering the
interview room, he spoke with Detective Elliott, who mentioned that defendant
had said something about “possibly needing an attorney.” When Tye joined the
questioning, he ascertained that McCulloch had given defendant Miranda
25
advisements. Tye then spoke with defendant for about two hours. He mentioned
defendant’s brother Mike, a fellow Richmond police officer, stressing that
defendant’s involvement in murders was “having some adverse effects on Mike,”
and that defendant could help his brother by telling the truth about what had
happened to the victims.
After a two-hour dinner break, Detective Tye talked to defendant for about
another half-hour, at which point defendant said he “wanted to have an attorney.”
Tye gave defendant his card and told him to “think about it overnight,” adding that
before the homicide investigators could again talk to defendant with or without an
attorney being present, defendant would have to “get in contact” with them.
The next evening, April 26, Nevada County Sheriff’s Deputy Mary Fryback
was on duty in the jail when defendant called her to his cell and said he was ready
to talk to the investigators about “those murders that those guys were asking me
about yesterday.” Fryback told defendant that the investigators had all returned to
their home counties and thus were not available to interview him. Defendant
insisted that the investigators must have “left a message where to get them,” and
that Fryback should “go call them . . . now.” Fryback alerted her superior, Deputy
Sheriff Troy Arbaugh, who telephoned Sergeant McCulloch, Detectives Elliott,
and Tye, relaying to them defendant’s message. (Deputy Arbaugh would later
testify that the investigators had asked him to make sure that defendant “in fact did
want to speak with them about their cases” before they drove all the way back to
Nevada County.) Thereafter, without advising defendant of his Miranda rights,
Arbaugh inquired whether defendant was serious about talking to the investigators
about the murders. Defendant replied: “I want to admit to three murders, two in
Contra Costa County and one in Colusa County. I want to show where two of the
bodies were buried and I will show where my mother is buried. I didn’t kill her,
but she was killed because of me, [and] I dumped the guy in the bay that did kill
26
her.” Defendant added that he wanted “to get it all behind” him and did not want
“any attorneys” involved.
A short while later, defendant spoke for about 10 minutes by telephone
with Detective Tye of the Richmond Police Department. That conversation was
tape-recorded. With no questioning by Tye, defendant stated: “I just want to get
this shit over with. I’ll give you the locations of what you guys want.” When Tye
responded, “Okay,” defendant said: “[T]he main reason is you’ve convinced me
that it would be best for Mike [his police officer brother]. That’s the main reason
I’m doing this.” Defendant added: “I’ll tell you right now I killed Abono; I killed
Weber; I killed Duarte; but I didn’t kill my mother, but because of me, she died;
and the person that killed her, I killed, and I’ll tell you where he’s at.” Defendant
then promised that Detective Tye would not “drive up here and drive back –
frustrated again,” to which Tye responded: “I’ll be there first thing in the
morning.”
The next morning, April 27, Detective Tye arrived at the Nevada County
jail before 9:00 a.m. to question defendant. He was soon joined by Sergeant
McCulloch, Detective Elliott, and Tony Koester, an investigator for the Butte
County District Attorney’s Office. Tye readvised defendant of, and defendant
waived, his Miranda rights. Tye commented that the Miranda waiver would
“carry throughout the day,” and he suggested it would be “a long day” of
questioning. And Tye assured defendant that if at any time during that
questioning, defendant did not want “to talk anymore,” to just say so, and
questioning would stop. Tye noted that he was “involved in the Duarte case,”
adding that “one of [his] main reasons” for wanting to talk to defendant was to
convey how defendant’s brother Mike, a Richmond police officer, was doing. Tye
told defendant: “I thought that you should take that into consideration when you
decided whether or not you wanted to talk with us.”
27
Defendant replied that he still wanted to talk to the investigators.
Defendant then made this statement: “I killed John Abono. . . . I did it for
personal reasons. I killed Elizabeth Duarte for money. I was paid to kill her. I
killed Robert Weber for money. I was paid to kill him.”
Later that same day, April 27, the investigators drove with defendant to
Contra Costa County, and he directed them to the areas where he had killed and
buried Abono and Duarte. The next day, April 28, the investigators took
defendant to Colusa County, and he led them to the area where he had killed
Weber and left the body. At each location and in later interviews, defendant was
readvised of and waived his Miranda rights, and continued to provide details
about the three killings.
2. Pertinent legal standards
a. Miranda
The privilege against self-incrimination provided by the Fifth Amendment
of the federal Constitution and by article I, section 15 of the California
Constitution “is protected in ‘inherently coercive’ circumstances by the
requirement that a suspect not be subjected to custodial interrogation unless he or
she knowingly and intelligently has waived the right to remain silent, the presence
of an attorney, and, if indigent, to appointed counsel.” (People v. Cunningham
(2001) 25 Cal.4th 926, 992; see Dickerson v. United States (2000) 530 U.S. 428,
439-440; Miranda, supra, 384 U.S. 436.) “ ‘ “If a suspect indicates ‘in any
manner and at any stage of the process,’ prior to or during questioning, that he or
she wishes to consult with an attorney, the defendant may not be interrogated.” ’ ”
(People v. Storm (2002) 28 Cal.4th 1007, 1021.) Rather, “ ‘the interrogation must
cease until an attorney is present.’ ” (Edwards v. Arizona (1981) 451 U.S. 477,
482.) Moreover if, in violation of this rule, interrogation continues of an in-
custody suspect who has asked for but has not been provided with counsel, the
28
suspect’s responses are presumptively involuntary and therefore “are inadmissible
as substantive evidence at trial.” (People v. Cunningham, supra, at p. 993; see
McNeil v. Wisconsin (1991) 501 U.S. 171, 176-177.) Such exclusion is not
required, however, when the “suspect personally ‘initiates further communication,
exchanges, or conversations’ with the authorities.” (Cunningham, supra, at
p. 992, quoting Edwards v. Arizona, supra, at pp. 484-485.) The rule that
interrogation must cease because the suspect requested counsel does not apply if
the request is equivocal; “[r]ather, the suspect must unambiguously request
counsel.” (Davis v. United States (1994) 512 U.S. 452, 459.)
b. Voluntariness
The Fourteenth Amendment of the federal Constitution and article I,
section 7 of the California Constitution make “inadmissible any involuntary
statement obtained by a law enforcement officer from a criminal suspect by
coercion.” (People v. Neal (July 14, 2003, S106440) ___ Cal.4th ____, ____ [1];
see In re Jimenez (1978) 21 Cal.3d 595, 611.) “Voluntariness does not turn on any
one fact, no matter how apparently significant, but rather on the ‘totality of [the]
circumstances.’ ” (People v. Neal, supra, at p. ___ [15]; Withrow v. Williams
(1993) 507 U.S. 680, 688-690.)
Under federal standards, the prosecution “must demonstrate the
voluntariness of a confession by a preponderance of the evidence.” (People v.
Bradford (1997) 14 Cal.4th 1005, 1033, citing Colorado v. Connelly (1986) 479
U.S. 157, 168.) California courts use this standard for crimes committed after the
June 8, 1982, enactment of article I, section 28 of the California Constitution,
which as pertinent here prohibits the exclusion in criminal cases of relevant
evidence not required to be excluded under the federal Constitution. (People v.
Markham (1989) 49 Cal.3d 63, 71; see In re Lance W. (1985) 37 Cal.3d 873.) But
for crimes committed before article I, section 28’s June 8, 1982, enactment, the
29
prosecution “must prove voluntariness beyond a reasonable doubt.” (People v.
Thompson (1990) 50 Cal.3d 134, 166; In re Jimenez, supra, 21 Cal.3d at p. 608.)
Here, the December 1975 murder of Abono, and the January 1981 murder of
Duarte were both committed before the enactment of article I, section 28. Thus,
for those two crimes the prosecution had to prove that defendant’s statements
made after he asserted his right to counsel were voluntary beyond a reasonable
doubt. Only for the August 1985 killing of Weber did the lower preponderance of
the evidence standard for voluntariness apply.
In ruling on defendant’s suppression motion in this case, the trial court
applied the stricter beyond a reasonable doubt standard in determining that
defendant had voluntarily confessed to all three murders. We “ ‘independently
determine’ ” voluntariness while accepting “ ‘the trial court’s resolution of
disputed facts and inferences, and its evaluations of credibility, if supported by
substantial evidence.’ ” (People v. Storm, supra, 28 Cal.4th at pp. 1022-1023.)
Nonetheless, we agree with the trial court that the prosecution proved beyond a
reasonable doubt that defendant voluntarily confessed to all three murders. We
likewise conclude that the confessions were not the tainted by a violation of
defendant’s Miranda rights.
Defendant’s initial effort to invoke his right to counsel on April 26, 1986,
shortly after his arrival at the Nevada County jail was equivocal and therefore
inadequate to invoke the rule that all questioning must cease. (Davis v. United
States, supra, 512 U.S. at p. 459.) Later that evening, when defendant
unequivocally told Detective Tye he wanted an attorney, Tye stopped his
questioning and properly advised defendant that none of the homicide
investigators could question him unless defendant initiated contact with them.
(Edwards v. Arizona, supra, 451 U.S. at p. 482.) Some 24 hours later, defendant
summoned a jail guard and asked for the homicide investigators to come back so
30
he could admit to three murders. (Cunningham, supra, 25 Cal.4th at p. 992.)
Thereafter, he gave investigators a detailed account of the murders and led them to
the crime scenes. Defendant was over 30, obviously intelligent and well-
acquainted with the criminal justice system. The totality of circumstances show
his decision to summon the investigators was not the result of coercion. On these
facts, voluntariness is established beyond a reasonable doubt. (Cf. People v. Neal,
supra, ____ Cal.4th at pp. ___-___ [19-22].)
3. California law before June 8, 1982
Citing
People v. Burton (1971) 6 Cal.3d 375, 382 and People v. Randall
(1970) 1 Cal.3d 948, 955, defendant contends that under California law as it
existed before the June 8, 1982, enactment of article I, section 28 of the California
Constitution (prohibiting the exclusion in criminal cases of relevant evidence not
required to be excluded under the federal Constitution), an equivocal invocation of
the right to counsel was sufficient to invoke the California Constitution’s self-
incrimination clause. Because the trial court suppressed defendant’s statements to
the detectives on April 25, 1986 based on his equivocal assertion “maybe I should
have an attorney,” defendant argues here that his later confessions to the three
murders should also have been suppressed as “the tainted product of” the
detectives’ unlawful interrogation of him on April 25. (See People v. Sims (1993)
5 Cal.4th 405, 445 [applying a “fruit of the poisonous tree” analysis to a
“subsequent confession”]; but see People v. Bradford, supra, 14 Cal.4th at
p. 1041, fn. 3 [rejecting that analysis].) We disagree.
In addressing this argument, we assume that the trial court was correct in
suppressing defendant’s April 25 statements to the detectives as necessary to
protect his California Constitutional right against self-incrimination with respect to
the murders of Abono and Duarte, both of which predated the enactment of article
I, section 28. And we also assume that California law would require the
31
suppression of a later confession that was the tainted product of statements made
after an earlier equivocal assertion of the right to counsel. We conclude, however,
that defendant’s confessions to the three murders on April 26, 27, and 28 were not
the tainted product of his April 25 interrogation because an intervening
independent act by defendant broke any possible causal link between the April 25
interrogation and his later confessions. (See People v. Rich (1988) 45 Cal.3d
1036, 1081 [explaining that “ ‘an intervening independent act by defendant’ ” will
“purge[] any taint from the initial suppressed confession”]; People v. Sesslin
(1968) 68 Cal.2d 418, 428.)
As we have already discussed, during questioning by Detective Tye on the
evening of April 25, defendant unequivocally said he wanted an attorney. Tye
immediately stopped questioning and told defendant there could be no further
questioning by any of the homicide investigators unless defendant initiated contact
with them. The next evening, defendant did so. Defendant’s confessions to the
murders introduced against him at his capital trial were made after defendant’s
independent intervening act of summoning the homicide detectives.
4. Other contentions
Defendant further contends that his statements should have been suppressed
on the independent ground that they were obtained in violation of sections 821 and
825. At the time of defendant’s 1986 arrest, the former provided that when a
defendant is arrested on a warrant “in another county,” the arresting officer must
advise the defendant “of his right to be taken before a magistrate in that county.”
(§ 821.) The latter provided for the defendant to be taken “before the magistrate
without unnecessary delay, and, in any event, within two days after his arrest,
excluding Sundays and holidays.” (§ 825, as amended by Stats. 1961, ch. 2209,
§ 1, p. 4554.) Defendant observes that he was arrested in Nevada County on an
outstanding felony warrant issued by Butte County for the charge of felon in
32
possession of a concealable firearm, and that his arrest was on April 25, 1986, a
Friday. On the evening of Saturday, April 26, defendant first confessed to killing
Weber, Duarte, and Abono, and he was arraigned in Contra Costa County on
murder charges involving those killings on Wednesday April 30.
In the trial court, defendant complained of the four-day delay between his
April 26 murder confessions and his arraignment on those murders. At the hearing
on defendant’s suppression motion, Detective Tye attributed that delay to efforts
to coordinate the cases with the involved counties, which included Contra Costa
(where defendant killed Duarte and Abono) and Colusa (where defendant killed
Weber), as well as Butte County (where defendant’s mother’s body was found),
and the decision whether to charge defendant with a fourth count of murder
involving his mother.
In this court, defendant complains of the five-day delay between his April
25 arrest and his April 30 arraignment but concedes that he did not object to that
delay in the trial court. Accordingly, the point is not preserved for appeal. In any
event, it lacks merit. Even before the enactment of California Constitution article
I, section 28, which, as pertinent here, limited the suppression of relevant evidence
in criminal cases (see In re Lance W., supra, 37 Cal.3d 873), delay in arraignment
would justify suppressing a confession only upon a defendant’s showing that the
confession was the product of an illegal detention. (People v. Thompson (1980)
27 Cal.3d 303, 329-330.) Defendant made no such showing here, nor could he
because the murder confessions were not the product of any illegal delay in
arraigning him on the Butte County felon-in-possession charge. Arraignment on
that charge on Monday, April 28, would have satisfied section 825’s “two-day”
timeliness requirement. By that time, however, defendant had already given
detailed confessions to the three murders, and he had led authorities to the
locations of the Duarte and Abono killings. On these facts, defendant’s
33
confessions were not the product of the prosecution’s failure to timely arraign him
on the firearm-possession warrant on Monday, April 28.
With respect to defendant’s related claim that his detention violated the
search and seizure clauses of the federal and state Constitutions (U.S. Const., 4th
Amend.; Cal. Const., art. I, § 13; County of Riverside v. McLaughlin (1991) 500
U.S. 44), that issue was not raised in the trial court and thus is not properly before
us (People v. Earp (1999) 20 Cal.4th 826, 882). In any event, it is meritless. As
we have already explained, defendant’s detention after his arrest on an outstanding
warrant was not unlawful.
E. Withholding Access to a Reporter’s Unpublished Notes of an
Interview with Defendant
1. Trial court proceedings
Some two weeks after defendant’s arrest in this case, news reporter Erin
Hallissy interviewed him for about two hours in the Contra Costa County jail. On
May 10, 1986, Hallissy’s article entitled I Killed Many for Pay, Says Sapp
appeared on the front page of the Contra Costa Times newspaper. In January
1987, defendant served Hallissy with a subpoena demanding her presence at the
preliminary hearing then scheduled for February 9, 1987, and requiring her to
bring her “notes, memoranda, tapes of interviews, and statements taken at the
interview.” On Hallissy’s motion asserting the newsperson’s shield law (Evid.
Code, § 1070), the magistrate quashed the subpoena, ruling that Hallissy could
provide no relevant, admissible evidence for purposes of the preliminary hearing,
and that defendant was not entitled to use that hearing “for the purpose of
discovery.”
At the preliminary hearing, the magistrate held defendant to answer on the
charges in this case. Thereafter, defendant moved in the superior court to dismiss
34
the information. (§ 995.) Among the grounds asserted was the magistrate’s
quashing of the Hallissy subpoena. According to defendant, the magistrate’s order
violated defendant’s “substantial right[s]” by preventing him from calling a
witness at the preliminary hearing who could assist in the preparation of his
defense. Specifically, defendant asserted that because most of the evidence
against him “comes from [his] own mouth,” and he “says different things at
different times,” all of his statements to Hallissy regarding the charged crimes
would be relevant to preparing his defense.
The superior court, noting that the source of the information sought to be
protected was “the very person seeking disclosure,” ruled that the newsperson’s
shield law did not apply to Hallissy’s notes of her interview with defendant. On
that basis, without setting aside the information, it remanded the matter to the
magistrate to reconvene the preliminary hearing. At that hearing, Hallissy
appeared as a witness. Defense counsel sought to question her about unpublished
information obtained in her interview with defendant, but she refused to answer
the questions. Accordingly, the magistrate held Hallissy in contempt of court and
ordered her into custody. On Hallissy’s petition to this court, we stayed execution
of the contempt order and transferred the matter to the Court of Appeal, directing
it to issue an alternative writ.
2. Court of Appeal proceedings
The Court of Appeal, in a published decision, Hallissy v. Superior Court
(1988) 200 Cal.App.3d 1038 (Hallissy), issued a peremptory writ of mandate,
vacating the superior court’s remand order and the magistrate’s contempt order.
(Id. at p. 1046.) The court concluded that the remand to the magistrate was
unauthorized by section 995, subdivision (b)(1), which allows a remand without
setting aside an information only for the correction of “ ‘minor errors of omission,
ambiguity, or technical defect[s].’ ” (Hallissy, supra, at pp. 1042-1043, italics in
35
Hallissy omitted.) The Court of Appeal nonetheless, as “guidance [for] the trial
court,” addressed issues pertaining to the newsperson’s shield law and the
magistrate’s order. (Id. at p. 1044.)
Hallissy described the newsperson’s shield law as generally conferring
immunity from contempt “when a nonparty witness refuses to disclose . . . covered
information.” (Hallissy, supra, 200 Cal.App.3d at p. 1045.) Notwithstanding that
immunity, the court added, a criminal defendant may be entitled to discover
information otherwise subject to the shield law. (Ibid.) Quoting Hammarley v.
Superior Court (1979) 89 Cal.App.3d 388, the Hallissy court noted that “ ‘the
burden is on the party seeking to avoid the [newsperson’s] privilege competently
to demonstrate not only that the evidence sought is relevant and necessary to his
case, but that it is not available from a source less intrusive upon the privilege.’ ”
(Hallissy, supra, at pp. 1045-1046.) That burden requires a defendant to show “ ‘a
reasonable possibility that the evidence sought might result in his exoneration.’ ”
(Id. at p. 1046)
The Court of Appeal in Hallissy concluded that defendant had not satisfied
that burden. It stated: “Sapp comes close to meeting only one of the several
concomitants of the presentation described in Hammarley. Arguably he
approaches an adequate showing of relevancy: he wishes to attack his own
credibility by using inconsistent statements that he made to the reporter during the
interview. But he has made no attempt to demonstrate that this particular item of
evidence, if it exists, is necessary to his case, the second prong of Hammarley. In
fact he concedes there are other individuals to whom he confessed and through
whom he could prove the falsity of his confessions. This concession destroys any
possibility that he can meet the third and fourth Hammarley hurdles: that the
information he seeks is not available from a source less intrusive upon the
privilege and that there is a reasonable possibility such evidence might result in his
36
exoneration. Not only has he not met that burden he has proved the opposite:
there are numerous nonprivileged sources of apparently fungible inconsistent
statements by Sapp.” (Hallissy, supra, 200 Cal.App.3d at p. 1046.)
3. Our decision disapproving Hallissy
In May 1990, before trial began in this case, this court decided Delaney v.
Superior Court (1990) 50 Cal.3d 785 (Delaney), and addressed several issues
pertaining to the newsperson’s shield law. Notably, Delaney adopted a different
and less onerous test for a criminal defendant’s discovery of information covered
by the shield law than the one set out in Hammarley, supra, 89 Cal.App.3d 388,
and reiterated by the Court of Appeal in Hallissy, supra, 200 Cal.App.3d at page
1046 when discussing the motion in defendant’s case. Delaney states: “First, the
burden is on the criminal defendant to make the required showing. [Citation.]
Second, the defendant’s showing need not be detailed or specific, but it must rest
on more than mere speculation. Third, the defendant need not show a reasonable
possibility the information will lead to his exoneration. He need show only a
reasonable possibility the information will materially assist his defense.”
(Delaney, supra, 50 Cal.3d at p. 809, 2d italics omitted.)
In
addition,
Delaney rejected “a universal and inflexible alternative-source
requirement” in criminal cases, and specifically disapproved contrary suggestions
in Hammarley, supra, 89 Cal.App.3d at page 399, and Hallissy, supra, 200
Cal.App.3d at page 1046, on that point. (Delaney, supra, 50 Cal.3d at p. 812; id.
at p. 813 & fn. 29.)
Finally, in discussing the interests to be protected by the shield law,
Delaney observed that some circumstances “may, as a practical matter, render
moot the need to avoid disclosure,” and gave as an example a situation in which
“the criminal defendant seeking disclosure is himself the source of the
information, [when] it cannot be seriously argued the source (the defendant) will
37
feel that his confidence has been breached.” (Delaney, supra, 50 Cal.3d at p. 810,
italics added.) In a footnote, Delaney made a specific reference to this case,
stating: “Such was the situation in Hallissy v. Superior Court, supra, 200
Cal.App.3d 1038. A reporter published a story based on an interview with a
criminal defendant that led to additional charges being filed against him. He
sought to question the reporter to show the published statements were inconsistent
with other statements the defendant had made to the reporter. The trial court
correctly noted that ‘The source of the information is the very person who is
seeking full disclosure.’ (Id. at p. 1042.) The Court of Appeal, however, paid no
heed to this circumstance in reversing the order of contempt against the reporter.
As explained above, such circumstance is significant. We disapprove Hallissy to
the extent it did not consider the fact that the party seeking disclosure was the
source of the unpublished information.” (Delaney, supra, at pp. 810-811, fn. 27.)
Thus, this court’s decision in Delaney, supra, 50 Cal.3d 785, rejected the
Court of Appeal’s analysis in Hallissy, supra, 200 Cal.App.3d 1038, for three key
reasons: First, Hallissy concluded that defendant had to but failed to show the
reporter’s unpublished notes would lead to his exoneration (id. at p. 1046),
whereas Delaney held a defendant need only show “a reasonable possibility the
information will materially assist his defense” (Delaney, at p. 809, italics omitted).
Second, Hallissy determined that defendant failed to show “that the information he
seeks is not available from a source less intrusive upon the privilege” (Hallissy at
p. 1046), but Delaney held there was no universal and inflexible alternative source
requirement (Delaney at p. 812). Third, Hallissy ignored the fact that defendant
was the source of the information he sought, whereas Delaney held that this
circumstance “may, as a practical matter, render moot the need to avoid
disclosure” (Delaney at p. 810).
38
4. Defendant’s contentions
Defendant asserts here that because of the Court of Appeal’s decision in
Hallissy, supra, 200 Cal.App.3d 1038, which Delaney, supra, 50 Cal.3d 785,
disapproved on three points, he was denied access to the unpublished statements
he had made to Contra Costa Times reporter Erin Hallissy. He further asserts that
those statements likely would have contradicted statements he made to the
investigating officers, and thus the unpublished statements, if introduced at his
capital trial, would have aided his defense that he was a chronic false confessor.
Defendant acknowledges that the law of the case doctrine generally
requires that an interlocutory appellate decision “must be adhered to throughout”
the future progress of the case it decided (People v. Stanley (1995) 10 Cal.4th 764,
786), and that this rule, if applied here, would mean that the Hallissy court’s
interpretation of the newsperson’s shield law would be binding on defendant’s
automatic appeal. He points out, however, that under an exception to the law of
the case doctrine, an interlocutory decision in a case is not binding during later
proceedings in that case if before those proceedings a decision in another case has
“altered or clarified” controlling rules of law. (People v. Stanley, supra, at p. 787.)
This, he asserts, is the situation here. Before defendant’s capital trial, Delaney,
supra, 50 Cal.3d 785, “altered or clarified” controlling rules of law with respect to
the newsperson’s shield law.
Even assuming that defendant is correct in his assertion that the situation
here falls within an exception to the law of the case doctrine, his claim must fail,
as we explain below.
We filed our decision in Delaney, supra, 50 Cal.3d 785, in May 1990.
Defendant’s capital trial did not begin until January 1991. Yet in the intervening
seven months after Delaney altered or clarified the rules governing a criminal
defendant’s access to unpublished reporter’s notes, defendant never sought to
39
subpoena or otherwise obtain the unpublished notes of his 1986 interview with
Erin Hallissy. As defendant concedes, after July 6, 1988, when the Court of
Appeal’s writ of mandate issued vacating the magistrate’s contempt order, “[n]o
further reference to the Hallissy matter appears in the record.” Accordingly,
defendant cannot now complain that the trial court refused to apply the Delaney
standard in his case.
Moreover, even if we assume that defendant was erroneously denied access
to his own statements made to reporter Hallissy, and that those statements
substantially contradicted his confessions to law enforcement officers regarding
the murders of victims Weber, Duarte, and Abono, defendant would not be
entitled to relief. Because of the other strong evidence linking defendant to the
killings of Weber, Duarte, and Abono, we are persuaded that the jury’s
consideration of defendant’s self-serving denials to a newspaper reporter would
not have altered the outcome of any of the murder charges or of the multiple-
murder special-circumstance allegation. (See People v. Cooper (1991) 53 Cal.3d
771, 820.) With respect to the financial gain special circumstances, which
substantially relied on defendant’s admissions to the investigating officers,
defendant arguably could establish prejudice if the reporter’s unpublished notes of
defendant’s statements to the reporter showed that he had denied killing Weber
and Duarte for money. In that situation the jury, faced with such contradictory
statements by defendant about the role financial gain played in motivating his
killings of Weber and Duarte, might have rejected one or both of the financial-gain
special-circumstance allegations. But the record here is devoid of any suggestion
that the reporter’s unpublished notes included any denial by defendant that he
committed these two murders for financial gain. On these facts, defendant has not
shown that depriving him of access to Hallissy’s unpublished interview notes
40
prejudiced his defense to the two financial-gain special-circumstance allegations.
(Ibid.)
IV. GUILT PHASE ISSUES
A. Introduction of Certain Statements by Defendant
At trial, the prosecution introduced evidence of defendant’s confessions to
law enforcement that he had murdered Weber, Duarte, and Abono. The
prosecution also played for the jury recordings of the interrogation sessions during
which defendant confessed, and it provided the jury with transcripts of the
recordings. Both the tapes and the transcripts were “redacted” versions of the
interrogation sessions, as the trial court excluded evidence of some parts of those
sessions. Defendant complains here of 11 statements that were not ordered
omitted and consequently were included in the materials given to the jury. He
seeks reversal on the ground that the introduction of those 11 statements violated
the Fifth, Eighth, and Fourteenth Amendments to the federal Constitution,
asserting the statements indicated to the jury that defendant had committed other
uncharged murders. We reject the contentions.
Of the 11 statements challenged here, defendant concedes that he objected
only to four, and that his objections referred not to the federal Constitution but
only to Evidence Code section 352, a state law authorizing a trial court to exclude
evidence when “its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.” Thus, with respect to all 11 statements defendant may not now claim denial
of federal constitutional rights, and with regard to the seven not objected to on any
ground he has not preserved any claim at all. (People v. Earp, supra, 20 Cal.4th at
p. 882.) In any event, we are not persuaded that the trial court’s admission of the
11 statements unduly prejudiced defendant.
41
In one of the four statements to which defendant objected on the ground of
being more prejudicial than probative (Evid. Code, § 352), defendant gave this
response to a question why he had not killed Abono at defendant’s house:
“Because I don’t like transporting bodies. I’d rather have them right . . . on the
spot.” This comment was probative of defendant’s mental state when he killed
Abono, because it supported the prosecution’s theory that he had planned the
killing and thus acted with the requisite premeditation and deliberation for first
degree murder. It did not implicate defendant in killings other than those involved
here, all three of which took place in the remote areas where defendant left or
buried the bodies.
In the second instance, defendant gave this response to a question why he
shot Abono with a .22-caliber pistol: “I’ll kill people with a variety of weapons. I
don’t have any specific choice.” This statement too was probative of defendant’s
guilt of killing the three victims here, each of whom was shot with a different
caliber pistol (Abono: .22-caliber; Duarte: .38-caliber; Weber: 9-mm.). It
negated any implication from the use of different caliber firearms that defendant
was not the killer in each case. And because the charged crimes themselves
involved “a variety of weapons,” the statement did not suggest to the jury that
defendant had committed murders in addition to those charged.
In the third instance, defendant gave this answer to a question about
remorse for killing Abono: “Every time I’ve ever done any of these crimes, I
wished I hadn’t.” Defendant’s generic reference to “any of these crimes” did not
suggest that he had committed murders other than those charged here.
In the fourth instance, when defendant was questioned about having
nightmares after killing Abono, defendant answered: “I dream about everybody
I’ve ever killed, and I see them walking on the streets sometimes . . . when I’m
awake . . . . I’ve seen John [Abono] a few times. I’ve seen other people that I’ve
42
murdered look me square in the face in a crowd of people . . . . I’ve seen people
look at me, like Elizabeth Duarte and Robert Weber in the last week – look me
square in the eye – it gets kinda scary, and I usually just keep on going, but I have
seen – I’ve seen people I’ve murdered. I’ve seen people that look like them. . . .
[T]hey’re smiling at me. . . . All of them. Always.” This statement too, although
referring to “other people I’ve murdered,” mentions by name just the three victims
here: Abono, Duarte, and Weber. In context, the jury would not have understood
the statement as an admission of defendant’s guilt to uncharged murders.
With respect to the seven statements not objected to, we are satisfied that
the outcome in this case would not have been different had those statements not
been introduced at trial as part of defendant’s confessions to the charged crimes.
We likewise reject defendant’s assertion of ineffective assistance of trial counsel
in failing to object to the statements. Their admission could not have affected the
reliability of the trial process. (Strickland v. Washington, supra, 466 U.S. at
pp. 686, 690; People v. Earp, supra, 20 Cal.4th at pp. 870, 874.) Some of the
statements showed defendant to be remorseful or supported his claim to be a
chronic false confessor. At least as to these, because the evidence would assist the
defense, counsel’s choice to forgo any objection may have been tactical.
B. Providing the Jury with Redacted Transcripts of the Interrogations
Defendant also claims error in the admission of the redacted transcripts that
were provided to the jury when the prosecutor played the recordings of the
interrogation sessions during which defendant confessed to the three killings.
Defendant asserts that “gaping blanks in the text” would have alerted jurors to his
commission of uncharged crimes. Defendant contends the prosecutor exacerbated
the problem when, in response to the trial court’s question how he wanted to
proceed, stated: “It’s not up to me, Judge, we have already been through this and
we [were] prepared to proceed. What goes on now is up to the Court and
43
counsel.” Defendant contends the jurors would have understood this comment to
mean that “there was something on the tape the defense did not wish the jury to
hear.” Defendant cites the United States Supreme Court’s decision in Gray v.
Maryland (1998) 523 U.S. 185 (Gray) to draw an analogy between the redacted
transcripts of the recordings of defendant’s interrogation sessions and Gray’s
treatment of redactions in applying the Bruton rule (Bruton v. United States (1968)
391 U.S. 123). The Bruton rule allows admission in a joint trial of one
defendant’s confession naming and incriminating another only if all direct and
indirect identifications of the nondeclarant defendant are effectively deleted.
(Ibid.; see also People v. Aranda (1965) 63 Cal.2d 518; People v. Johnson (1989)
47 Cal.3d 1194, 1230.)
We note at the outset that defendant objected to providing the jury with a
transcript of the recordings. But after the trial court overruled that objection,
defendant did not object to the blank spaces in the transcript text. Thus, he has not
preserved this issue for review. (People v. Earp, supra, 20 Cal.4th at p. 882.)
Moreover, the analogy to Gray, supra, 523 U.S. 185, is not well taken.
In
Gray, the high court rejected, as an insufficient deletion of a jointly tried
codefendant’s identity, the use of a blank space or the word “deleted” in the
confessing defendant’s statement that “Me, [blank], and a few other guys [attacked
the victim].” (Gray, supra, 523 U.S. at p. 192.) The deletion, in context, was
plainly a name of a person involved with the confessing defendant in the charged
crime; jurors in all likelihood would have filled in the blank space with the name
of the nonconfessing codefendant present in court. (Ibid.) Here, the blank
portions of the transcript were far more lengthy, extending for several sentences or
half a page. The content of the deleted material was not readily discernable.
Assuming that the prosecutor’s brief comment would have suggested to the
jury that defendant was responsible for the deletions, defendant suffered no
44
prejudice. It is not reasonably probable that the jury would have returned verdicts
more favorable to defendant had the prosecutor not made the comment.
C. Cross-examination of Deputy District Attorney Lawrence Barnes
To show that defendant had a history of confessing to murders he had not
committed, the defense called Contra Costa County Deputy District Attorney
Lawrence Barnes. He testified that in 1986 and 1987, he had prosecuted one Larry
Leroy Brownson for the October 1984 murder of Roger Gardner. Defendant (who
in 1986 and 1987 was in custody awaiting trial in this case) came forward at the
time of Brownson’s bail hearing and confessed to killing Gardner. At Brownson’s
trial, defendant testified for the defense consistent with that confession. Barnes
had not believed defendant’s confession and, testifying in this case as an expert
witness, gave his reasons: Defendant’s description of the Gardner killing differed
in key respects from the physical evidence, and defendant had much to gain from
“taking the rap” for Brownson who, as a Hell’s Angel and high-level member of
the Aryan Brotherhood prison gang, could make life easier for defendant in the
California prison system.
When the prosecutor cross-examined Barnes, he asked, among other things,
about Barnes’s cross-examination of defendant in the Brownson case. With no
objection by defense counsel, this exchange took place:
Prosecutor: “And then you asked [defendant] if since October of 1984 [the
time of the Gardner killing] had he committed any other crimes?”
Barnes: “Did I ask that question?”
Prosecutor: “And he said numerous[?]”
Barnes: “Correct.”
Prosecutor: “And you asked him if he had committed any other
homicides[?]”
Barnes: “I did.”
45
Prosecutor: “His response?”
Barnes: “He responded that he had.”
Defendant now contends that “[t]here was no justification . . . for allowing
the jury to hear that [defendant] claimed to have committed numerous crimes after
October 1984, including one or more homicides.” He asserts that in eliciting that
information, which defendant characterizes as “propensity evidence,” the
prosecutor committed misconduct rendering defendant’s capital trial
fundamentally unfair and the death verdict unreliable. He further accuses his trial
counsel of incompetence for not objecting to the prosecutor’s questions. We reject
these contentions.
A claim of prosecutorial misconduct is generally reviewable on appeal only
if the defense makes a timely objection at trial and asks the trial court to admonish
the jury to disregard the prosecutor’s question. (People v. Earp, supra, 20 Cal.4th
at p. 858; People v. Price (1991) 1 Cal.4th 324, 447.) “ ‘[O]therwise, the point is
reviewable only if an admonition would not have cured the harm.’ ” (People v.
Earp, supra, at p. 858.) Here, any harm could have been cured by an admonition;
thus the claim in question is not preserved for appeal.
In any event, defendant suffered no possible prejudice from this testimony.
The jury already knew from the prosecution’s case that defendant had confessed to
one homicide committed after October 1984, namely the August 1985 killing of
Weber, and that he had committed “other crimes” after 1984, namely the Weber
killing and possession by a felon of a concealable firearm. Moreover, the defense
in this case was that defendant habitually confessed to crimes he had not
committed. The evidence the prosecutor elicited was not inconsistent with that
defense. For this reason, we also reject defendant’s contention that his trial
counsel was ineffective for not objecting to the prosecutor’s line of questioning.
46
D. Duarte’s Declaration in Support of Restraining Order
In connection with testimony that murder victim Duarte had obtained a
restraining order against defendant, the prosecutor moved into evidence the
restraining order and supporting court documents. Included was Duarte’s
declaration of July 17, 1980 (some six months before her murder) detailing facts to
justify the restraining order. These included assertions that defendant had
“pounded [Duarte’s] head against the wall and threw [her] to the ground,”
“destroyed [Duarte’s] phones to prevent [her] from calling the police,” and
repeatedly threatened to kill Duarte “if [she] did not let him continue to reside in
[her] home.” Duarte’s declaration further stated that she had changed the locks on
her doors but defendant “managed to break in through windows,” that defendant
carried “a gun on his person at all times,” that she believed he had “a history of
mental illness,” and that she feared for her own life and that of her then four-year-
old son.
Citing
People v. Noguera (1992) 4 Cal.4th 599, 621, defendant asserts that
Duarte’s statements were inadmissible hearsay, and not relevant to any issue in the
case (see People v. Hernandez (2003) 30 Cal.4th 835, 872-873), and that
consequently trial counsel rendered ineffective assistance in not objecting to
Duarte’s declaration. The Attorney General observes that “the decision whether to
object is inherently tactical,” and thus “will seldom establish incompetence.”
(People. v. Freeman (1994) 8 Cal.4th 450, 490-491.) He asserts that counsel had a
tactical reason for failing to object to the declaration: It supported the defense
efforts to portray defendant “not [as] a cold-blooded killer, [but as] a mentally ill
person who murdered [Duarte] out of a fit of rage, after being rejected by her.”
Whether or not counsel had a sound tactical reason for objecting to
admission of Duarte’s declaration, defendant’s claim of ineffective assistance of
counsel must fail. Given the overwhelming evidence that defendant killed his
47
former girlfriend Duarte, he suffered no possible prejudice from the admission into
evidence of Duarte’s declaration asserting that he was violent and had threatened
to kill her. (See Strickland v. Washington, supra, 466 U.S. at p. 697.)
E. Threat to Laura Norris
After Duarte broke up with defendant, she started dating James Luddon. In
January 1981, defendant paid Luddon $800 to lure Duarte to Luddon’s house so
defendant could kill her. At that time, Laura Norris and her husband, Tony
Goularte, were living with Luddon. Norris testified for the prosecution that
defendant saw Luddon in January 1981, both before and after Duarte’s
disappearance; that defendant made incriminating comments; and that on January
25, 1981 (the day after defendant’s violent assault on Duarte at Luddon’s house),
Norris cleaned up blood splatters from the bathroom and hallway.
On cross-examination by the defense Norris said she did not tell the police
“about this matter” until they contacted her in 1985. On redirect examination by
the prosecution, Norris explained that she had not come forward earlier “because I
was afraid for my own life.” Recross-examination by defense counsel established
that defendant had never threatened Norris. The prosecution then sought to
question Norris about a threat Luddon and Goularte made to her when she asked
them what would happen if she gave the police information linking defendant to
Duarte’s disappearance. Defense counsel objected that Norris’s answer would be
hearsay and more prejudicial than probative. The trial court overruled the
objection. Norris responded that Luddon and Goularte had told her that if she
went to the police she “would end up just like Liz [Duarte].”
Defendant now contends that Norris’s testimony about the threat rendered
the trial fundamentally unfair in violation of his due process rights under the
federal Constitution. This claim was not raised in the trial court and thus is not
properly before us. (People v. Earp, supra, 20 Cal.4th at p. 882.) Moreover, the
48
claim lacks merit. Norris’s testimony that Luddon and Goularte had told her that
if she went to the police she would end up “just like Liz” was properly admitted
for the nonhearsay purpose of showing why Norris had not come forward sooner.
(Evid. Code, § 780; People v. Olguin (1994) 31 Cal.App.4th 1355, 1368.) “It is
not necessary to show threats against the witness were made by the defendant
personally, or the witness’s fear of retaliation is directly linked to the defendant for
the evidence to be admissible.” (People v. Olguin, supra, at p. 1368.)
In any event, under any standard, defendant suffered no possible prejudice,
for the evidence that he killed Duarte was overwhelming.
F. No Instruction on CALJIC No. 2.50
Defendant
contends
the trial court should have on its own initiative
instructed the jury under CALJIC No. 2.50, which provides: “Evidence has been
introduced for the purpose of showing that the defendant committed crimes other
than that for which he is on trial. Such evidence, if believed . . . may not be
considered by you to prove that defendant is a person of bad character or that he
has a disposition to commit crimes.” In the alternative, defendant argues that
defense counsel was ineffective in not requesting the instruction. As we did in
People v. Hawkins (1995) 10 Cal.4th 920, 942, we reject both contentions. In that
case, the other crimes evidence was cross-admissible. (Ibid.) Here, we have
concluded that evidence of the two other murders was cross-admissible, at least to
rebut the defense. (Pt. III. B, ante.) No instruction on propensity evidence was
therefore warranted.
G. Weber’s Statement That He Had $17,000
Defendant also faults counsel for failing to object to certain testimony by
Weber’s girlfriend, Linda Brown, as hearsay. Brown testified that before Weber
left to meet defendant for a “big drug deal,” he told her he was taking $17,000
with him. We note that the prosecution, through the testimony of Brown and
49
Weber’s brother Michael, presented evidence independent of Weber’s statements
that when Weber left to meet defendant for the drug deal he took with him a
substantial sum of money. Defendant contends he was nonetheless prejudiced by
the hearsay testimony because it allowed the prosecutor to argue in support of the
financial gain special circumstance involving Weber that the $27,000 in cash that
defendant had when he was arrested in April 1986, exactly equaled Weber’s
missing $17,000 plus the $10,000 defendant said he was paid to kill Weber. We
reject the claim because we cannot tell on this record whether the failure to object
lacked a valid tactical basis. (See People. v. Freeman, supra, 8 Cal.4th at pp. 490-
491.)
V. SPECIAL CIRCUMSTANCES
A. Evidence That Duarte Killing Was Carried Out for Financial Gain
With respect to the Duarte killing, the jury found true the special
circumstance that the murder was “carried out for financial gain.” (§ 190.2, subd.
(a)(1).) Defendant contends that finding was not supported by substantial
evidence. We disagree.
“To determine the sufficiency of the evidence to support a special
circumstance finding, we apply the same test used to determine the sufficiency of
the evidence to support a conviction of a criminal offense. We ‘review the whole
record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence – that is, evidence which is reasonable, credible, and
of solid value – such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ ” (People v. Mayfield, supra, 14 Cal.4th at pp. 790-
791.)
In
People v. Noguera, supra, 4 Cal.4th 599, we explained that financial
gain need not have been a “ ‘dominant,’ ‘substantial,’ or ‘significant’ motive for
the murder.” (Id. at p. 635.) “ ‘[T]he relevant inquiry is whether the defendant
50
committed the murder in the expectation that he would thereby obtain the desired
financial gain.’ ” (Id. at p. 636.) Proof that the defendant derived pecuniary
benefit from the murder is unnecessary. (Ibid.) “Defendant either had an
expectation of financial benefit at the time of the killing or he did not. It was for
the jury to make that determination, applying a common sense, nontechnical
understanding of ‘financial gain.’ ” (Ibid.)
Here, the evidence that defendant killed Duarte for financial gain was
included in his confession to police in April 1986, after his arrest on a warrant for
being a felon in possession of a concealable firearm. Defendant told the police
about an incident several months before the killing in which someone was
shooting at him. He concluded Duarte had arranged the incident, so he “made
[his] mind up then that [he] was going to kill her.” Although his reasons for
killing her were strictly “personal,” someone, whom defendant refused to name,
had offered him $20,000 to kill Duarte, and that, he said, “was like an added
bonus.” Defendant never received the money.
This evidence, viewed in the light most favorable to the judgment, if
accepted by the jury, was sufficient to support its finding that the Duarte murder
was carried out for financial gain.
According to defendant, our decision in People v. Noguera, supra, 4
Cal.4th 599, misconstrued the financial gain special circumstance as intended “to
apply even where financial gain was not a motivating cause of the killing.”
Defendant criticizes this language in Noguera: “In People v. Howard [(1988) 44
Cal.3d 375], we rejected the claim that the unadorned language of the financial-
gain special-circumstance instruction was flawed because it failed to convey to the
jury any requirement that financial gain be the ‘direct’ or ‘motivating cause’ of the
murder. Instead, we concluded that the drafters intended no such limitation.”
Defendant asserts this was a misreading of Howard, which, he states merely
51
“focus[ed] on three instructions proffered by the defense and [found] them
flawed.” We agree with defendant that the financial gain special circumstance
requires proof, as we said in Howard, that the “purpose” of the murder was to
obtain financial gain, “whether or not achievable.” (People v. Howard, supra, at
p. 410, fn. 10.) This, however, is of no assistance to defendant because the
evidence from his own confession was that financial gain was one purpose (albeit
not the exclusive purpose) for his killing Duarte. Accordingly, we reject his
related contention that the jury’s “true” finding on the financial gain special
circumstance was constitutionally deficient because no juror could have found a
motivating factor to be defendant’s financial gain.
B. Unanimity Instruction
The jury returned a true finding on the special circumstance allegation that
the Weber murder was carried out for financial gain. Defendant asserts that this
finding must be set aside because the trial court failed to instruct on its own
initiative that the jury must unanimously agree on a single act as supporting the
financial gain special circumstance. (Cal. Const., art. I, §§ 7, subd. (a) & 16;
People v. Beardslee (1991) 53 Cal.3d 68, 93 [“ ‘A unanimity instruction is
required . . . if the jurors could . . . disagree which act a defendant committed and
yet convict him of the crime charged’ ” (italics added)]; People v. Mickle (1991)
54 Cal.3d 140, 178 & fn. 21 [applying unanimity requirement to special
circumstance finding].) Defendant further contends that the failure to so instruct
violated the federal Constitution’s Fifth and Fourteenth Amendments by
lightening the prosecution’s burden of proving guilt of the special circumstance
beyond a reasonable doubt. (See Schad v. Arizona (1991) 501 U.S. 624, 632 (plur.
opn. of Souter, J.); id. at p. 652 (dis. opn. of White, J.).)
52
According to defendant, jurors could have relied on two different theories
in finding that he killed Weber for financial gain: his receipt of $10,000 for killing
Weber, or his theft from Weber of $17,000. We disagree.
Relevant here is People v. Mickle, supra, 54 Cal.3d 140, in which the jury,
although instructed that it must unanimously agree on a particular lewd act as
supporting the special circumstance finding (§ 190.2, subd. (a)(17)(v)) had
ambiguously described the act on the verdict form. We concluded that the jury’s
description of the lewd act as involving “ ‘the victim[’]s nudity and [the] obvious
use of force’ ” (People v. Mickle, supra, at p. 177, italics omitted) meant it had
“obviously agreed that a lewd and lascivious act had occurred under one of two
viable, closely connected theories, i.e., that defendant either forcibly undressed
[the victim] or forcibly compelled her to undress herself.” (Id. at p. 178.)
Here, the prosecutor in argument to the jury mentioned the $10,000
payment to defendant and defendant’s theft of Weber’s $17,000 to make the point
that defendant, when arrested some eight months after killing Weber, had on him
$27,439 in cash: “Think about it. He got $10,000 for killing Weber. Mr. Weber
had $17,000. Ask yourself. He didn’t spend any money during the interim[?]
Probably not true. He did. He probably had some more money. [Referring to
defendant]. But the coincidence of the $27,000 is just too much.” “This time
[defendant] gets enriched $17,000 in addition to the ten grand that he was paid up-
front to kill Weber.” The prosecutor also mentioned defendant’s theft of Weber’s
$17,000 to make the points that defendant was lying when he confessed to police
and said that Weber had no money, and that Weber’s $17,000 would technically
belong to the person or persons who had hired defendant to kill Weber, giving
defendant an added incentive to falsely confess to the Brownson killing.
Furthermore, the prosecutor’s sole reference to the financial-gain special
53
circumstance connected it to defendant being paid for the killing: “[T]he fact that
he was paid makes him a professional killer. [¶] Murder for financial gain.”
The prosecutor never suggested the jury could find the financial gain
special circumstance to be true based on either the $10,000 payment for killing
Weber or defendant’s theft of Weber’s $17,000. Rather, the prosecutor’s
argument wove the two incidents together. Accordingly, we are satisfied that no
juror would have believed that defendant took Weber’s $17,000 but would have
disbelieved that he was paid $10,000 for the Weber killing.
C. Applicability of Corpus Delicti Rule to the Financial Gain Special
Circumstance
“In every criminal trial, the prosecution must prove the corpus delicti, or
the body of the crime itself – i.e., the fact of injury, loss, or harm, and the
existence of a criminal agency as its cause. In California, it has traditionally been
held, the prosecution cannot satisfy this burden by relying exclusively upon the
extrajudicial statements, confessions, or admissions of the defendant.” (People v.
Alvarez (2002) 27 Cal.4th 1161, 1168-1169, italics omitted.) In People v. Cantrell
(1973) 8 Cal.3d 672, 680-681, we held that the corpus delicti rule requiring proof
independent of the defendant’s statements did not apply to proof of a felony
underlying a charge of felony murder. But in People v. Mattson (1984) 37 Cal.3d
85, 94, we held that statutory language stating that a felony-murder special
circumstance must be “proved pursuant to the general law” (former § 190.4, subd.
(a)) made the corpus delicti rule requiring proof independent of the defendant’s
54
statements applicable to the felony offense underlying a felony-murder special-
circumstance allegation.2
With regard to special circumstance allegations not based on felony murder,
such as the special circumstances of lying in wait (§ 190.2, subd. (a)(15)) and
financial gain (§ 190.2, subd. (a)(1)), our 1988 decision in People v. Howard,
supra, 44 Cal.3d 375, held that the Mattson rule does not apply because proof of
the special circumstance “does not require proof of the commission of any crime
in addition to the murder itself.” (People v. Howard, supra, at p. 414.)
In this case the trial court, over defense objection, instructed the jury in
accord with our 1988 decision in People v. Howard, supra, 44 Cal.3d 375, that
“[t]he special circumstances of murder for financial gain may be established by the
defendant’s statement alone.” Defendant contends this was federal constitutional
error. Specifically, he asserts that applying the Howard rule to his case for the
1981 murder of Duarte and the 1985 murder of Weber violates the federal
Constitution’s ex post facto clause (U.S. Const., art. I, § 9, cl. 3) by lessening “the
amount or measure of proof” necessary to prove the crime when it was committed.
(Hopt v. Utah (1884) 110 U.S. 574, 589-590.) He also claims our decision in
Howard made an unforeseeable change in the law with respect to proof of special
circumstances other than those based on felony murder, and to apply that rule in
the trial of special circumstance murders committed before Howard violates due
process. (U.S. Const., 5th & 14th Amends.) But defendant fails to cite any case
authority before Howard that applied the corpus delicti rule to a special
circumstance allegation not based on felony murder. Thus, contrary to defendant,
2
Section 190.41, enacted as part of Proposition 115, overturned People v.
Mattson, supra, 37 Cal.3d 85, for crimes committed after June 6, 1990. (See
People v. Ray (1996) 13 Cal.4th 313, 341, fn. 13.)
55
Howard did not unforeseeably change the law or lessen the prosecution’s burden
of proof on the financial gain special circumstances and he is not entitled to relief
on those grounds.
D. Constitutionality of the Multiple Murder and Financial Gain
Special Circumstances
Defendant contends the multiple murder and financial gain special
circumstances in California’s 1978 death penalty law violate the federal
Constitution’s Eighth Amendment in that they fail to “genuinely narrow the class
of persons eligible for the death penalty” (Lowenfield v. Phelps (1988) 484 U.S.
231, 244). We have previously rejected similar claims with respect to the special
circumstances collectively, concluding that “California’s scheme for death
eligibility satisfies the constitutional requirement that it ‘not apply to every
defendant convicted of a murder[, but only] to a subclass of defendants convicted
of murder.’ ” (People v. Arias (1996) 13 Cal.4th 92, 187; People v. Ray, supra, 13
Cal.4th at p. 356.)
According to defendant, the multiple murder and financial gain special
circumstances do not “foreclose[] . . . the prospect of . . . ‘wanton or freakish’
imposition of the death penalty.” (United States v. Cheely (9th Cir. 1994) 36 F.3d
1439, 1445 (Cheely), quoting Furman v. Georgia (1972) 408 U.S. 238, 310 (conc.
opn. of Stewart, J.).) We disagree.
Cheely struck down on Eighth Amendment grounds federal mail-bomb
statutes that authorized the death penalty “for persons guilty of no more than
involuntary manslaughter.” (Cheely, supra, 36 F.3d at p. 1443.) Cheely does not
assist defendant because under the multiple murder and financial gain special
circumstances, no person guilty only of involuntary manslaughter is subject to the
death penalty. To satisfy the requirements of each of California’s special
circumstances, a defendant must be “found guilty of murder in the first degree”
56
and one or more special circumstances must be found “to be true.” (§ 190.2, subd.
(a).) For the multiple murder special circumstance, a defendant must, in the same
proceeding, be convicted not only of first degree murder, but also of “more than
one offense of murder in the first or second degree.” (§ 190.2, subd. (a)(3).) The
financial gain special circumstance requires proof that the killing underlying the
first degree murder conviction was “intentional and carried out for financial gain.”
(§ 190.2, subd. (a)(1).) Neither special circumstance exposes a defendant to the
death penalty for involuntary manslaughter, and thus neither shares the defect
found present in the mail bomb statutes by the majority in Cheely. Indeed, the
Cheely majority would have found the mail bomb statutes constitutional had they
provided “that the sentence of death could be imposed only where serious bodily
harm or death were intended.” (Cheely, supra, 36 F.3d at p. 1445, fn. 15.) “In
such a case, the class of death-eligible defendants would be narrowed to those who
had the mens rea of murderers, and whose chosen method of killing was both
felonious and highly dangerous to third parties.” (Ibid.)
The special circumstances challenged here similarly narrow the class of
death-eligible first degree murderers to those who have killed and killed again, and
those who have killed to obtain personal monetary benefit. Exposing such
defendants to the death penalty is not “wanton or freakish” and does not violate
the Eighth Amendment.
E. Cumulative Effect of Errors
Having rejected on the merits each of defendant’s claims of error, we
likewise reject his contention that he was prejudiced by the cumulative effect of
errors committed before or at the trial on guilt and special circumstances.
57
VI. PENALTY PHASE
A. Cross-examination of a Prosecution Rebuttal Witness
1. Background
At the penalty phase, defendant presented a substantial case in mitigation.
Dr. Arthur Kowell, a neurologist, testified that the Nicolet BEAM machine
showed an abnormality in defendant’s middle-left posterior temporal lobe. A
BEAM test on defendant’s son Richard detected a similar abnormality in the same
area of Richard’s brain. Magnetic resonance imaging or MRI scans showed that
defendant also had a tumor at the base of his skull, near the brain center for
impulse control. According to Dr. Robert Bittle, a psychiatrist, defendant’s
BEAM results indicated both brain damage and organic dysfunction. He stated
that damage to an individual’s left temporal lobe may cause sudden mood shifts
and “aggressive, violent, destructive outbursts.”
Dr. Donald Lunde, a Stanford University professor of clinical psychiatry,
concluded that defendant was raised in a dysfunctional family in which his
mother, Geraldine Sapp, was the dominant figure. Geraldine had “various
problems, including psychiatric” for which she was prescribed powerful anti-
psychotic drugs. She was inappropriately punitive, beating her children with a belt
even for small infractions.
Psychologist Dr. Gretchen White expressed her opinion that defendant had
grown up in an “atmosphere which . . . consistently and systematically
undermined the civilizing influences of authority and societal figures.” His
mother had uncontrollable fits of anger. His oldest brother, Wayne, was in prison
while defendant was growing up. And a first cousin was on death row.
Psychologist Dr. Stephen Pittell, the director of three Bay Area drug
research and treatment centers, testified as an expert on the effects of substance
58
abuse on the central nervous system. From interviews with defendant and his
long-time friends, Dr. Pittell learned that defendant had since age 13 consumed an
extraordinary quantity and variety of controlled substances including marijuana,
LSD, heroin, sedatives, valium, seconal, methamphetamine, cocaine, and sleeping
pills. Dr. Pittell considered defendant to be in the top 5 percent of Bay Area drug
abusers. Defendant’s friends confirmed that defendant would typically ingest one-
half gram of methamphetamine six or seven times during an evening. This
amounted to 3000 milligrams or 15 times what is normally lethal.
Methamphetamine apparently had a calming effect on defendant, who took it to
counteract feelings of anger. Dr. Pittell concluded it worked on defendant in much
the same way that Ritalin (a drug closely related to methamphetamine) tends to
calm hyperactive children.
Psychologist Dr. David Stein, who administered psychological tests to
defendant, concluded that defendant suffers from a poor self-image and creates
“heroic and grandiose kinds of fantasies” to make himself feel better.
The prosecution, on rebuttal, sought to discredit the defense evidence. One
rebuttal witnesses, Dr. Paul Berg, a psychologist, testified that he had reviewed
various documents, including the tapes of defendant’s confessions in this case, his
juvenile court records, the probation report prepared in the felony case of reckless
burning of a dwelling, and the psychological evaluations of defendant. Berg had
also reviewed the transcripts of the defense penalty phase evidence. In his review
of these materials, Dr. Berg saw nothing to suggest that family dysfunction or
brain abnormalities would explain defendant’s criminal behavior. Instead Berg
concluded defendant manifested “an antisocial personality disorder,” which was
characterized by the lack of any restraints from societal prohibitions.
The defense sought to cross-examine Dr. Berg about charges of Medi-Cal
fraud brought against him, some four years before the penalty phase trial, but then
59
dismissed. As defense counsel explained, Berg had been the subject of a
complaint brought by the Attorney General alleging 43 counts of Medi-Cal fraud
dating from 1982 to 1987. When Berg prevailed in his suppression motion, the
Attorney General refiled the complaint but moved to dismiss it after determining
that the remaining evidence was insufficient.
Defense counsel argued that the jury in this case had the right to know that
Dr. Berg was dishonest. He pointed out that in a recent juvenile court matter a
deputy public defender had been allowed to cross-examine Dr. Berg about the
conduct underlying the charges. Counsel stated: “She asked him, as I would
intend to do, if in fact he had committed Medi-Cal fraud. . . . [¶] [After additional
questioning] Dr. Berg took the Fifth Amendment and his previous testimony on
direct [examination was] stricken.”
The trial court, relying on Evidence Code section 352, ruled the proposed
cross-examination on a collateral matter to be more prejudicial than probative,
noting that it would consume too much time and would “divert[] the jury” from its
primary purpose of deciding the appropriate penalty in this case.
2. Discussion
Defendant now contends that the trial court abused its discretion in
disallowing the proposed cross-examination, and that its ruling violated
defendant’s constitutional rights to confront and cross-examine a witness against
him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) We reject these
contentions.
As we explained in People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler):
“The voters [in enacting Proposition 8] have decreed at the least that in proper
cases . . . conduct involving moral turpitude should be admissible to impeach a
criminal witness. [¶] [But Proposition 8’s] section 28(d) does preserve the trial
court’s discretion to exclude evidence whose probative value is substantially
60
outweighed by its potential for prejudice, confusion, or undue consumption of
time. (Evid. Code, § 352.)” (Id. at p. 295.) “The statute empowers courts to
prevent criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues. . . . [¶] . . . Moreover, impeachment evidence other
than felony convictions entails problems of proof, unfair surprise, and moral
turpitude evaluation which felony convictions do not present. Hence, courts may
and should consider with particular care whether the admission of such evidence
might involve undue time, confusion, or prejudice which outweighs its probative
value.” (Id. at pp. 296-297.)
Although
Wheeler, supra, 4 Cal.4th 284 allows for impeaching a witness in
a criminal case with evidence of moral turpitude, it cautions that trial courts should
consider with “particular care” whether to allow such evidence. (Id. at p. 296.)
Here, the trial court acted within its discretion in precluding defense cross-
examination of Dr. Berg about Medi-Cal claims that he submitted years before
petitioner’s trial and that were never proven to be fraudulent.
Defendant
asserts
that
even if proper under state law, the trial court’s ruling
violated his federal constitutional right to confront a witness testifying against
him. We disagree. The federal Constitution’s confrontation right is not absolute;
it leaves room for trial courts to impose reasonable limits on a defense counsel’s
cross-examination of a witness. (Delaware v. Van Arsdall (1986) 475 U.S. 673,
679; People v. Box (2000) 23 Cal.4th 1153, 1203.) We discern no violation of
defendant’s right to confront and cross-examine Dr. Berg in the trial court’s ruling
here. Whether Dr. Berg had or had not filed false claims with Medi-Cal was, at
most, nominally relevant to the subject matter of his testimony: expert opinion
that defendant’s criminal behavior was attributable to antisocial personality
disorder, not brain abnormalities or family dysfunction.
61
Lindh v. Murphy (7th Cir. 1997) 124 F.3d 899, cited by defendant, fails to
support his claim of federal constitutional error. In that case, a divided federal
appeals court granted habeas corpus relief to a defendant who at the “mental state”
phase of his Wisconsin murder trial was precluded from cross-examining a
prosecution expert witness about potential sources of bias. The witness, a
psychiatrist, testified that the defendant was not suffering from any mental disease
when he killed his two victims. At the time of that testimony, the expert witness
had felony charges pending against him that could have resulted in the loss of his
medical license. As the federal appeals court explained: “[The psychiatrist] may
have believed that testimony helping the prosecution in this case, which achieved
notoriety throughout Wisconsin, would aid his cause, if only because it was bound
to come to the attention of the judge who presided in the prosecution against him.”
(Id. at p. 901.)
Even then, the federal appeals court majority considered the confrontation
clause question to be “close.” (Lindh v. Murphy, supra, 124 F.3d at p. 901.) It
granted relief to the defendant only because of prosecution evidence that the
psychiatrist held particularly high stature in his profession, leaving the jury to
view him and his testimony in a “rosy glow.” (Ibid.) Here, defendant points to
similar evidence of Dr. Berg’s high standing as a psychologist. But the evidence
also shows that Dr. Berg was not the subject of any criminal prosecution when he
testified in this case, and thus unlike the expert witness in Lindh lacked any
personal incentive to slant his testimony to “aid his cause.” Here, the Attorney
General had long since obtained a dismissal of the charges against Dr. Berg for
lack of evidentiary support; because the evidence necessary to those charges had
earlier been suppressed, there was no likelihood of their being refiled.
There is another reason why Lindh v. Murphy, supra, 124 F.3d 899, does
not assist defendant here. There, central to the court’s decision to grant defendant
62
Lindh relief was its conclusion that the state court “[p]roceedings to determine
Lindh’s mental state when he pulled the trigger were not strictly ‘sentencing’ ” but
rather were “closely associated with the issue of guilt or innocence.” (Id. at
p. 900.) A contrary conclusion would have been fatal to defendant Lindh’s
confrontation clause claim because that circuit follows the rule that the federal
Constitution’s confrontation clause does not apply at sentencing, including “the
balancing phase” of capital sentencing. (Szabo v. Walls (7th Cir. 2002) 313 F.3d
392, 397-399 [distinguishing two aspects of the Illinois capital scheme: “the
capital-eligibility phase” from the sentence-selection or “balancing” phase, and
concluding that the right to confrontation does not apply to the latter].)
Even assuming that the Sixth Amendment to the federal Constitution
protects the right to confront and cross-examine witnesses testifying at the penalty
phase of a California capital trial and that this right was infringed by the restriction
on defendant’s cross-examination of prosecution rebuttal witness Dr. Berg, we
conclude defendant suffered no possible prejudice.
On rebuttal, the prosecution sought to undercut defense evidence attributing
defendant’s criminal behavior to psychological and neurological factors outside
his control. In addition to Dr. Berg, two other prosecution witnesses testified to
that effect: Dr. Douglas Goodin, a neurology professor, testified that the BEAM
test results relied on in the defense case in mitigation were not reliable. The
technology was considered by its inventor to be experimental. According to
Dr. Goodin, the BEAM technology is additionally questionable because of
problems with the statistics used in evaluating BEAM test results, which score an
extremely high percentage of persons in the abnormal range. Dr. Goodin reviewed
defense witness Dr. Kowell’s BEAM test results for defendant and defendant’s
son Richard, and pronounced defendant’s results as within the range of normal.
Asked about Kowell’s determination that Richard’s BEAM mapping was virtually
63
identical to defendant’s -- implying some genetic explanation for defendant’s
criminal behavior -- Dr. Goodin responded, “I think it’s nonsense.” Goodin
testified that but for one insignificant point of overlap, the results for Richard and
defendant were “completely different.” Furthermore, murder victim John Abono’s
wife, Cathy Nelson, provided rebuttal testimony that defendant had long ago
bragged about having a “mass” in his head, which he anticipated could prove
useful to defend a criminal charge. Thus, to a substantial extent, Dr. Berg’s
testimony was cumulative of the testimony of the other prosecution rebuttal
witnesses.
Defendant seeks to distinguish Dr. Berg’s testimony from that of the two
other prosecution rebuttal witnesses on the ground that only Dr. Berg discredited
the entire defense case in mitigation, not just parts of it. Defendant argues that the
testimony of Dr. Berg attributing defendant’s murderous behavior to an antisocial
personality rather than family dysfunction or brain abnormalities allowed the jury
to reject the defense case in mitigation out of hand. As we explain, this argument
fails.
The penalty phase jury asked during deliberations to rehear defense
evidence regarding the effect of head injuries, brain abnormalities, and
psychological influences on defendant’s behavior. And that jury took three full
days to return its verdict. Thus, the record fails to support defendant’s contention
that the jury disregarded the defense case in mitigation.
We also reject two related arguments made by defendant. He asserts that
the prosecution improperly entertained inconsistent theories about Dr. Berg’s
behavior in this case and in the two cases the Attorney General brought against
Dr. Berg for Medi-Cal fraud. In the fraud cases, the Attorney General was
obviously taking the position that Berg had fraudulently obtained public funds,
whereas here the prosecutor, in opposing defendant’s motion to cross-examine
64
Berg about Medi-Cal fraud, argued that Berg probably had done nothing wrong.
Defendant likens this to a prosecutor who, to convict codefendants in separate
trials, offers inconsistent theories and facts regarding the same crime. (See
Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045, 1058 (in bank), revd. on
other grounds sub nom. Calderon v. Thompson (1998) 523 U.S. 538.) We are not
persuaded.
Whatever similarity may exist between a prosecutor who argues
inconsistent theories of individual culpability to obtain convictions of
codefendants tried separately and a prosecutor who argues that the facts
underlying a dismissed criminal case may ultimately prove more time consuming
than probative for impeaching a witness, it does not assist defendant here. As we
have already concluded, defendant suffered no possible prejudice from the court’s
allowing the jury to hear Dr. Berg’s testimony without learning that Berg had been
the subject of dismissed charges of Medi-Cal fraud.
Defendant also asserts that trial counsel was ineffective in failing to point
out that the prosecutor was advancing a position inconsistent with the Attorney
General’s case against Dr. Berg and for not arguing that the evidence suppressed
in the Attorney General’s case against Dr. Berg would have been admissible in
this case. These claims too fail for want of prejudice. (Strickland v. Washington,
supra, 466 U.S. at p. 669.)3
3
The Attorney General asked that we take judicial notice of a finding by the
Alameda County Municipal Court under section 851.8, subdivision (b) that
Dr. Berg was “factually innocent” of the Medi-Cal fraud charges. (See People v.
Adair (2003) 29 Cal.4th 895 [discussing factual innocence findings].) The factual
innocence finding dates from March 1, 1993, about one and one-half years after
trial ended in this case. We have denied the Attorney General’s request and do not
rely on the factual innocence finding in resolving the claims here.
65
B. The Murder of Geraldine Sapp
1. Sufficiency of evidence
Included in the prosecution’s penalty phase case in aggravation was
evidence that defendant had committed the unadjudicated murder of his mother,
Geraldine Sapp. (§ 190.3, factor (b) [allowing jury consideration of “criminal
activity by the defendant that involved the use or attempted use of force or
violence.”].) Defendant unsuccessfully sought to have the evidence excluded as
legally insufficient. He renews that contention here, asserting that the evidence
failed to “support a finding by a rational trier of fact as to the existence of such
activity beyond a reasonable doubt.” (People v. Clair (1992) 2 Cal.4th 629, 672-
673.) He also argues that introduction of the evidence rendered the death verdict
unreliable in violation of the Fifth, Eighth, and Fourteenth Amendments to the
federal Constitution. We disagree.
In 1984 and 1985, defendant’s mother Geraldine Sapp was living near
Oroville in Butte County. In October 1984, she withdrew $5,000 from her savings
account at the First Interstate Bank in Oroville. In February and March 1985,
Geraldine, accompanied by defendant, went to the First Interstate Bank to cash
certificates of deposit totaling $58,000, which the bank paid to her in $20-, $50-,
and $100-bills. She told bank personnel she needed the money for a business
venture with her son “John.”
In June 1985, defendant was living with Geraldine. A neighbor, Carmella
Borchard, kept livestock on Geraldine’s property. Borchard saw Geraldine on
June 4 or 5, but never saw her again. Borchard recalled that defendant left in his
van during the afternoon of June 5 and returned two days later. She deduced that
while defendant was away no one else was at Geraldine’s place because the water
trough for Geraldine’s livestock was empty and one of Geraldine’s horses was
trying to eat the feed Borchard provided for her own horse.
66
On June 7, around 4:00 p.m., defendant inquired of another neighbor,
Margarita Richards, whether she had seen Geraldine. Defendant told Richards
that he had just returned home, that his mother was not at the house, but that none
of her things appeared to be missing. Defendant then notified the Butte County
Sheriff’s Department that his mother was missing. Deputy Sheriff Donald
Houghton came to the house and spoke with defendant. Defendant said that he
had been in the Bay Area fishing for two days and when he returned home, the
house was locked but his mother was not there. Her clothes, checkbook, purse,
and wallet were in the house and her car was in the garage. Defendant also told
Deputy Houghton that when he got back from fishing he found a couple of days’
mail in the mail box and newspapers in front. Defendant had checked with friends
and relatives but no one knew Geraldine’s whereabouts. Defendant told Houghton
that he suspected his mother had been kidnapped by Gene and Carlene Aughe,
members of an “outlaw” motorcycle gang. The next day, June 8, defendant
telephoned Tony Koester, an investigator for the Butte County District Attorney’s
Office and said the Aughes had kidnapped Geraldine because she had testified
against them in 1983.
After defendant’s April 26, 1986, arrest in Nevada County on an
outstanding warrant, he again spoke with investigator Koester about his mother’s
disappearance. This time defendant said that when he returned to his mother’s
house on June 7, 1985, he knew within five seconds who was responsible for her
disappearance. Defendant described the person only as a 42-year-old White male,
who lived in Concord and dealt in large quantities of drugs. According to
defendant, his mother had “nosed” into the drug dealer’s business, so the man
killed her. Defendant added that he had found the man, taken him at gunpoint by
boat to an area in the San Francisco Bay between Alcatraz and Angel Islands, and
67
extracted from him a confession and the location of Geraldine’s body. Defendant
then killed the man and dumped his body in the bay.
On April 27, 1986, defendant directed Butte County law enforcement
officers to a remote area near the town of Gridley. Defendant walked to a dried-up
pond, and said this was the location where the killer said he had left Geraldine’s
body. On May 1, 1986, no more than 30 feet from the area pointed out by
defendant, a search team found Geraldine’s skeletal remains. Her death was likely
the result of a powerful blow to the skull, which drove the mandible into the
cranium, severing the artery.
Contra Costa County’s missing persons records for the dates June 1, 1985,
through June 1, 1986, showed the filing of 38 missing person’s reports. All of
those were ultimately accounted for; there was no open case in that period
involving a missing White male in his early 40’s (allegedly killed by defendant for
killing defendant’s mother, Geraldine).
From this evidence, the jury could reasonably conclude that defendant on
either June 4 or 5, 1985, killed his mother and deposited her body in the remote
area near Gridley. Over the next few days, he traveled to the Bay Area to establish
an alibi, reported his mother missing and, to deflect attention from himself,
suggested that an outlaw couple, the Aughes, had kidnapped her, and that he later
falsely claimed that an unnamed White male in his early 40’s was the killer.
2. Comment by defense expert witness
We reject defendant’s contention that the penalty phase judgment must be
reversed for prosecutorial misconduct in eliciting on cross-examination a comment
from a defense expert witness, Dr. Donald Lunde, that defendant’s siblings did not
visit him in jail because they believed he had killed their mother. Defendant also
asserts that defense counsel was ineffective in failing to object, particularly
because the topic had been earlier ruled inadmissible when raised in connection
68
with evidence that defendant’s brother Mike thought defendant was their mother’s
killer.
Both claims fail for want of prejudice. It is neither reasonably possible
(People v. Jackson (1996) 13 Cal.4th 1164, 1232) nor reasonably probable
(Strickland v. Washington, supra, 466 U.S. at p. 669) that the jury would have
reached a different verdict at the penalty phase had it not heard Dr. Lunde’s brief
comment.
3. Prior statements of Jeanne Aplington
Jeanne Aplington was defendant’s girlfriend for about three years,
including the summer of 1985 when his mother disappeared. On June 12, 1985, a
few days after defendant reported his mother missing, Butte County District
Attorney investigator Tony Koester interviewed Aplington and prepared a report.
On November 18, 1985, the Butte County District Attorney’s Office deposed
Aplington.
The
prosecution
subpoenaed Aplington to testify at the penalty phase of
defendant’s capital trial. She appeared with counsel, but refused to talk to the
prosecutor. The trial court held a hearing outside the jury’s presence to decide
whether the prosecutor could use prior statements by Aplington from her June 12,
1985, interview by investigator Koester and her November 18, 1985, deposition to
impeach her before the jury. At that hearing, Aplington claimed she could not
remember the statements she made to investigator Koester and in her deposition.
The trial court ruled that Aplington had given “a series of evasive answers” and
her “stated lapse of memories are in effect denials,” and therefore, over defense
objection, allowed the prosecutor to use Aplington’s prior statements to impeach
her. The statements included (1) claims by Aplington that she spoke by telephone
with Geraldine Sapp on June 4 and 5, 1985, and that defendant spent the night of
June 5, 1985, at Aplington’s home in Contra Costa County, and (2) recitations by
69
Aplington of defendant’s comments implicating himself in Geraldine’s
disappearance.
Defendant now contends that these prior statements by Aplington were
inadmissible hearsay (Evid. Code, § 1200) whose admission denied him the right
of confrontation under the Sixth Amendment to the federal Constitution. Because
defendant concedes that defense counsel did not raise a Sixth Amendment
objection in the trial court, that issue is not properly before us. In any event, we
reject the contention.
“A statement by a witness that is inconsistent with his or her trial testimony
is admissible to establish the truth of the matter asserted in the statement under the
conditions set forth in Evidence Code sections 1235 and 770.” (People v. Johnson
(1992) 3 Cal.4th 1183, 1219.) Those statutes, as relevant here, provide for the
admission against a hearsay challenge of a prior statement by a witness “if the
statement is inconsistent with his testimony at the hearing and is offered in
compliance with Section 770.” (Evid. Code, § 1235.) Under Evidence Code
section 770, prior inconsistent statements are admissible only if: “(a) The witness
was so examined while testifying as to give him an opportunity to explain or to
deny the statement; or [¶] (b) The witness has not been excused from giving
further testimony in the action.”
Defendant does not deny that the conditions of Evidence Code section 770
were satisfied here. Rather, he asserts that Aplington’s trial testimony was not
inconsistent with her former statements because she testified that she could not
recall either the specific events in 1985 regarding the disappearance of
defendant’s mother or what she had said about those events at that time. We
spoke to this exact issue in People v. Johnson, supra, 3 Cal.4th at page 1219:
“Normally, the testimony of a witness that he or she does not remember an event
is not inconsistent with that witness’s prior statement describing the event.
70
[Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency in
effect, rather than contradiction in express terms, is the test for admitting a
witness’ prior statement [citation], and the same principle governs the case of the
forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts
to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a
reasonable basis in the record for concluding that the witness’s ‘I don’t remember’
statements are evasive and untruthful, admission of his or her prior statements is
proper.” (Italics added.)
That is the situation here. Ample evidence supports the trial court’s
determination that Aplington’s lack of memory amounted to deliberate evasion.
Thus, there was no state law error. Furthermore, admission of Aplington’s prior
statements under one of this state’s traditional hearsay rule exceptions did not
implicate defendant’s Sixth Amendment right to confront and cross-examine her
because she testified and thus was subject to defendant’s cross-examination.
(People v. Zapien (1993) 4 Cal.4th 929, 955.) Because there was no confrontation
clause violation, we reject on the merits defendant’s claim that his trial counsel
was ineffective in failing to object to the admission of Aplington’s prior
inconsistent statements on that ground.
4. Defendant’s “appointment in Sacramento”
Defendant
raises
another claim arising from Aplington’s trial testimony.
The prosecutor sought to elicit evidence that defendant made incriminating
statements before and after he took a polygraph test on June 11, 1985, in
Sacramento for the Butte County District Attorney investigators. To do so, the
prosecutor questioned Aplington using the transcript of her November 18, 1985,
deposition and, in an effort to refresh her recollection, had her look at the
transcript. Earlier, at the hearing without the jury present (see pt. VI. B.3, ante),
the prosecutor had mentioned the polygraph when questioning Aplington about
71
defendant’s incriminating statements, but she denied any recollection of those
statements.
At trial, when the prosecutor began his questioning of Aplington about
defendant’s statements before and after the polygraph test, he tried to avoid
mentioning the polygraph test itself by asking Aplington if she recalled defendant
having “an appointment in Sacramento that he was going to keep.” Aplington
replied that she did not understand “what you’re asking,” and then asked, “What
appointment would that be?”
The prosecutor then requested a sidebar conference. The trial court
suggested that to avoid the witness “blurt[ing] something out that’s inappropriate
. . . something to do with a . . . polygraph,” the parties should stipulate to a
“sanitized” phrase to substitute for the word “polygraph” in the deposition
transcript. Defense Counsel Houghton responded: “I have no problems
stipulating that the deposition [transcript] indicates that [defendant] had an
appointment in Sacramento.” But Defense Counsel Young disagreed, suggesting
that the “sanitized stipulation,” in which the phrase “appointment in Sacramento”
would be substituted in the transcript for the word “polygraph” would have no
“relevance . . . to the D.A.’s burden of proof.” The trial court then stated: “I
suppose [the prosecutor] could plunge into it. Under the circumstances, somebody
mentions polygraph, I will tell [the jurors] they can’t pay any attention to it.”
Thereafter, to lay a foundation for introducing Aplington’s prior statements
describing defendant’s incriminating comments, the prosecutor questioned her
about defendant’s having a meeting in Sacramento. During this questioning, the
prosecutor referred the witness to the deposition transcript. This exchange took
place:
Prosecutor: “Now, do you remember the appointment that [defendant] had
in Sacramento?”
72
Aplington: “Well, I have read [the transcript]. I’m sure I said it. But at
this point in time I don’t remember those days.”
Prosecutor: “Do you remember the appointment in Sacramento?”
Aplington: “I won’t have any reason to lie, but to this date I do not
remember it.”
The
questioning
continued:
Prosecutor: “Well, last week, for example, when you testified [outside the
jury’s presence], you indicated that you didn’t remember and then all of a sudden
you later recalled.”
Aplington: “That I talked to [defendant]?”
Prosecutor: “About that appointment in Sacramento. Didn’t you?”
Aplington: “I think I felt pressured into it pretty much. Because I really
don’t recollect it.”
Prosecutor: “Didn’t last week you say in this Court, I don’t recall, and then
suddenly remembered the appointment in Sacramento?”
Responding to this question, Aplington blurted out: “The polygraph?”
Defense counsel objected, and the trial court instructed the jury: “Ladies
and Gentlemen, there’s been a mention of a polygraph. This is something that
under no circumstances should enter into your considerations in this case.
Whether there was or was not is not something that’s permitted into your
considerations. That’s one of those things that you have to completely and totally
strike from your memories and from any use in this trial.
“Certainly if somebody does think during your deliberations that that is
something you should speculate about, then the rest of you are going to have to
say, no, that can’t be done.
“Is that okay with everybody? Anybody have any questions about that?
“No speculation. No use of it under any circumstances whatsoever?”
73
Thereafter, the prosecutor continued to question Aplington about
defendant’s incriminating statements and used as a point of reference the meeting
in Sacramento. For example, the prosecutor asked: “Before [defendant] left the
meeting in Sacramento, did he tell you that if you did not hear from him you’re to
call the [Butte County] Sheriff’s Department and ‘see what my bail is’?”
Defendant now contends the prosecutor “badgered” Aplington into
revealing that defendant “had taken a polygraph examination regarding his
mother’s disappearance” and then “exploited the error in a way that allowed the
jury to infer” that defendant had “failed the test.” According to defendant, this
rendered the penalty trial fundamentally unfair in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the federal Constitution. Defendant’s
theory seems to be that the prosecutor was to blame for Aplington’s mention of the
polygraph, and that his continued questioning of her thereafter about defendant’s
“meeting in Sacramento” would have suggested to the jury that defendant took a
polygraph test and flunked it. Defendant also accuses his trial counsel of
incompetence for not asking the trial court to order the prosecutor to replace the
phrase “meeting in Sacramento” with some less specific reference, such as
“sometime in the week after Mrs. Sapp’s disappearance.” We reject these
contentions.
“Evidence Code section 351.1 provides that the results of a polygraph
examination ‘shall not be admitted into evidence in any criminal proceeding . . .
unless all parties stipulate to the admission of such results.’ The statute also
excludes evidence of ‘an offer to take’ or the ‘failure to take’ such a test.” (People
v. Espinoza (1992) 3 Cal.4th 806, 816.) Thus, evidence that a defendant took a
polygraph test would violate California statutory law. No such evidence was
introduced in this case, however. Rather, the prosecutor and the trial judge, both
mindful that Aplington might “blurt” out something about defendant taking a
74
polygraph examination, sought to “sanitize” the language in the transcript the
prosecutor was using when questioning Aplington. Although Attorney Houghton
offered to enter into a stipulation that would have eliminated the word “polygraph”
from the transcript, Attorney Young disagreed on the ground that such a
stipulation would lighten the prosecution’s burden of proof. While defense
counsel had no obligation to enter into the stipulation suggested by the trial court,
under the circumstances here, when the witness, as the trial court predicted,
blurted out the word “polygraph,” defendant cannot fault the court or the
prosecutor. (See People v. Cooper, supra, 53 Cal.3d at p. 827.)
In any event, Aplington’s comment was brief and did not directly tell the
jury whether or not defendant had taken a polygraph test or inform it of the subject
matter or results of any such test. The trial court immediately admonished the jury
not to consider anything about a polygraph examination. We assume the jury
complied with that admonition. (People v. Pride (1992) 3 Cal.4th 195, 240.)
Moreover, in light of the very strong, if not overwhelming, evidence that
defendant killed his mother, the witness’s blurting out the word “polygraph”
resulted in no possible prejudice.
5. Aplington’s fear of defendant
At trial, the prosecutor presented evidence that in 1985 and 1986, defendant
made various threats to Aplington, and she was afraid of him. The trial court ruled
such evidence relevant to Aplington’s credibility, specifically on the issue of the
validity of her claimed inability to recall pertinent incidents surrounding the
disappearance of defendant’s mother, Geraldine. Thus, the prosecutor elicited
Aplington’s testimony that defendant threatened to put Aplington and her two
young daughters “in the pond” behind Geraldine’s house. Aplington stressed,
however, that defendant “didn’t say kill, because putting us in the pond,
underneath the pond is obviously not living, but he did not use the word kill.” The
75
prosecutor also brought out that at Aplington’s deposition, when asked if she
“believe[d]” defendant might kill her, she replied, “I know that after this,” adding,
“you guys get to go home to your normal houses and stuff and you won’t have
[defendant] coming after you.” (Italics added.)
Shortly after June 8, 1985, when defendant reported his mother missing,
Aplington moved with her children from her Contra Costa County home to a
women’s shelter in Monterey County. On July 15, 1985, Aplington telephoned
District Attorney investigator Tony Koester and told him she was very frightened
of defendant, who was “call[ing] around,” trying to find out where she was hiding.
But when cross-examined in this case, Aplington attributed her fearfulness not to
anything defendant had done but to the “authorities” who threatened to take her
children away and send her to jail if she failed to cooperate, and who were telling
her she would be defendant’s next victim.
Defendant now contends that the trial court erred by admitting evidence of
Aplington’s fear of him, and that the prosecutor’s comments on this evidence
during closing argument were misconduct. He further contends that the trial court
should on its own initiative have instructed the jury it could consider this evidence
only in assessing Aplington’s credibility and not as showing defendant’s intent to
harm Aplington, and that trial counsel was ineffective for not requesting such a
limiting instruction. According to defendant, the treatment of the evidence of
Aplington’s fear violated not only California law but also the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the federal Constitution, thus compelling reversal
of the death judgment. We disagree.
Generally, evidence that a witness is afraid to testify is admissible as
relevant to the witness’s credibility. (Evid. Code, § 780; People v. Warren (1988)
45 Cal.3d 471, 481.) Assuming that evidence of Aplington’s fear of defendant in
1985 and 1986 shortly after defendant’s mother disappeared would have
76
somewhat less bearing on Aplington’s apparent unwillingness to testify for the
prosecution in 1991 at defendant’s capital trial, we discern no possible prejudice.
We have considered the evidence, the prosecutor’s treatment of it during closing
argument, and trial counsel’s failure to request a limiting instruction that it had no
obligation to give without request (People v. Padilla (1995) 11 Cal.4th 891, 950).
We are satisfied that it is neither reasonably possible (People v. Jackson, supra, 13
Cal.4th at p. 1232) nor reasonably probable (Strickland v. Washington, supra, 466
U.S. at p. 669) that the evidence or its treatment altered the penalty phase outcome
at defendant’s capital trial.
C. The Attempted Murder of Donna Smith
Over defense objection, the prosecution introduced this evidence at the
penalty phase of defendant’s trial: Donna Smith, a drug dealer and manufacturer,
became friends with defendant in 1983. Early in their relationship, Smith and
defendant were wrestling on a lawn when defendant said he wanted “to fuck
[Smith] just before [her] body turned cold while it was still bleeding.”
In early 1986, Smith was living with Carolyn Clark and Brian Magidson at
Lake Tahoe. Magidson gave Smith $48,000 to keep for him while he served a
prison term. Defendant knew about the money but did not know where Smith had
hidden it. While Smith and defendant were away, federal Drug Enforcement
Agency (DEA) agents raided Smith’s house. When Smith and defendant returned,
Magidson’s money was missing. Defendant suggested the DEA agents had taken
the money. Smith told Clark she thought defendant had taken the money.
Magidson blamed Smith for the loss.
On March 21, 1986, defendant telephoned Smith telling her he had heard
she had accused him of stealing Magidson’s money. Defendant said he was going
to have to “whack” somebody, and that she had better get the money situation
straightened out so he did not have to “come up [to Lake Tahoe] and put holes in
77
people.” Defendant also said he “didn’t want to have to come up there and shut
[Smith’s] mouth permanently.” Shortly thereafter, Smith was arrested. Defendant
wrote to her in jail, accusing her of “trying to set [him] up,” and stating that
“people [they] knew” wanted Smith dead and had asked defendant to “whack” her.
In April 1986, Smith was living at her father’s house trailer in Grass
Valley, near Nevada City in Nevada County. Smith arranged with the Nevada
County Sheriff’s Department to set defendant up. Smith telephoned defendant and
asked him to drive her to New Mexico. Initially, he “put[] [her] off” but
ultimately he agreed. On April 22, defendant called Smith and said, “I am coming
to your Dad’s, [so] make sure there is nobody around.” Defendant arrived at the
house trailer around 11:00 a.m., and was promptly arrested on the outstanding
Butte County warrant for being a felon in possession of a concealable firearm. In
defendant’s car, Sheriff’s deputies found several firearms including a .22-caliber
Ruger pistol equipped with a homemade silencer. When questioned after his
arrest, defendant told Butte County District Attorney investigator Koester that he
had gone to Grass Valley intending to use the Ruger pistol to kill Smith. He also
told Colusa County Deputy Sheriff Steven McCulloch that he planned to kill
Smith and bury her body in the desert.
The trial court instructed the jury: “Evidence has been introduced for the
purpose of showing that the defendant has committed the following criminal acts
or activity.” The court then mentioned the criminal acts on which evidence was
presented including “The attempted murder of Donna Smith.” At defense
counsel’s request, the trial court did not instruct the jury on the elements of
attempted murder. (See CALJIC Nos. 6.00, 6.01 (5th ed. 1988).)
Defendant contends the evidence was legally insufficient to establish
attempted murder, and it failed to satisfy the requirements of the corpus delicti
rule. He further contends that counsel was ineffective in expressly waiving a jury
78
instruction on the elements of attempted murder. According to defendant, juror
reliance in this case on the evidence described above rendered the death verdict
unreliable in violation of the federal Constitution’s Eighth and Fourteenth
Amendments because the prosecutor in argument to the jury substantially relied on
the incident involving Smith, stressing to the jury that were it not for “good police
work,” “Donna Smith would be dead today” and “we would have another body.”
We reject these contentions.
The evidence of the alleged attempted murder of Donna Smith was
admitted under section 190.3, factor (b), which provides for the admission at the
penalty phase of “[t]he presence or absence of criminal activity by the defendant
which involved the use of force or violence or the express or implied threat to use
force or violence.”
Defendant contends the evidence that he threatened Smith and later went to
pick her up at her father’s house established at most preparation for the crime of
attempted murder, not attempted murder. In support, defendant cites the
discussion of sufficiency of evidence for attempted robbery in People v. Kipp
(1998) 18 Cal.4th 349 (Kipp). It states that an attempted robbery has been
committed “at the point” at which, “[i]f the transaction is interrupted . . . , no one
would doubt that the defendant is guilty of an attempted robbery, because the
actual or attempted use of force is sufficient to move the transaction beyond the
sphere of mere preparation and into the zone of actual commission of the crime of
robbery.” (Id. at p. 377.) Defendant contrasts the situation described in Kipp with
the evidence that he came to Smith’s father’s house at her request to drive her to
New Mexico, and that he had with him firearms including a .22-caliber pistol
fitted with a silencer. Defendant suggests that notwithstanding his threats a month
or so earlier to “whack” Smith or “put holes” in her or “shut [her] mouth
permanently,” the evidence did not show that “the transaction [had progressed]
79
beyond the sphere of mere preparation and into the zone of actual commission of
the crime” of murder. Assuming this is so, defendant cannot complain of any
impropriety in the admission of the evidence of his threats to Smith and his arrival
at her father’s Grass Valley house trailer with firearms, because that evidence,
whether or not sufficient to establish attempted murder, was independently
admissible under section 190.3, factor (b) as showing, at least, “the express or
implied threat to use force or violence.” (See People v. Jackson, supra, 13 Cal.4th
at pp. 1235-1236; People v. Roberts (1992) 2 Cal.4th 271, 332.)
In a related contention, defendant asserts the admission during the penalty
phase trial of his statements to Butte County and Colusa County authorities of his
intent to kill Smith and bury her body in the desert violated the corpus delicti rule.
That rule generally requires the prosecution to prove “the body of the crime itself”
independent of a defendant’s extrajudicial statements. (People v. Alvarez, supra,
27 Cal.4th at pp. 1168-1169 (Alvarez).) Assuming that the corpus delicti rule
applies to unadjudicated crimes admitted as aggravating evidence (§ 190.3, factor
(b)) at the penalty phase of a capital trial, defendant’s contention must fail based
on our recent decision in Alvarez.
In
Alvarez, supra, 27 Cal.4th 1161, we considered the corpus delicti rule in
light of the adoption by the California voters on June 8, 1982 of Proposition 8,
adding section 28, subdivision (d) (section 28(d)), the “Truth-in-Evidence”
provision, to article I of the California Constitution. We held: “[I]nsofar as the
corpus delicti rule restricts the admissibility of incriminatory extrajudicial
statements by the accused, section 28(d) abrogates it” for crimes committed after
June 8, 1982. (Alvarez, supra, at p. 1174.) Here, the prosecution’s evidence
supporting the unadjudicated attempted murder of Donna Smith took place
between 1983 and 1987, after the voters adopted the Truth-in-Evidence provision.
Accordingly, evidence of defendant’s statements to authorities that he met Smith
80
at her father’s house trailer in Grass Valley on April 22, 1986, intending to kill her
and bury her body in the desert were properly admitted in evidence, regardless of
whether the prosecution presented evidence of the crime of the attempted murder
of Smith independent of defendant’s incriminating statements. (Alvarez, supra, at
p. 1174.)
As we acknowledged in Alvarez, supra, 27 Cal.4th 1161, “section 28(d) did
not abrogate the corpus delicti rule insofar as it provides that every conviction
must be supported by some proof of the corpus delicti aside from or in addition to
[a defendant’s incriminating] statements, and that the jury must be so instructed.”
(Id. at p. 1165, italics omitted.) But we stressed: “the modicum of necessary
independent evidence of the corpus delicti . . . is not great. The independent
evidence may be circumstantial, and need only be ‘a slight or prima facie
showing’ permitting an inference of injury, loss, or harm from a criminal agency,
after which the defendant’s statements may be considered to strengthen the case
on all issues.” (Id. at p. 1181.) Here, evidence of defendant’s repeated threats to
Smith, and his possession of firearms and a silencer when he arrived at Smith’s
father’s Grass Valley house trailer after telling her to wait for him there alone was
sufficient to permit an inference of injury, loss, or harm from a criminal agency.
We therefore reject defendant’s contention that the prosecution presented
insufficient evidence of the corpus delicti of the attempted murder of Smith.
In any event, the jury already knew from the guilt phase that defendant had
committed the murders of his fellow drug dealer Weber, his former girlfriend
Duarte, and his high school friend Abono, and from the penalty phase the jury
learned that he had killed his mother and had attempted to murder Al Redenius.
Thus, defendant suffered no possible prejudice from the introduction of his own
statements that he intended to kill Smith and bury her body in the desert. (See
People v. Jackson, supra, 13 Cal.4th at p. 1232.) For the same reason, absence of
81
any possible prejudice, defendant’s claim of ineffective assistance of counsel must
fail. (Strickland v. Washington, supra, 466 U.S. at p. 669.)
D. Prosecution Expert’s Comment
Dr. Paul Berg, a clinical psychologist, was a prosecution witness at the
penalty phase. Berg testified on rebuttal that defendant’s homicidal conduct was
attributable to his antisocial personality rather than to brain dysfunction or
abnormality. When the prosecutor asked Berg to give examples of “the kind[s] of
things” Berg had considered in reaching that conclusion, Berg responded: “Well,
first of all, I considered the fact that other than the three murders that he’s been
convicted of, that there’s been a great deal of other violent behavior: Being hired,
for example, to kill Al Redenius, admitting the planning of the killing of Donna
Smith; he talks about having killed someone when he was 16 years old.” (Italics
added.)
Defense counsel moved to strike Dr. Berg’s reference to defendant’s talking
about killing someone when he was 16, and also sought a mistrial claiming, in
part, that the prosecutor deliberately elicited the comment. The trial court denied
the mistrial motion, but admonished the jury: “As to the statement about a murder
committed by the defendant at the age of 16, you know about that. Not only is
there no evidence before you of such an offense, none was ever charged and the
defendant has no conviction for such an alleged offense.”
Defendant now claims reversible error in the trial court’s failure to grant a
mistrial, and he renews his contention of prosecutorial misconduct. In addition, he
argues that “the disclosure by Dr. Berg violated” Evidence Code section 352 and
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.
We reject these contentions.
The comment by Dr. Berg was brief and made in the context of a capital
trial at which the jury had already heard voluminous evidence of defendant’s
82
propensity for violence and homicidal behavior. The trial court instructed the jury
not to consider the comment, so we assume it did so. (People v. Pride, supra, 3
Cal.4th at p. 240.) Furthermore, the record fails to support defendant’s contention
that the prosecutor deliberately elicited the comment.
E. Prosecutor’s Cross-examination of Defense Witnesses
Claiming infringement of his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the federal Constitution, defendant seeks reversal of
the death judgment based on three instances of the prosecutor’s cross-examination
of defense witnesses. Defendant concedes that the defense at trial did not object to
any of these three instances. Thus, defendant has not preserved any of these
claims. (People v. Earp, supra, 20 Cal.4th at p. 858; People v. Price, supra, 1
Cal.4th 324, 447.) In any event, they do not entitle him to relief.
The first instance involves the prosecutor’s questioning of clinical
psychiatry professor Dr. Donald Lunde about his evaluation of defendant.
Questioned about whether he had taken into account defendant’s murders of the
victims in forming his opinion, Dr. Lunde testified: “What I have tried to present
is my opinion about [defendant] as a human being as somebody who I am not
saying he didn’t do it or he didn’t kill some other people or whatever.” (Italics
added.)
The following interchange then took place:
Prosecutor: “So you are not saying that [defendant] confessed to things he
didn’t do?”
Dr. Lunde: “No.”
Prosecutor: “And you’re not saying, you are not debating the verdict of this
jury?”
Dr. Lunde: “No.”
83
Prosecutor: “And you’re not saying that he didn’t murder some other
people?”
Dr. Lunde: “It’s possible.”
Prosecutor: “Whatever your words were?”
Lunde: “Right.”
Defendant asserts that the prosecutor’s third question, picking up
Dr. Lunde’s words “some other people,” was highly prejudicial because it would
have suggested to the jury that defendant had killed people other than the four the
penalty phase jury knew about in this case: Weber, Duarte, Abono, and Geraldine
Sapp, defendant’s mother.
The second instance of challenged prosecutor questioning pertains to
defense witness Richard See, who was vice-principal of Clayton Valley High
School when defendant was there at age 17. On direct examination, See
mentioned that because defendant attended the school only briefly, he could recall
“[j]ust one incident” involving defendant. On cross-examination, the prosecutor
questioned See about the “one incident,” and elicited testimony that “[l]aw
enforcement [had] responded” to it, that defendant thereafter did not return to
school, and that defendant “was a disciplinary problem.”
The incident in question involved school officials’ discovery of defendant
and a female student behind the baseball field, both partially undressed, in
possession of a controlled substance, and under the influence of some substance.
The prosecution had sought to include this incident in its penalty phase case-in-
chief, but the trial court ruled it inadmissible as not fitting within any category of
aggravating evidence. Defendant argues here that the prosecutor’s questioning of
See about the incident violated the trial court’s express ruling, and also would
have suggested to the jury (which never learned the specifics of the incident) that
defendant had committed some serious crime at age 17.
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Finally, defendant faults the prosecutor’s cross-examination of Contra
Costa County Probation Officer Thomas Bradshaw, who supervised the juvenile
probation of defendant’s brother, Danny. Bradshaw testified on direct
examination about Geraldine Sapp’s rancorous behavior. Because of that
behavior, Bradshaw had removed himself from Danny Sapp’s case, the only time
he had taken such action in 32 years as a probation officer. Also on direct
examination, Bradshaw mentioned that he had on three occasions supervised
defendant on probation, and that the last of these was when defendant was
committed to the California Youth Authority.
The prosecution’s cross-examination of Bradshaw revealed that defendant
had a lengthy juvenile probation file and that he had “bombed out of Boys’
Ranch.” Defendant asserts that this impermissibly invited the penalty phase jury
to take into account that defendant’s criminal history started when he was quite
young.
Defendant further contends defense counsel was ineffective in failing to
object to the above described questioning by the prosecutor of defense witnesses
Lunde, See, and Bradshaw; in failing to warn See not to mention the Clayton
Valley High School incident; and in failing to warn Bradshaw not to mention
having been defendant’s probation officer.
We are satisfied that defendant suffered no prejudice from the complained-
of cross-examination. In light of the guilt phase evidence of defendant’s cold-
blooded murders of victims Weber, Duarte, and Abono, committed over more than
a 10-year period, and the penalty phase evidence of defendant’s murder of his
mother, his shotgun blasts in the face of Al Redenius, and his death threats to and
admissions of intending to murder Donna Smith, it is neither reasonably possible
(People v. Jackson, supra, 13 Cal.4th at p. 1232) nor reasonably probable
(Strickland v. Washington, supra, 466 U.S. at p. 669) that the penalty phase jury
85
would have reached a different verdict had it not heard the particular interchanges
between the prosecutor and the three defense witnesses in question.
F. Evidence Suggesting Defendant Posed a Danger While Incarcerated
Again claiming violations of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution, defendant challenges certain testimony
admitted during the prosecutor’s redirect examination of two law enforcement
witnesses, former Concord Police Officer James Blackburn and Contra Costa
County Deputy Sheriff Mike Dahlstrom. These contentions are not preserved for
appeal because defense counsel did not object on federal constitutional grounds,
raising only state law objections.
Officer Blackburn testified on direct examination that 20 years earlier, in
1971, defendant at age 18 was in possession of an illegal weapon, a sawed-off
shotgun. Cross-examination by defense counsel established that Blackburn, who
by the time of trial was living in Wyoming, had been reluctant to talk to defense
investigators. Outside the jury’s presence, Blackburn explained that when first
contacted by the defense, he had cooperated, but he later refused to do so out of
fear for harm to his family. Defense counsel argued that evidence of Blackburn’s
reasons for not cooperating would be more prejudicial than probative (Evid. Code,
§ 352), but the trial court ruled Blackburn’s explanation admissible to “counteract
any implications that were raised by the suggestion that he wouldn’t talk to the
defense.” Back before the jury, the prosecutor asked Blackburn why he had been
“reluctant to talk to the defense,” Blackburn testified: “[B]ecause I feared
basically for my family’s life.” No further explanation was given.
Defendant contends that the admission of the Blackburn explanation was
reversible error. He further contends that defense counsel was ineffective in
opening up the issue of Blackburn’s reluctance to assist the defense. Defendant
86
argues that counsel should have known that Blackburn and defendant had a
“history.”
The other law enforcement witness, Deputy Sheriff Dahlstrom, testified on
direct examination he overheard defendant telling another inmate that the jail
guards had found a shank in defendant’s cell, and that it belonged to defendant.
On cross-examination, defense counsel established that shanks were not
uncommon in county jail, that defendant had not assaulted custodial staff or
others, and that because defendant was housed in the county jail’s administrative
segregation unit, he was, like the other inmates in that unit, moved to a different
cell every few days. On redirect, the prosecutor asked Dahlstrom if defendant was
“finally transferred to another institution” after the guards found the shank.
Defense counsel objected on relevance grounds, but the trial court overruled the
objection.” Deputy Dahlstrom then responded “Yes” to the prosecutor’s question,
adding that defendant was deemed “too dangerous for our facility,” and thus was
moved “per the Penal Code . . . to San Quentin Adjustment Center.”
Defendant characterizes Deputy Dahlstrom’s answer as impermissible
evidence of defendant’s future dangerousness. (See People v. Murtishaw (1981)
29 Cal.3d 733, 773 [“One can imagine few matters more prejudicial at the penalty
trial than testimony . . . that defendant, if sentenced to life without possibility of
parole, would be likely to kill again.”].) He further asserts that the prosecutor, by
asking whether defendant was “finally” transferred to another facility, improperly
suggested to the jury that defendant had a history of disciplinary problems in jail.
Additionally, he faults counsel for not objecting to the question.
Assuming that it was error to allow the testimony of Officer Blackburn
about fearing harm to his family, and the testimony of Deputy Dahlstrom that for
safety reasons defendant was moved from county jail to San Quentin Prison, the
errors were harmless. Defendant argues that this evidence went to the heart of the
87
jury’s penalty phase decision because it suggested that defendant posed a risk to
others if sentenced to prison for life without possibility of parole. Defendant
asserts that the jury would have understood fear by Officer Blackburn, who lived
far away in Wyoming, to mean that defendant had the ability to exact vengeance
even though incarcerated; and that the jury would have understood defendant’s
pretrial removal to San Quentin Prison, as described by Deputy Dahlstrom, to
mean that defendant’s possession of a common jailhouse weapon, a homemade
knife, posed a unique danger to other jail inmates and to staff.
Maybe so. But the defense effectively countered any suggestion of
defendant’s future dangerousness through the expert opinion testimony of former
California Department of Corrections Director Raymond Procunier that defendant,
if sentenced to life without parole, would “behave himself” and “not cause . . . any
problems.” Moreover, evidence of Blackburn’s fear of defendant and of
defendant’s pretrial removal to San Quentin added little to defendant’s life of
violence of which the jury was already aware. Therefore, it is neither reasonably
possible (People v. Jackson, supra, 13 Cal.4th at p. 1232) nor reasonably probable
(Strickland v. Washington, supra, 466 U.S. at p. 669) that the testimony by Officer
Blackburn and Deputy Dahlstrom altered the jury’s penalty verdict.
G. Prosecutor’s Argument
Again claiming infringement of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the federal Constitution, defendant cites these comments by the
prosecutor in argument: “[L]est there be any misunderstanding or any suggestion
to the contrary anywhere along the line, I believe there is but one appropriate
decision in this case”; “[Y]ou will have to look a lot further and harder than I have
been able to see to find that [defendant] is deserving of your mercy, or any of our
mercy”; and “[This is] by far the most egregious case that this county has ever
seen.” Defendant contends these comments improperly stated the prosecutor’s
88
personal beliefs (see People v. Ghent (1987) 43 Cal.3d 739, 772), and would have
been understood by the jury as based on facts outside the evidence (see People v.
Bain (1971) 5 Cal.3d 839, 848). He concedes that trial counsel did not object to
the comments, but he asserts that no such objection was required because an
admonition by the trial court would only “compound” the prejudicial effect of the
comments. In the alternative, defendant asserts that defense counsel was
ineffective in not objecting. We disagree.
As we have repeatedly held, a claim of prosecutorial comment generally
requires an objection. (People v. Earp, supra, 20 Cal.4th at p. 858; People v.
Price, supra, 1 Cal.4th at p. 447.) The rule is not otherwise when the claim
challenges comments in a prosecutor’s jury argument. (People v. Benson (1990)
52 Cal.3d 754, 795.) In any event, the prosecutor’s comments were not improper.
In People v. Benson, where the prosecutor argued that the crime in that case was
“perhaps the most brutal, atrocious, heinous crime . . . probably in this County
[Santa Barbara], and very likely in this State,” we concluded that “a reasonable
juror” would have understood the prosecutor’s comments as “obvious and
altogether unobjectionable” expressions of “the People’s position that defendant’s
crimes called for the ultimate sanction.” (Id. at pp. 794-795.) So too here.
H. Defendant’s Letter to Michael Weber
Defendant seeks reversal of the death judgment based on three sentences in
a letter defendant wrote to Weber’s brother Michael. At the guilt phase, Michael
Weber read the letter to the jury, and the letter itself was admitted in evidence.
During guilt phase deliberations, the jury asked to see the letter, and the trial court
granted that request. At the close of the penalty phase, the trial court instructed
under CALJIC No. 8.85 that jurors in penalty phase deliberations could consider
all evidence presented at both phases of the trial unless otherwise instructed. The
court did not instruct jurors to disregard defendant’s letter to Michael Weber.
89
Defendant’s letter to Michael Weber, quoted in full on pages 3-4, ante,
stated that defendant’s role in the Weber killing was as a “tool” used by “other
people.” The three sentences defendant now objects to are these: “After I’m
executed or if I am executed those ‘other people’ will still be out there.
Sometimes I wish they would be executed right along beside me. They deserve it
also in my opinion.” (Italics added.)
Defendant contends that the three sentences conveyed to penalty phase
jurors that defendant thought he deserved to die for Weber’s murder. This, he
asserts, violated the federal Constitution’s Fifth, Eighth, and Fourteenth
Amendments in addition to California law because a capital defendant’s “opinion
regarding the appropriate penalty” for his crimes “[is] irrelevant to the jury’s
penalty decision.” (People v. Danielson (1992) 3 Cal.4th 691, 715; see Johnson v.
Mississippi (1988) 486 U.S. 578, 585.) Defendant also claims a violation of the
Sixth Amendment right to effective assistance of trial counsel because his lawyers
failed to object to the jury’s hearing and seeing the three sentences in the letter.
According to defendant, the three sentences “prejudicially skewed the penalty
determination,” which he asserts was close because the jury deciding penalty
“struggled for three days.”
Because there was no objection to permitting penalty phase consideration
of the three sentences in defendant’s letter to Weber, the issue of trial court error
has not been preserved. In any event, it lacks merit as does defendant’s claim of
ineffective assistance of trial counsel. Only a strained reading of the quoted
passage, overemphasizing the word “also,” might support an inference that
defendant thought everyone responsible for the Weber killing deserved the death
penalty. The gist of the entire letter, however, was a threat to Michael Weber that
notwithstanding that defendant was in custody and could be executed, “other
people” responsible for his brother’s murder “will still be out there.” Considered
90
in that context, jurors would have understood that phrase to mean that those other
people shared with defendant equal responsibility for killing Weber, not that
defendant, who by presenting a substantial case in mitigation was actively fighting
a death verdict, truly believed that he deserved to die.
I. Penalty Phase Instruction
1. Consideration of unadjudicated crimes
In
People v. Johnson (1993) 6 Cal.4th 1, we held that the trial court at the
penalty phase had no obligation to instruct the jury, without request, that it “should
not use the ‘inference of criminal propensity drawn from proof of one incident of
unadjudicated conduct as proof of the truth of the allegations of another such
incident.’ ” (Id. at p. 49.) We explained that a trial court, as a general rule, “owes
no obligation to instruct on the limited purposes for which evidence of prior
crimes is admissible.” (Ibid.) We rejected the defendant’s contention that this
general rule should not apply to the penalty phase of a capital trial in light of the
trial court’s instruction “that (1) evidence of various specified criminal acts had
been presented, (2) before the jury could use evidence of any such offense as an
aggravating circumstance, it must find beyond a reasonable doubt that such
offense occurred, and (3) except for such offenses, the jury ‘may not consider any
evidence of any other criminal acts as an aggravating circumstance.’ ” (Id. at
pp. 49-50.)
Here, the trial court’s instruction to the jury was substantially similar to the
one at issue in People v. Johnson, supra, 6 Cal.4th 1.4 Defendant seeks to
4
In accord with CALJIC No. 8.87 (1989 rev.) (5th ed. 1988), the trial court
instructed the jury on the unadjudicated criminal offenses: “Evidence has been
introduced for the purpose of showing that the defendant has committed the
following criminal acts or activity: The attempted murder of Donna Smith[;] The
attempted murder of Al Redenius[;] The murder of Geraldine Sapp[;] possession
(Fn. continued on next page)
91
distinguish Johnson on the ground that it addressed only the use of unadjudicated
criminal offenses to show criminal propensity but not the use of adjudicated
criminal offenses for that purpose. Defendant observes that the jury had already
convicted him of the first degree murders of Weber, Duarte, and Abono. He
suggests that without a limiting instruction, the jury may well have considered
evidence of his commission of those murders as showing his propensity to commit
murders, in determining whether he had committed the unadjudicated murder of
his mother and attempted murders of Al Redenius and Donna Smith. He points to
the prosecutor’s argument to the jury comparing defendant’s behavior in the
adjudicated murders with his behavior in the unadjudicated murder of his mother.
For instance, the prosecutor argued that lying about the death was “typical” of
defendant. “[A]s he has done with Liz Duarte and others, [defendant] started
fabricating his defense, creating something out of nothing.” And the prosecutor
pointed out that like other murders committed by defendant, the murder of his
mother had a financial motive because he owed his mother over $60,000.
In addition, defendant faults trial counsel for not seeking a limiting
instruction and for not objecting to the prosecutor’s comparison of the adjudicated
(Fn. continued from previous page)
of a shank in a county jail[;] possession of a sawed-off shotgun which involved the
express or implied use of force or violence or the threat of force or violence.
Before a juror may consider any of such criminal acts or activity as an aggravating
circumstance in this case, a juror must first be satisfied beyond a reasonable doubt
that the defendant did in fact commit such criminal acts or activity. A juror may
not consider any evidence of any other criminal acts or activity as an aggravating
circumstance. It is not necessary for all jurors to agree. If any juror is convinced
beyond a reasonable doubt that such criminal activity occurred, that juror may
consider that activity as a fact in aggravation. If a juror is not so convinced, that
juror must not consider that evidence for any purpose.”
92
offenses to the unadjudicated offenses. According to defendant, when considered
together, the absence of a limiting instruction, the prosecutor’s arguments, and
defense counsel’s failings violated the federal Constitution’s Fifth, Sixth, Eighth,
and Fourteenth Amendments. We reject these contentions.
In
People v. Lang (1989) 49 Cal.3d 991, we held that “in the absence of a
request, the trial court is under no duty to give [a limiting] instruction at the
penalty phase in regard to evidence received at the guilt phase.” (Id. at p. 1039;
accord, People v. Zapien, supra, 4 Cal.4th at p. 993.) Here, with no request, the
trial court had no obligation to instruct the jury not to consider evidence
supporting the adjudicated murders in determining whether defendant had
committed the unadjudicated crimes.
Moreover, Evidence Code section 1101, subdivision (b), allows for the
admission of evidence of other crimes committed by a defendant to show factors
such as motive, intent, identity, or absence of mistake or accident with respect to a
charged crime. The prosecutor’s penalty phase argument, as highlighted by
defendant, focused on aspects of the killings of Weber and Duarte that bore a
substantial similarity to the killing of defendant’s mother: In each instance,
defendant was motivated by financial gain and immediately set out to create a
false alibi. Because the jury properly could consider the adjudicated murders for
such purposes in determining whether defendant had committed the unadjudicated
crimes, no limiting instruction on propensity evidence was warranted, and defense
counsel thus cannot be faulted for not requesting one or not objecting to the
prosecutor’s argument.
2. Instruction on unadjudicated crimes
Citing the wording of the instruction quoted in footnote 4, ante, defendant
claims a deprivation of rights guaranteed under the federal Constitution’s Fifth,
Sixth, and Fourteenth Amendments, thus requiring reversal of the death judgment.
93
Specifically, defendant points to the instruction’s listing of the unadjudicated
criminal activity (the attempted murders of Smith and Redenius, the murder of
defendant’s mother, and the possession of a shank in county jail and of a sawed-
off shotgun) followed by the phrase “which involved the express or implied use of
force or violence or the threat of force or violence.” This formulation, according
to defendant, told the jury that each listed instance of unadjudicated criminal
activity actually involved force or violence, and thus “directed [a] verdict on an
essential element of the factor (b) finding.” Defendant concedes that two of the
incidents, the murder of defendant’s mother and the attempted murder of
Redenius, if accepted by the jury, clearly involved force or violence. But he
disputes that his actions toward Smith had “crossed the line into attempted
murder,” and that his possession of a shank in jail or his earlier possession of a
sawed-off shotgun in his home at age 18 involved express or implied use of force
or violence or the threat to use force or violence. We discern no instructional
error.
CALJIC No. 8.87, as given by the trial court, instructed the jury that
“Evidence has been introduced for the purpose of showing” that defendant had
committed the specified unadjudicated criminal acts involving force or violence.
It further said that “[b]efore a juror may consider any of such criminal acts or
activity as an aggravating circumstance, a juror must be satisfied beyond a
reasonable doubt that the defendant did in fact commit such criminal acts or
activity.” In addition, the trial court instructed the jury as follows: “You must not
consider as an aggravating circumstance any evidence or alleged criminal activity
by the defendant which did not involve the use or attempted use of force or
violence or which did not involve the use of threat or implied [sic] to use
violence.”
94
These instructions, considered together, properly told the jurors that they
could consider any of the specified unadjudicated criminal acts as factors in
aggravation only if they found beyond a reasonable doubt that defendant had
committed the act or activity, and that it involved the use or attempted use or
express or implied threat to use force or violence.
3. Constitutionality of CALJIC No. 8.85
At the close of the penalty phase, the trial court instructed in accord with
CALJIC No. 8.85 on the factors under section 190.3 jurors could consider in
deciding the penalty to be imposed.5 Defendant objected to the instruction on
5
“In determining which penalty is to be imposed on the defendant, you . . .
shall consider, take into account and be guided by the following factors, if
applicable. [¶] (a) The circumstances of the crimes of which the defendant was
convicted in the present proceeding and the existence of any special circumstances
found to be true. [¶] (b) The presence or absence of criminal activity by the
defendant, other than crimes for which he has been tried in the present proceeding,
which involved the use or attempted use of force or violence or the express or
implied threat to use force or violence. [¶] (c) The presence or absence of any
prior felony conviction, other than the crimes for which the defendant has been
tried in the present proceedings. [¶] (d) Whether or not the offense committed
while defendant was under the influence of extreme mental or emotional
disturbance. [¶] (e) Whether or not the victim was a participant in the
defendant’s homicidal conduct or consented to the homicidal act. [¶] (f) Whether
or not the offense was committed under circumstances which the defendant
reasonably believed to be a moral justification or extenuation for his conduct. [¶]
(g) Whether or not the defendant acted under extreme duress or under the
substantial domination of another person. [¶] (h) Whether or not at the time of
the offense the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was impaired as
the result of mental disease or defect. [¶] (i) The age of the defendant at the time
of the crime. [¶] (j) Whether or not the defendant was an accomplice to the
offense and his participation in the commission of the offense was relatively
minor. [¶] (k) Any other circumstance which extenuates the gravity of the crime
even though it is not a legal excuse for the crime and any sympathetic or other
aspect of the defendant’s character or record that the defendant offers as a basis for
a sentence less than death, whether or not related to the offense for which he is on
(Fn. continued on next page)
95
three grounds: First, he asked the court to delete as irrelevant to his case any
mention of section 190.3, factors (e) (victim participant in killing), (f) (defendant’s
reasonable belief in moral justification), (g) (defendant under extreme duress or
substantial domination) and (j) (defendant was accomplice and minor participant).
Second, he objected to the “whether or not” formulation in section 190.3, factors
(d) (defendant acted under the influence of extreme mental or emotional
disturbance), (e), (f), (g), (h) (defendant suffered from a mental disease or defect)
and (j). And third, he objected that the instruction failed to tell the jury that
section 190.3, factors (d), (e), (f), (g), (h), (j), and (k) (other extenuating
circumstances) can only be mitigating.
Defendant
contends
this
instruction violated California law as well as the
Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. He
concedes that we have rejected previous challenges to a trial court’s determination
not to delete factors or to delineate which are aggravating and which are
mitigating. (See People v. Dennis (1998) 17 Cal.4th 468, 552; People v. Benson,
supra, 52 Cal.3d at pp. 802-803.) But he argues that the trial court’s refusal to
delete the purportedly irrelevant factors allowed the prosecutor to “go down the
list” and exclaim that it would be “ludicrous” for the jury to find as mitigating
factors that a victim was a participant (§ 190.3, factor (e)), or that defendant’s
participation in the offenses was relatively minor (§ 190.3, factor (j)). Contrary to
defendant’s argument, there was nothing improper in the prosecutor’s comments.
The prosecutor did not, for instance, suggest that the absence of mitigating factors
(Fn. continued from previous page)
trial. You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.” (CALJIC No.
8.85.)
96
was aggravating. (See People v. Davenport (1985) 41 Cal.3d 247, 289.) Rather,
he told the jury that section 190.3, factors (a), (b), and (c) were aggravating, but
that “[i]n mitigation, you can consider all of the rest.” The prosecutor then
suggested that it would be “ludicrous” to find as mitigation in this case victim
participation or defendant playing a relatively minor role. This was fair comment
on the evidence, which included defendant’s contention in his confession that
murder victim Duarte had asked him to shoot her, and defendant’s description in
his letter to Weber’s brother Michael of his own role in killing Weber as a “tool”
of others. Thus, we see no reason to reconsider our holdings in People v. Dennis,
supra, 17 Cal.4th at page 552 and People v. Benson, supra, 52 Cal.3d at pages
802-803.
With respect to the “whether or not” formulation mentioned earlier,
defendant contends it invited the jurors to consider “whichever” of two
possibilities was shown by the evidence, and thus that a juror who found a factor
not proven could use that as a factor favoring imposition of the death penalty.
This is simply a variation of the arguments we rejected in People v. Dennis, supra,
17 Cal.4th 468, 552, and People v. Benson, supra, 52 Cal.4th 754, 802-803, and
we likewise reject it. In any event, here there was no possibility that a juror would
have used an unproven factor as one favoring death because in addition to
instructing on CALJIC No. 8.85, the trial court gave this instruction: “You are not
required to limit your consideration of mitigating circumstances to these specific
factors. [¶] You may also consider any evidence presented during the trial as
reasons for not imposing the death sentence. [¶] You are not permitted to
consider any factor as aggravating unless it is specified on the list of factors you
have been given. [¶] There is, however, no limitation on what factors you may
consider as mitigating. [¶] The absence of a mitigating factor is not and cannot
be considered by you as an aggravating factor.” (Italics added.)
97
In a related argument, defendant claims constitutional error because the jury
would have understood the instruction on section 190.3, factor (d) as precluding
juror consideration of evidence of defendant’s mental or emotional disturbance
“that was less than extreme.” We have previously rejected this contention
explaining that the instruction under section 190.3, factor (k) allows the jury to
consider “ ‘a mental condition of the defendant which, though perhaps not deemed
“extreme,” nonetheless mitigates the seriousness of the offense.’ ” (People v.
Wright (1990) 52 Cal.3d 367, 443-444, quoting People v. Ghent (1987) 43 Cal.3d
739, 776; accord, People v. Jones (1997) 15 Cal.4th 119, 190.) We therefore do
not reconsider it. In any event, there was no possibility of juror confusion in this
case because of the trial court’s instruction under CALJIC No. 8.85, discussed
above.
J. Cumulative Effect of Any Errors
Defendant
asserts
that
the cumulative effect of errors at the guilt and
penalty phases compels reversal of the death judgment. We disagree. We have
either rejected on the merits defendant’s claims of error or have found any
assumed errors to be nonprejudicial. We reach the same conclusion with respect
to the cumulative effect of any assumed errors.
K. Constitutionality of Death Penalty Statute
Defendant challenges various aspects of California’s capital sentencing
scheme as violating the federal Constitution. We have in previous decisions
rejected essentially these same challenges and decline to reconsider them here.
The law is not unconstitutional because it permits the jury to consider
unadjudicated offenses as aggravating evidence (see People v. Bolin (1998) 18
Cal.4th 297, 335; People v. Samoya (1997) 15 Cal.4th 795, 863), because it fails to
require unanimous jury agreement before consideration of an aggravating factor
(People v. Bolin, supra, at pp. 335-336), or because it does not require jury
98
findings on aggravating factors (People v. Bolden (2002) 29 Cal.4th 515, 566;
People v. Lucero (2000) 23 Cal.4th 692, 741; People v. Fauber (1992) 2 Cal.4th
792, 859). There is no constitutional requirement that aggravating factors be
proven beyond a reasonable doubt, that aggravating factors be proven to outweigh
mitigating factors beyond a reasonable doubt, or that the jury find that death is the
appropriate punishment beyond a reasonable doubt. (People v. Bolden, supra, at
p. 566; People v. Barnett (1998) 17 Cal.4th 1044, 1178; People v. Bradford,
supra, 14 Cal.4th at p. 1059.) “Because 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. (People v.
Hayes (1990) 52 Cal.3d 577, 643; accord, People v. Bemore (2000) 22 Cal.4th
809, 859.) The law is not unconstitutional because prosecutors may select, from
among the class of death-eligible cases, those in which the death penalty will
actually be sought (People v. Crittenden (1994) 9 Cal.4th 83, 152; People v.
Kirkpatrick (1994) 7 Cal.4th 988, 1024), because the law does not presume that
life without parole is the appropriate sentence (People v. Bolden, supra, at p. 566;
People v. Arias (1996) 13 Cal.4th 92, 190), or because this court does not require
intercase proportionality review (People v. Bolden, supra, at p. 566; People v.
Crittenden, supra, at p. 156; People v. Hayes, supra, at p. 645). The law does not
fail to adequately narrow the class of murders for which the death penalty can be
imposed. (People v. Bolden, supra, at p. 566; People v. Barnett, supra, 17 Cal.4th
at p. 1179; People v. Arias, supra, at p. 187.)
99
CONCLUSION
The judgment is affirmed.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
100
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Sapp
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S023628
Date Filed: July 31, 2003
__________________________________________________________________________________
Court: Superior
County: Contra Costa
Judge: Wayne A. Westover
__________________________________________________________________________________
Attorneys for Appellant:
Bruce Eric Cohen, under appointment by the Supreme Court for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Dane R. Gillette, Stan M. Helfman and Christopher W. Grove, Deputy
Attorneys General, for Plaintiff and Respondent.
101
Counsel who argued in Supreme Court (not intended for publication with opinion):
Bruce Eric Cohen
1442-A Walnut Street, PMB #466
Berkeley, CA 94709
(510) 273-9902
Christopher W. Grove
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 703-5967
102
Opinion Information
| Date: | Docket Number: |
| Thu, 07/31/2003 | S023628 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Francisco Office Christopher Grove, Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 2 | Sapp, John (Appellant) Represented by Bruce Eric Cohen Attorney at Law 1442-A Walnut St. Berkeley, CA |
| Disposition | |
| Jul 31 2003 | Opinion: Affirmed |
| Dockets | |
| Oct 16 1991 | Judgment of death |
| Nov 4 1991 | Filed certified copy of Judgment of Death Rendered 10-16-91. |
| Jan 19 1995 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Bruce Eric Cohen, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. |
| Jan 19 1995 | Compensation awarded counsel |
| Feb 1 1995 | Note: Received 8 Boxes of Record Prematurely Forwarded by Contra costa County Clerk. Record returned this Date. |
| Feb 8 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Feb 9 1995 | Extension of Time application Granted To Applt To 4-21-95 To request Corr. of Record. |
| Apr 21 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Apr 25 1995 | Extension of Time application Granted To Applt To 6-20-95 To request Corr. of Record. |
| Jun 19 1995 | Application for Extension of Time filed By Applt to request correction of Record. |
| Jun 20 1995 | Extension of Time application Granted To Applt To 8-21-95 To request Corr. of Record. |
| Jul 14 1995 | Received: copy of appellant's request for correction, for additional record & to examine sealed documents & transcripts (filed 7-13-95 in superior court) (319 pp.) |
| Jul 19 1995 | Compensation awarded counsel |
| Nov 15 1996 | Record on appeal filed C-34 (8,596 Pp.) and R-88 (13,567 Pp.); Clerk's Transcript includes 3,472 pages of Juror Questionnaires. |
| Nov 15 1996 | Appellant's opening brief letter sent, due: 12-26-96. |
| Dec 17 1996 | Application for Extension of Time filed To file Aob. |
| Dec 18 1996 | Extension of Time application Granted To 2-24-97 To file Aob. |
| Jan 14 1997 | Compensation awarded counsel |
| Feb 21 1997 | Application for Extension of Time filed By Applt to file AOB |
| Feb 26 1997 | Extension of Time application Granted To April 25,1997 To file AOB |
| Apr 30 1997 | Application for Extension of Time filed To file Aob. |
| May 1 1997 | Extension of Time application Granted To 6-24-97 To file Aob. |
| Jun 18 1997 | Application for Extension of Time filed To file Aob. |
| Jun 26 1997 | Extension of Time application Granted To 8-25-97 To file Aob. |
| Aug 21 1997 | Application for Extension of Time filed To file Aob. |
| Aug 25 1997 | Extension of Time application Granted To 10-24-97 To file Aob. |
| Oct 22 1997 | Application for Extension of Time filed By Applt to file AOB |
| Oct 28 1997 | Extension of Time application Granted To November 24,1997 To file AOB |
| Nov 20 1997 | Application for Extension of Time filed To file Aob. |
| Nov 24 1997 | Extension of Time application Granted To 1-23-98 To file Aob. |
| Jan 16 1998 | Application for Extension of Time filed By Applt to file AOB |
| Jan 21 1998 | Extension of Time application Granted To March 24,1998 To file AOB |
| Mar 18 1998 | Application for Extension of Time filed To file Aob. |
| Mar 20 1998 | Extension of Time application Granted To 4-23-98 To file Aob. |
| Apr 21 1998 | Application for Extension of Time filed To file Aob. |
| Apr 28 1998 | Extension of Time application Granted To 5-26-98 To file AOB |
| May 22 1998 | Application for Extension of Time filed By Applt to file AOB |
| Jun 2 1998 | Extension of Time application Granted To 7-27-98 To file AOB no further Extensions of time Are Contemplated |
| Jul 23 1998 | Application for Extension of Time filed To file Aob. |
| Aug 4 1998 | Extension of Time application Granted To 9-25-98 To file AOB no further Extensions of time will be granted |
| Sep 24 1998 | Application for Extension of Time filed To file AOB |
| Sep 24 1998 | Extension of Time application Denied To file AOB |
| Nov 6 1998 | Compensation awarded counsel |
| Jan 13 1999 | Order filed: Appellant's opening brief shall be filed on or before 2-1-99. If the brief is not filed by that date, the court will consider the issuance of an order directing counsel to show cause before this court, when the matter is ordered on calendar, why counsel for appellant should not be held in contempt of court for the willful neglect of his duty to file the appellant's opening brief. |
| Feb 10 1999 | Filed: Applt's request for Relief from Default to file Aob. |
| Feb 10 1999 | Filed: Applic. for permission to file AOB Exceeding 280 Pp. (brief submitted Under Separate Cover.) |
| Feb 10 1999 | Filed: Confidential Declaration of Atty Bruce Cohen. |
| Feb 11 1999 | Order filed: The request of Applt for Relief from Default to file The AOB Is Granted. The Applic. for Perm. to file an Overlength brief Is Granted. |
| Feb 11 1999 | Appellant's opening brief filed (2 Vols. - 599 Pp.) |
| Feb 19 1999 | Compensation awarded counsel |
| Feb 23 1999 | Received: Replacement pages for Aob. |
| Feb 24 1999 | Filed: Applt's request for Augmentation of the Record. |
| Mar 8 1999 | Application for Extension of Time filed To file Resp's brief. |
| Mar 16 1999 | Extension of Time application Granted To 5-11-99 To file Respondent's brief |
| Apr 14 1999 | Order filed: Appellant's motion to augment the appellate record, filed 2-24-99, is granted. The Court of Appeal, First Appellate District, Divison Four, is directed to make and forward to this court one copy of each of the following documents in the record of Hallissy v. Superior Court (A039773): 1. The reporter's transcript of the municipal court hearing on 9-30-87, in the case of People v. John Sapp (Contra Costa County Co. No. 33597-6). This transcript is lodged as a separately bound exhibit. 2. The reporter's transcript of the municipal court hearing on 10-21-87, in the case of People v. John Sapp (Contra Costa County Co. No. 33597-6). This transcript is lodged as exhibit G of the Appendix to Petitioner's Traverse. 3. The corrected Return (including supporting memorandum) that appellant Sapp, as real party in interest, filed in the Court of Appeal on 1-5-88. 4. This court's order of 11-12-87, granting review and transferring the matter to the Court of Appeal with directions to issue an alternative writ. 5. Any petition for rehearing that appellant Sapp may have filed. |
| May 10 1999 | Application for Extension of Time filed To file Resp's brief. |
| May 12 1999 | Extension of Time application Granted To 7-12-99 To file Resp's brief. |
| May 21 1999 | Motion filed By Resp to Unseal Reporter' Transcript of in Camera Hearing Re: Substitution of Counsel. |
| May 27 1999 | Filed: Letter from Applt, dated 5-22-99, Advising Applt has no Objection to Resp's motion to Unseal R.T. of in Camera Hearing Held on 2-3-89. |
| Jun 23 1999 | Order filed: Respondent's "Request to Unseal Reporter's Transcript of the In-camera Hearing Re: Substitution of Counsel," filed 5-21-99, is granted. The reporter's transcript of the in-camera hearing conducted in this matter on 2-3-89, regarding the substitution of trial counsel for appellant Sapp, is ordered unsealed. |
| Jul 1 1999 | Application for Extension of Time filed To file Resp's brief. |
| Jul 2 1999 | Extension of Time application Granted To 9-10-99 To file Respondent's brief |
| Aug 30 1999 | Application for Extension of Time filed To file Resp's brief |
| Sep 1 1999 | Extension of Time application Granted To 10/18/99 To file Resp's brief. |
| Oct 18 1999 | Filed: Appl. for Leave to file Oversized Resp's brief. (Resp's brief submitted Under Separate Cover) |
| Oct 19 1999 | Order filed: Resp's Appl. for Leave to file Resp's brief in Excess of 280 pages Is Granted. |
| Oct 19 1999 | Respondent's brief filed (325 Pps.) |
| Oct 21 1999 | Filed: Resp's request for Judicial Notice. |
| Oct 29 1999 | Filed: Applt's Objection to State's request for Judicial Notice. |
| Nov 3 1999 | Application for Extension of Time filed To file reply brief. |
| Nov 4 1999 | Extension of Time application Granted T0 1/7/2000 to file reply brief. |
| Dec 27 1999 | Application for Extension of Time filed To file reply brief. |
| Dec 30 1999 | Extension of Time application Granted To 3/8/2000 To file reply brief. |
| Mar 2 2000 | Application for Extension of Time filed To file reply brief. |
| Mar 6 2000 | Extension of Time application Granted To 5/8/2000 To file reply brief. |
| May 2 2000 | Application for Extension of Time filed To file reply brief. |
| May 4 2000 | Extension of Time application Granted To 7/7/2000 To file reply brief. |
| Jul 3 2000 | Application for Extension of Time filed to file reply brief. |
| Jul 11 2000 | Extension of Time application Granted To 9/5/2000 to file reply brief. |
| Sep 1 2000 | Application for Extension of Time filed to file reply brief. (6th request) |
| Sep 8 2000 | Extension of Time application Granted To 11/6/2000 to file reply brief. No further ext. of time are contemplated. |
| Oct 10 2000 | Counsel's status report received (confidential) |
| Nov 2 2000 | Application for Extension of Time filed To file reply brief. (7th request) |
| Nov 3 2000 | Extension of Time application Granted To 1/5/2001 to file reply brief. No further ext. of time will be granted. |
| Jan 2 2001 | Application for Extension of Time filed To file reply brief. |
| Jan 8 2001 | Extension of Time application Denied To file reply brief. |
| Jan 22 2001 | Counsel's status report received (confidential) |
| Jan 31 2001 | Application for relief from default filed To file reply brief. (reply brief submitted under separate cover) |
| Feb 5 2001 | Order filed: Applt's application for relief from default to file applt's reply brief is granted. |
| Feb 5 2001 | Appellant's reply brief filed (112 pages) |
| Feb 22 2001 | Compensation awarded counsel Atty Cohen |
| May 3 2001 | Compensation awarded counsel Atty Cohen |
| Jun 15 2001 | Counsel's status report received (confidential) |
| Oct 9 2001 | Counsel's status report received (confidential) |
| Oct 12 2001 | Counsel's status report received (confidential) |
| Nov 13 2001 | Compensation awarded counsel Atty Cohen |
| Feb 13 2002 | Counsel's status report received (confidential) |
| May 10 2002 | Counsel's status report received (confidential) |
| Sep 17 2002 | Counsel's status report received (confidential) from atty Cohen. |
| Mar 11 2003 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the May calendars, to be held in S.F. the week of May 5 and also the week of May 27, 2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument. |
| Mar 14 2003 | Filed: Request from appellant's counsel that oral argument be scheduled for September calendar. |
| Mar 17 2003 | Filed: Supplemental declaration of service of request that oral argument be placed on the September calendar. |
| Mar 19 2003 | Letter sent to: attorney Cohen advising that in light of the fact that the court has granted an extension of time for filing the AOB in the Solomon case, his request that oral argument be placed on the September calendar rather than on the May calendar is denied. |
| Apr 8 2003 | Received letter from: attorney Cohen (via fax), dated 4-8-2003, advising of his preference that oral argument be placed on the end-of-May calendar. |
| Apr 9 2003 | Case ordered on calendar 5-8-03, 9am, S.F. |
| Apr 17 2003 | Request for judicial notice denied The Attorney General's request for judicial notice filed on 10-21-99, is denied. |
| Apr 22 2003 | Filed letter from: Appellant's counsel, dated 4/19/2003, re focus issues for oral argument and requesting 45 minutes for argument. |
| Apr 22 2003 | Order filed The request of appellant for 45 minutes for oral argument is granted. |
| Apr 25 2003 | Filed letter from: Respondent's counsel, dated 4/25/2003, re focus issues for oral argument. |
| May 8 2003 | Cause argued and submitted |
| Jun 23 2003 | Filed: Notice of change in telephone and fax numbers for appellant's counsel Bruce Cohen. |
| Jul 29 2003 | Received letter from: appellant, dated 7-28-2003, regarding recent decision in People v. Kenneth Ray Neal, S106440. |
| Jul 31 2003 | Opinion filed: Judgment affirmed in full Majority opinion by Kennard, J. ---------joined by George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ. |
| Aug 20 2003 | Rehearing petition filed by appellant. (16 pp. - per rule 40k - petition mailed certified mail on 8/15/2003) |
| Aug 22 2003 | Request for modification of opinion filed by non-party, attorney Jack A. Rauch (by letter dated 8-4-2003). |
| Aug 26 2003 | Time extended to consider modification or rehearing to 10/29/2003, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Oct 15 2003 | Rehearing denied Baxter, J., was recused and did participate. |
| Oct 15 2003 | Opinion modified - no change in judgment |
| Oct 16 2003 | Remittitur issued (AA) |
| Oct 21 2003 | Received: Acknowledgment of receipt of remittitur. |
| Oct 29 2003 | Order filed (150 day statement) |
| Jan 13 2004 | Received: Copy of appellant's cert perition (31 pp.) |
| Jan 20 2004 | Received letter from: U.S.S.C., dated 1/16/2004, advising cert petition filed on 1/16/2004 as No. 03-8427. |
| Jan 21 2004 | Compensation awarded counsel Atty Cohen |
| Mar 22 2004 | Counsel's status report received (confidential) |
| Apr 19 2004 | Received: copy of appellant's reply to state's brief in opposition to cert petition. (4 pp.) |
| May 3 2004 | Certiorari denied by U.S. Supreme Court |
| Aug 23 2004 | Counsel's status report received (confidential) |
| Nov 1 2004 | Counsel's status report received (confidential) |
| Dec 30 2004 | Related habeas corpus petition filed (post-judgment) case no. S130314. |
| Dec 30 2004 | Counsel's status report received (confidential) |
| Jan 5 2005 | Compensation awarded counsel Atty Cohen |
| Feb 6 2007 | Habeas funds request filed (confidential) by Sapp. |
| Jun 13 2007 | Order filed re habeas funds request (confidential) re: request filed on February 6, 2007. |
| Briefs | |
| Feb 11 1999 | Appellant's opening brief filed |
| Oct 19 1999 | Respondent's brief filed |
| Feb 5 2001 | Appellant's reply brief filed |
