Citation 49 Cal. 4th 792, 234 P.3d 501, 112 Cal. Rptr. 3d 244
People v. Solomon
Filed 7/15/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S029011
v.
MORRIS SOLOMON, JR.,
Sacramento County
Defendant and Appellant.
Super. Ct. No. 84641
____________________________________)
A jury convicted defendant Morris Solomon, Jr., of four counts of first
degree murder and two counts of second degree murder, and found true a multiple-
murder special-circumstance allegation.1 It also found him guilty of sexually
assaulting two other victims. On retrial following jury deadlock at the first penalty
trial, a second jury returned a verdict of death.2 This appeal is automatic. We
affirm the judgment.
1 Penal Code sections 187, subdivision (a), 190.2, subdivision (a)(3). Further
statutory references are to the Penal Code, unless otherwise specified.
2 Defendant also was sentenced to an indeterminate term of 30 years to life for the
second degree murders. For the nonfatal sexual assaults, he received a
determinate term of 55 years, plus 10 years for having suffered two serious felony
priors. (§§ 261(2), 286, subd. (c), 288a, subd. (c), 12022, subd. (b), 12022.3, subd.
(a), 667, subd. (a).)
1
I. FACTUAL BACKGROUND
The facts are summarized here for background purposes. Further details and
procedural matters are discussed in connection with defendant‟s specific
contentions.
A. Guilt Phase: Overview of Prosecution’s Case3
In the 10 months between June 1986 and April 1987, Sacramento police
discovered the bodies of seven local prostitutes. All but one were found at homes
where defendant had worked or resided. More than half were buried in shallow,
backyard graves. Nearly all of the women had been bound, two were gagged, and
four were nude or partially clad from the waist down. All were drug users.
After defendant‟s arrest for the murders, three prostitutes reported to police
that defendant had sexually assaulted them. One had been bound and gagged.
Police interviewed defendant multiple times. Both before and after his arrest,
defendant made inconsistent and false statements about his presence and activities
in the places where the bodies were found. He also falsely denied knowing, or
misrepresented the nature of his interactions with, the victims.
3 The defense presented no evidence at the guilt phase of trial.
2
1. The six murders4
a. The first degree murder of Yolanda Johnson
On the morning of June 18, 1986, a 911 call summoned officers to an
abandoned duplex on 4th Avenue in the Oak Park section of Sacramento. They
discovered the decomposing body of 22-year-old Yolanda Johnson in the closet of
the upstairs apartment. There were ligature marks on her neck and wrists, and her
body position suggested her wrists had been bound together behind her back.
Johnson, a prostitute and drug user, was nude from the waist down and there were
semen stains on her thighs. She had sometimes used the abandoned building to
engage in prostitution. The day before Johnson‟s body was found, defendant told
several people he was looking for her.
An autopsy showed Johnson had died one to four days earlier. Due to
decomposition, the pathologist was unable to determine the exact cause of death.
But he opined Johnson could have died from either drug toxicity or strangulation.
ABO blood grouping tests showed defendant could have been the source of the
semen stains on Johnson‟s thighs.
b. The first degree murder of Maria Apodaca
On March 19, 1987, workers digging a ditch in the backyard of an abandoned
house on 19th Avenue in South Sacramento unearthed the body of 18-year-old
Maria Apodaca. The victim was a heroin addict and prostitute who had been
missing for several months.
4 The prosecution charged defendant with murdering Angela Polidore, whose
body was discovered on July 20, 1986, in the basement of an abandoned house on
Sacramento Avenue. Polidore was unclothed from the waist down and her wrists
had been bound behind her back with electrical wire. Two athletic socks stuffed
inside her mouth had been tied in place with a fabric binding that circled her head.
The jury deadlocked on that count, the court declared a mistrial, and the charge
was eventually dismissed.
3
Apodaca was buried at a depth of about three feet, under a piece of plywood
covered with dirt. Her clothed body was bound in a fetal position; a cloth belt
held her wrists behind her knees. The body was wrapped in a bed sheet enveloped
by black plastic.
The body was badly decomposed. The pathologist estimated death had
occurred two to eight months earlier. The cause of death could not be determined,
but dark discoloration around Apodaca‟s neck suggested asphyxia from
suffocation or from a broad-width ligature.
c. The second degree murder of Cherie Washington
On April 20, 1987, one month after the discovery of Apodaca‟s body, police
detectives investigating defendant‟s possible involvement in that murder visited
his former residence on 44th Street in Oak Park. An unusual depression in the
backyard yielded the body of 26-year-old Cherie Washington from a shallow
grave. She was nude from the waist down, but had not been bound or wrapped in
a covering. Washington was a rock cocaine addict who sometimes engaged in
prostitution to support her habit. Neighbors recalled seeing her several times
standing at the front door of the house where her body was recovered.
Again, advanced decomposition precluded an exact determination of the date
or cause of death. The pathologist estimated she died between three and nine
months earlier, possibly of positional asphyxia, strangulation with a soft, wide
ligature, or cocaine overdose.
d. The second degree murder of Linda Vitela
On April 22, 1987, two days after Washington‟s body was unearthed, the
body of 24-year-old Linda Vitela was recovered from a shallow grave in the
backyard of an uninhabited residence on Broadway in Oak Park. Vitela‟s body
4
was fully clothed and wrapped in a blanket tied with electrical wire in several
places. Vitela was a prostitute and a heroin addict.
An autopsy disclosed Vitela had died approximately one year before her
body was discovered. Although decomposition precluded a determination of the
cause of death, the pathologist could not exclude the possibility of asphyxia or a
fatal intoxication with drugs or alcohol.
e. The first degree murder of Sheila Jacox
Also on April 22, 1987, police found the body of 17-year-old Sheila Jacox in
a second shallow grave in the Broadway backyard. Jacox‟s nude body was
wrapped in bedding secured by duct tape. Duct tape had also been used to bind
her body from the waist down and to hold a balled-up sock inside her mouth.
Jacox was a prostitute and narcotics user.
The decomposition of Jacox‟s body was even more pronounced than that of
Vitela‟s. However, a forensic anthropologist estimated that Jacox had been dead
“about a year.” Although the pathologist who performed the autopsy reported the
cause of Jacox‟s death as “undetermined,” he could not exclude alcohol or drug
overdose, or most forms of asphyxia.
f. The first degree murder of Sharon Massey
On April 28, 1987, police unearthed the body of 29-year-old Sharon Massey
from the same 19th Avenue backyard where Maria Apodaca had been exhumed
the previous month. Massey‟s body was encased in a sheet knotted over her left
shoulder, then covered with a bedspread. Her thighs, legs, and ankles were bound
with a severed electrical cord, and a braided fabric strap held her wrists behind her
back. Draped around her neck was a three-foot-long stereo speaker connector.
Massey‟s upper body was fully clothed, but her panties and jeans were on only the
right leg, and were pulled down to the thigh. A red sock was compacted into her
5
throat, and a second sock protruded from her mouth. Massey had supplemented
her income from a hospital clinic job with prostitution, and she may have been a
crack cocaine user.
The pathologist who performed the autopsy of Massey‟s decomposed,
mummified body estimated she had been dead approximately six months. A cause
of death could not be determined, but asphyxia was not excluded.
2. The nonfatal sexual assaults on other victims
News of defendant‟s arrest prompted two women to report that defendant had
sexually assaulted them. Police later discovered a third sexual assault victim.
Melissa H. was a prostitute with a $300-a-day heroin habit. Although
Melissa had once smoked cocaine with defendant in his car, she had repeatedly
rebuffed his attempts to “date” her, telling him she did not date Black men. In
early June 1986, several weeks before the discovery of Johnson‟s body, defendant
grabbed Melissa by the neck as she entered the back door of the vacant apartment
where she often brought clients. At knifepoint, defendant directed Melissa to
disrobe and get on the bed. He hit her in the face with his fist and a table leg, and
forced her to orally copulate him. After binding Melissa‟s wrists behind her back
with a piece of leather, defendant sodomized, orally copulated, and raped her. At
one point, defendant placed a sock in Melissa‟s mouth, which muffled her
screams. Then, to prevent her from getting up, he tied her feet to the foot of the
bed with an electrical cord that ran up her body and encircled her neck. About
five hours later, defendant fled through the back door when Melissa‟s
boyfriend/pimp started knocking on the doors and windows, yelling for her to
open up. Melissa‟s boyfriend found Melissa wrapped in a quilt, bound, gagged
and bleeding from her nose, mouth, and vaginal area.
6
Sherry H. supported her cocaine addiction with prostitution. One morning in
October 1986, she agreed to “date” defendant for $50 and got into his car. After
arriving at a house on 19th Avenue, Sherry started to remove her sweater. As she
did so, defendant approached her from behind and tried to strangle her with a
shoestring. Sherry frustrated the attempt by slipping her fingers between the
shoelace and her neck and then falling to the ground. After an act of intercourse,
she convinced defendant to take her home. Sherry suffered welts on her neck and
internal hemorrhaging in one eye.5
3. Defendant’s presence in the locations where the bodies were found
Defendant either lived in or worked at each of the locations where the murder
victims were discovered.
In November 1985, defendant was hired to remodel a fire-damaged house on
Broadway. He lived there until June 18, 1986, when he was evicted for failing to
pay rent. The bodies of Linda Vitela and Sheila Jacox were unearthed from the
backyard in April 1987. Vitela was last seen alive in February 1986. Jacox had
been missing since March 20, 1986. After the bodies were discovered,
defendant‟s next-door neighbor told police she saw defendant dig in five places in
the backyard. Defendant had told her he was working on a sewer line and planting
a garden.
5 According to Latonya C., a “pimp” for three prostitutes, she was inside
defendant‟s 44th Street residence on February 2, 1987, when he began strangling
her with a black shoestring wrapped around each hand. The arrival of two girls
interrupted the attack and she was able to flee. The jury deadlocked on charges
defendant sexually assaulted and attempted to murder Latonya, and those counts
were eventually dismissed.
7
In April 1986, while still living on Broadway, defendant was performing
“end work” in the restoration of an abandoned duplex on 4th Avenue. Starting
sometime in May, defendant was the sole worker there, and the only person with
keys. The second and third floors of the building were separately locked, but the
basement was unsecured and frequently inhabited by transients, drug users, and
prostitutes. On June 17, 1986, the building‟s owner arranged to meet defendant at
the site the following morning to discuss the status of the project. However, on
June 18, defendant arrived early at the duplex, unlocked the front door and
entered, and then came outside shouting he had found a corpse inside.
Responding officers found the body of Yolanda Johnson in a closet in the upstairs
apartment. She had been missing for three days.
In August 1986, shortly after defendant‟s eviction from the Broadway
residence, he rented the master bedroom in a house on 19th Avenue. He lived
there until October 23, 1986, when he and the other residents were evicted for
failure to pay rent. The bodies of Maria Apodaca and Sharon Massey were
unearthed from the backyard on March 19, 1987, and April 28, 1987, respectively.
Apodaca was alive as of September 8, 1986, when she was released from custody
following a prostitution arrest. Sharon Massey was last heard from on September
14, 1986.
After leaving the 19th Avenue residence, defendant spent several months
living out of his car near a job site. Then, on December 15, 1986, he and a friend
moved into a vacant house on 44th Street. Defendant‟s mother lived across the
street. At the end of February 1987, defendant and his housemates were evicted.
On April 20, 1987, the body of Cherie Washington was found buried in the
backyard. She was last seen alive on February 6, 1987.
8
4. The investigation
a. Defendant’s prearrest statements
Defendant was questioned by police immediately after the discovery of
Yolanda Johnson‟s body on June 18, 1986. He falsely identified himself as Ernest
Carl Padilla,6 and said he was last inside the building two days earlier, on
Monday, June 16, 1986. Defendant also told police he did not recognize the
victim. But when asked by a television news reporter at the scene if the victim
was a prostitute, as bystanders had suggested, defendant said, “It wouldn‟t be
right . . . to call her a working girl.”
Defendant spoke with police twice more that same day. In the afternoon,
defendant corrected himself, saying he had last been inside the duplex on the
previous Monday, June 9, 1986, not June 16. Later that evening, defendant
provided his true name. He explained he initially had identified himself as his
brother because of several outstanding warrants. Defendant then agreed to talk
with the officers at the police station.
Investigators conducted a taped interview that night. When shown a
photograph of Yolanda Johnson, defendant said he knew her as “Yo Yo,” and had
once “dated” her in a camper parked in front of his Broadway home. He also
indicated she once stole $20 from him. Defendant stated he and Johnson had
never been in the 4th Avenue duplex together, and he had no idea how she ended
up inside the closet. However, Johnson‟s mother reported that Johnson told her
she had “dated” defendant in the houses he was renovating. Over the next few
days, defendant provided fingerprints and a blood sample, and had several brief
telephone conversations with police. No arrest was made.
6 Carl Padilla is defendant‟s brother.
9
Defendant was interviewed again on March 20, 1987. The previous day, the
body of Maria Apodaca was unearthed from the backyard of defendant‟s former
residence on 19th Avenue. When asked where he had lived in the past, defendant
omitted the 19th Avenue house from his list. He admitted having stayed there
only when asked about it directly. Defendant also falsely claimed that he had
moved away from that location in September 1986.
Again, defendant was not arrested.
One month later, in the early afternoon of April 20, 1987, Detective Pane
came to defendant‟s job site to reinterview him. Defendant said he knew Johnson
but had never seen Apodaca before. During the conversation, defendant consented
to a search of a Ford Maverick that he had abandoned in front of his former
residence on 44th Street. Several hours later, while officers searched the car, they
noticed an indentation in the backyard. At that spot, the body of Cherie
Washington was exhumed from a shallow grave. Detective Pane came to
defendant‟s home in the evening and confronted him with the latest discovery.
Defendant claimed he had never done any digging in the backyard of that house,
and insisted he had not killed anyone.
b. Defendant’s postarrest statements
Defendant was finally arrested on April 22, 1987, the same day the long-
buried bodies of Linda Vitela and Sheila Jacox were found in the backyard on
Broadway. During a lengthy custodial interrogation, defendant continued to
maintain his innocence.
Defendant said that Yolanda Johnson frequently visited the Broadway house
when he lived there with a small group of prostitutes. She stole an expensive ring
from him, but he denied being angry about it. However, police learned that
defendant had once remarked to an acquaintance as Johnson walked past them that
10
he was “going to kill that bitch” for her role in the theft of his stereo equipment.
And when asked to explain the presence of his palm print on the closet door where
Johnson‟s body was found, defendant contradicted his earlier account about the
scope of his work in that room.
Defendant repeated his earlier claim that he did not know Maria Apodaca.
But defendant‟s Broadway housemates reported Apodaca had visited defendant
there several times. Defendant also adamantly denied the reports of his friends
and former housemates that the sheet encasing Apodaca‟s body came from
defendant‟s bed. When told his 19th Avenue housemates had also said he did
some digging in the backyard near the location of Apodaca‟s shallow grave,
defendant claimed he did no repair work or landscaping at that residence.
Defendant maintained he had never seen Cherie Washington. But one of his
44th Street neighbors said defendant introduced Washington to her while the three
of them stood in defendant‟s living room. After the introductions, Washington
followed defendant into his bedroom. Defendant also told Detective Pane in a
prearrest interview that he did not dig in the backyard there. After his arrest, he
indicated he once dug in the backyard while replacing 50 feet of sewer line.
As for his activities in the backyard of the 19th Avenue residence, defendant
first told Detective Pane he did some digging when he replaced posts on the back
porch. But he immediately changed course, saying he did no digging whatsoever.
5. Defendant’s interactions with local prostitutes
Evidence at trial showed defendant was a well known figure in Oak Park. He
enjoyed the company of prostitutes both socially and sexually. Defendant told
Detective Pane that prostitutes were “more real [than the] average person.” Some
of Oak Park‟s prostitutes considered defendant a gentle and caring friend who
gave them money and a safe place to stay when they needed it. However,
11
defendant could be rough and intemperate with the prostitutes he “dated,” even
with those who considered him a friend. And he characterized women generally,
and prostitutes specifically, as “bitches, whores and tramps.” Around the time of
the earliest murders, defendant had a short-lived love affair with a prostitute
named Rosella Fuller, who moved into the house on Broadway with a $200-a-day
crack cocaine habit. The relationship led defendant into a costly drug habit of his
own that ruined him financially.
B. Penalty Phase
1. Prosecution evidence
a. Circumstances of the crimes
The jury that decided defendant‟s guilt deadlocked on penalty, and the court
impaneled a new jury for retrial of the penalty phase. To show the circumstances
of the crimes, the prosecution presented its case-in-chief a second time. With
minor departures, the evidence was substantially the same as that presented before.
b. Evidence of defendant’s other violent crimes and prior
convictions
The prosecution presented evidence of violent crimes defendant committed a
decade or more before the capital offenses. All of the incidents involved sexual
assaults of young women, and some of the facts were strikingly similar to
evidence in the capital case.
i. Aggravated assault on Mary K.
Mary K. testified that on September 19, 1969, she was 18 and working as a
street prostitute in Oakland. Around 10:00 p.m., she got into defendant‟s car to
negotiate for sexual services. Defendant drove to a darkened residential street,
paid Mary $10, and orally copulated her. He then demanded his money back.
When Mary refused, defendant held a curved knife to her throat. Mary agreed to
12
give the money back, but then started screaming. As she swung her left leg out of
the car, defendant cut her right thigh with the knife. The injury required 23
stitches.
ii. Abduction, sexual assault, and robbery of Virginia J.
Virginia J. testified that in January 1971, she was in her early 20‟s and living
in a motel in Oakland. On January 12, as she walked along MacArthur Boulevard
looking for a place to eat, defendant grabbed her from behind, threatened to shoot
her, and forced her into his car. Defendant had propositioned her once before, but
she had told him she was not a prostitute.
Defendant drove Virginia to an isolated area in the Oakland hills to sexually
assault her. En route, Virginia complied with defendant‟s demand to remove her
clothing. After parking the car, defendant ordered her to orally copulate him, and
to lick his anus, testicles, and scrotum, which she did. Defendant unsuccessfully
attempted to sodomize her, then raped her. Afterwards, he inserted his fingers into
her vagina, put his fingers into her mouth and ordered her to swallow. When she
refused, he punched and pulled at her nipples. He then kicked her out of the car
and drove off with her jewelry and clothes.
iii. Abduction and assault on Dale W.
In May 1971, Dale W. was a student at Alameda Junior College. On May 17,
she studied on campus at the University of California, Berkeley, until the library
closed at 10:00 p.m. As she walked down Telegraph Avenue hoping to hitch a
ride home to downtown Oakland, defendant pulled up and offered her a lift. She
got into the car, but defendant drove to the freeway and headed in the opposite
direction. He told Dale he wanted to have sex with her and would not harm her if
she cooperated. He then grabbed her hair and held her head back over the seat so
she could not see where they were going.
13
Defendant pulled off onto a dirt road. While Dale fought and clawed at him,
she managed to pull the key out of the ignition and throw it out the window. She
fled from the moving car, but defendant gave chase and overtook her. He knocked
her to the ground and kicked her face, then ran back to the car to stop it from
rolling away. Defendant was later convicted of assault to commit rape. (§ 220.)
iv. False imprisonment and sexual assault on Connie S.
Connie S. testified that on October 18, 1975, she did a “guest spot”
performance as a topless dancer in a San Jose club. Around midnight, defendant
agreed to pay her for sex and they went to defendant‟s trailer across the street.
Defendant paid Connie $25 and they had intercourse. As Connie was dressing to
leave, defendant came up from behind and pulled a chain around her neck, saying,
“Are you ready to die bitch?” She lost consciousness. When Connie came to,
defendant urinated on her face. He then wrapped her hands together with tape,
positioned her knees between her arms, and bound her ankles. Defendant hoisted
Connie onto the bed and forced her to orally copulate him. He then left in her car.
When defendant returned 30 minutes later, he removed Connie‟s bindings and
raped her four or five times over the course of the night.
Before defendant left in the morning, he taped Connie‟s legs to a chair and
wired her hands together behind her back. He then brought his Doberman
pinscher into the room and warned Connie that if she moved, the dog would attack
her. The dog remained seated as Connie managed to free her hands and ankles,
however, and she fled to the trailer next door to call police. Two years later,
defendant was convicted of aggravated assault and false imprisonment.
(§§ 245, subd. (a), 236.)
14
v. Assault on Darlene G.
In December 1976, 18-year-old Darlene G. was living with her mother in
Sacramento. She testified that around 8:00 p.m. on December 6, she left her home
and walked down Stockton Boulevard. Defendant came up from behind, choked
her into unconsciousness, and dragged her into a car. He then hauled her into a
house located a short distance away.7
When Darlene regained consciousness, she was nude from the waist down.
Defendant placed her in a closet, where he bound her hands together behind her
back and tied them to her feet using rope and shoelaces. He then hit her with a fan
belt and whipped her in the face with his penis, threatening to ejaculate on her.
Darlene spent the entire night in the closet while defendant slept in the adjoining
room. In the morning, she heard a woman knock on the bedroom door and tell
“Junior” to get up for work. Before leaving the house, defendant secured
Darlene‟s bindings and said he would kill her if she removed them. Darlene
nevertheless managed to untie her feet and made her way to the gas stove to burn
off the bindings on her wrists. Defendant returned to the house just as Darlene
finished dressing. She escaped by brandishing a knife and ran the two blocks to
her mother‟s home. Four months later, defendant was convicted of assault with
intent to rape and false imprisonment. (§§ 220, 236.)
vi. Grand theft
In 1984, defendant was convicted of three counts of grand theft in Arizona.
7 The house was on 44th Street. The parties stipulated that defendant lived at the
house and that it was neither his mother‟s home, nor the house he lived in 10 years
later.
15
2. Defense evidence
The defense presented an extensive case in mitigation. Eighteen witnesses
testified over the course of seven days. The defense case largely attempted to
show that defendant‟s crimes stemmed from psychopathology born of the
relentless humiliation, abuse, and violence he experienced during his formative
years, compounded by his tour of duty in Vietnam and fueled by cocaine use.
a. Defendant’s early childhood
Relatives and friends described defendant‟s upbringing in rural Georgia as
frightful and abusive. In 1945, when defendant was an infant, his parents moved
in with defendant‟s grandmother Bertha and other family members. Bertha and
the adults in the house constantly fought with one another, both verbally and
physically. At one point, defendant‟s parents moved away, leaving him and his
older brother behind. Bertha beat the children daily for infractions such as wetting
themselves, mispronouncing words, or crying during a beating. Sometimes, she
hit them for no apparent reason. When defendant was very young, Bertha beat
him by laying him over her lap and hitting him repeatedly. When he got older,
Bertha punished him the same way she did the other children in the household:
She made defendant remove all his clothing and stand on a stool in the corner,
where she beat his bare body, including his genitalia, with an electrical cord or
switches she made him bring to her. Bertha sometimes beat defendant until he
bled. Once, she tied his hands around the pole of a bed with an extension cord to
keep him from backing away from her during a beating.
Defendant had little contact with his parents for the first 13 years of his life.
He was reunited with them when Bertha and the family moved to Isleton, a small
farming town 40 miles from Sacramento. They were among a handful of Black
families living in a poor, rundown section of the town known as “Cannery Row”
or “Tinpan Alley.” Defendant‟s parents frequently beat and sexually assaulted one
16
another in front of him. His mother and grandmother often beat him and verbally
abused him in public.
b. Adolescence and young adulthood
The defense called a number of witnesses who knew defendant during his
high school years in Isleton. They described defendant as an outgoing, gentle,
normal person. Although he could be “pesty” and sometimes behaved
inappropriately towards girls, he was never violent or aggressive. If defendant‟s
feelings were hurt, he would keep it all inside. Defendant was an average student,
played in the marching band, and competed in track. He invited no one to his
home and never spoke about his parents. But defendant‟s friends knew that his
mother and grandmother were hard on him. They considered defendant‟s mother
a “loose woman,” who regularly “entertained” different men.
Witnesses who knew defendant after high school likewise described him as
kind and outgoing. He attended community college and worked hard at various
jobs, including carpentry, car repair, and bus driving. Defendant was generous
with his money, and showed women affection by buying them presents.
c. Vietnam and its aftermath
Defendant served in Vietnam for one year starting in the summer of 1966.
Defendant‟s platoon sergeant, Carrol Crouse, testified that he and defendant ran
convoys to and from fire bases between their camp and the Cambodian border.
Riding in the convoys was stressful because they were likely to encounter mines
and small arms fire at any time. He considered defendant an outstanding and
trustworthy soldier who saved Crouse‟s life during a mortar attack. Fellow
infantryman Gary Harris served in the same division with defendant. Once,
defendant risked his life to rescue four injured soldiers whose tank had hit a land
mine. Both witnesses testified that Vietnamese prostitutes were cheap and
17
plentiful, even on the front lines, and that defendant used their services. Shad
Meshad, an expert on Vietnam veterans, explained that American military
personnel viewed the prostitutes the same way they saw Vietnamese generally, as
subhuman.
Defendant returned to Isleton after his tour of duty ended in the summer of
1967. He was a changed person, distant, untruthful, and ill-tempered. If
defendant heard a loud noise, he would duck. Around this time, defendant became
engaged to a woman he had known before going to Vietnam. When she broke off
the engagement, defendant was hurt and moved away. He relocated to the San
Francisco Bay Area, married someone else, and fathered a daughter. Defendant
divorced and eventually moved back to Sacramento.
In April 1977, defendant was convicted of sexually assaulting Darlene G.
While at San Quentin State Prison, he was lead inmate in the furniture factory and
drove a forklift in the detergent plant. The plant supervisor testified that defendant
was rated “excellent” and “exceptional” in attitude, work habits, and perseverance.
d. Expert testimony
Three defense experts explained how defendant‟s upbringing, Vietnam
experience, and drug use created the psychopathology that drove him to commit
the crimes.
Clinical forensic psychologist Brad Fisher, Ph.D., testified that defendant‟s
childhood abuse led to the extreme mental, emotional, and behavioral problems
that were strongly linked to his crimes. Even though defendant knew killing was
wrong and did not hurt all of the prostitutes he encountered, he did not have full
control over his behavior. Defendant suffered from a complex mental disorder
involving his relationship to women, which was triggered in certain situations, like
when he was made to feel humiliated.
18
Clinical psychologist John P. Wilson, Ph.D., testified as an expert on stress
and trauma. Like Dr. Fisher, Dr. Wilson said defendant was driven to commit the
crimes by the psychopathology born of his traumatic, abusive childhood. The
chaotic, dysfunctional, and brutal environment traumatized him during his
formative years. The abuse made defendant feel worthless and angry with the
people who abused him. But defendant denied and repressed his experiences and
disassociated himself from the situation.
Dr. Wilson observed that defendant compensated for feeling rejected by
being the “good guy” during high school and college. But his Vietnam experience
reinforced a pattern experienced in childhood. Trauma and extraordinary stressors
occurred daily in a setting where aggression and violence were sanctioned.
Furthermore, defendant engaged in deviant sexual contact with Vietnamese
prostitutes, who were dehumanized by American military personnel.
As Dr. Wilson explained, defendant tried to do what he believed was
expected of him when he first returned from Vietnam. He held down a job,
married, and began to raise a family. But he was a different person after his tour
of duty. Although he did not meet the diagnostic criteria for posttraumatic stress
disorder, he exhibited many of the symptoms, including anger, irritability, and
fiscal irresponsibility. Had the military known in 1967 what it knew about
psychopathology at the time of trial, Dr. Wilson opined, defendant would have
received the kind of treatment he needed. Instead, defendant quit his job, became
involved with prostitutes and began selling drugs.
According to Dr. Wilson, beginning with the sexual assaults in 1969 and
1971, defendant could no longer control the psychopathology he previously had
managed to keep in check. Dr. Wilson noted a common pattern to the assaults,
which he characterized as the reenactment of the humiliation, abuse, and sexual
sadism defendant experienced in his formative years. Defendant‟s acts of violence
19
against his victims paralleled what had happened to him as a boy. In defendant‟s
mind, his victims were replacements for Bertha, who had acted out her rage by
humiliating, torturing, and beating him into submission.
The pattern of reenactment escalated in 1986, when defendant‟s use of
cocaine further fueled his psychopathology. In Dr. Wilson‟s view, defendant
harbored a murderous rage. Cocaine use increases paranoia, and diminishes
inhibitions and control. Thus, defendant‟s rage was intensified and he was more
likely to act out in a pathological way.
Leon Marder, M.D., an expert in addiction medicine, also testified about the
effects of cocaine. An individual‟s life experiences are important indicators of
how cocaine will affect him or her. Use of cocaine by mentally disturbed or
unstable persons will worsen their condition. A person with violent tendencies
will be unable to control them while under the influence of cocaine. Moreover,
once the proclivity for violence is elevated, it can remain active long after the drug
itself has left the body. Prior use of cocaine causes hypersensitivity of the nervous
system so that violence can be triggered by stress, anxiety, frustration, and anger.
II. DISCUSSION
A. Guilt Phase Issues
1. Sufficiency of the evidence of premeditation and deliberation
The prosecution charged defendant with seven counts of murder. The jury
found defendant guilty of six murders, four of them in the first degree. Defendant
contends there is insufficient evidence of premeditation and deliberation
supporting the first degree murder convictions.8 To the contrary, the record in this
8 Defendant contends that the prosecution‟s failure to meet its burden of proving
premeditation and deliberation violated his state and federal constitutional rights to
due process, jury trial, and a reliable capital verdict. He invokes the same
(footnote continued on next page)
20
case contains substantial evidence from which a rational jury could find
premeditation and deliberation beyond a reasonable doubt.
Our task in deciding a challenge to the sufficiency of the evidence is a well-
established one. “[W]e review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence — that is,
evidence that is reasonable, credible, and of solid value — from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citations.] In cases in which the People rely primarily on circumstantial
evidence, the standard of review is the same. [Citations.]” (People v. Thomas
(1992) 2 Cal.4th 489, 514.) “ „An appellate court must accept logical inferences
that the jury might have drawn from the evidence even if the court would have
concluded otherwise. [Citations.]‟ ” (People v. Halvorsen (2007) 42 Cal.4th 379,
419.)
(footnote continued from previous page)
constitutional provisions in nearly every other claim raised on appeal. “In most
instances, insofar as defendant raised the issue at all in the trial court, he failed
explicitly to make some or all of the constitutional arguments he now advances.
In each instance, unless otherwise indicated, it appears that either (1) the appellate
claim is of a kind . . . that required no trial court action by the defendant to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that
the trial court‟s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. To that extent, defendant‟s new constitutional arguments are not
forfeited on appeal. [Citations.]” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn.
17.) “No separate constitutional discussion is required, or provided, when
rejection of a claim on the merits necessarily leads to rejection of any
constitutional theory or „gloss‟ raised for the first time here.” (People v. Loker
(2008) 44 Cal.4th 691, 704, fn. 7; People v. Boyer, supra, at p. 441, fn. 17.)
21
The prosecutor‟s sole theory of first degree murder as to all seven murder
counts was willful, deliberate and premeditated murder. (§ 189.) “A verdict of
deliberate and premeditated first degree murder requires more than a showing of
intent to kill. [Citation.] „Deliberation‟ refers to careful weighing of
considerations in forming a course of action; „premeditation‟ means thought over
in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
“ „Premeditation and deliberation can occur in a brief interval. “The test is not
time, but reflection. „Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly.‟ ” ‟ [Citation.]” (People v.
Sanchez (2001) 26 Cal.4th 834, 849; People v. Harris (2008) 43 Cal.4th 1269,
1286-1287.)
People v. Anderson (1968) 70 Cal.2d 15 (Anderson) discusses three types of
evidence commonly shown in cases of premeditated murder: planning activity,
preexisting motive, and manner of killing. (Id. at pp. 26-27.) Drawing on these
three categories of evidence, Anderson provided one framework for reviewing the
sufficiency of the evidence supporting findings of premeditation and deliberation.
In so doing, Anderson’s goal “was to aid reviewing courts in assessing whether the
evidence is supportive of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere unconsidered or rash
impulse.” (People v. Perez (1992) 2 Cal.4th 1117, 1125.) But, as we have often
observed, “Anderson did not purport to establish an exhaustive list that would
exclude all other types and combinations of evidence that could support a finding
of premeditation and deliberation.” (People v. Perez, supra, at p. 1125; People v.
Hovarter (2008) 44 Cal.4th 983, 1019; People v. Steele (2002) 27 Cal.4th 1230,
1249.)
Defendant claims that upholding the first degree murder verdicts under
current precedent violates due process and Eighth Amendment principles. In
22
support, he presents one commentator‟s view that this court‟s frequent reliance on
the “great rapidity” with which thoughts may ripen into a premeditated and
deliberated intent to kill, coupled with our recent “manipulation” of the Anderson
factors, have collapsed any meaningful distinction between first and second degree
murder. (Mounts, Premeditation and Deliberation in California: Returning to a
Distinction Without a Difference (2002) 36 U.S.F. L.Rev. 261, 327-328.) This
argument completely misses the mark. Defendant overlooks a core principle that
has guided appellate courts in assessing the sufficiency of the evidence of
premeditation and deliberation for over 60 years: “The true test is not the duration
of time as much as it is the extent of the reflection.” (People v. Thomas (1945) 25
Cal.2d 880, 900; see People v. Koontz, supra, 27 Cal.4th at p. 1080; People v.
Mayfield (1997) 14 Cal.4th 668, 767.) We have observed that “thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived
at quickly.” (People v. Thomas, supra, at p. 900.) Contrary to defendant‟s
suggestion, a killing resulting from preexisting reflection, of any duration, is
readily distinguishable from a killing based on unconsidered or rash impulse.
(Ibid.)
Defendant‟s argument also overstates the role of the Anderson factors. As
we have explained, Anderson “did not refashion the elements of first degree
murder or alter the substantive law of murder in any way.” (People v. Thomas,
supra, 2 Cal.4th at p. 517; see also People v. Perez, supra, 2 Cal.4th at p. 1125
[Anderson factors are not an exhaustive list of evidence that could support a
finding of premeditation and deliberation; the reviewing court need not accord
them any particular weight].) There is no infirmity, constitutional or otherwise, in
the principles guiding our sufficiency review of the evidence supporting a finding
of premeditation and deliberation.
23
Despite his criticism, defendant invokes the Anderson factors nonetheless,
focusing on the evidence relating to each of the four first degree murder victims
individually. But the inferences of premeditation and deliberation in this case are
reinforced by evidence of the shared characteristics of the six murder victims, the
common circumstances preceding and causing their deaths, and the sheer number
of murders. We discuss this evidence before addressing defendant‟s separate
challenges to each of the first degree murder convictions. (See People v. Diaz
(1992) 3 Cal.4th 495, 529-538 [assessing evidence common to all 12 murder
victims in a case involving numerous deaths occurring under similar, unusual
circumstances].)
a. Evidence of premeditation and deliberation common to all
victims
All six of the murder victims and both of the sexual assault victims were
street prostitutes. Defendant referred to prostitutes as “bitches, whores and
tramps.” He said he treated them “like that because that‟s the way they wanted to
be treated” and “that‟s why they‟re out there. . . . They liked that and they enjoy
it.” Indeed, defendant once related with amusement a time he “fucked the bitch so
far in the ass that she shit on herself.” That every one of defendant‟s victims was a
prostitute, coupled with defendant‟s expressions of enmity towards prostitutes
generally, strongly suggests defendant entertained a motive to sexually brutalize
and then kill them. (People v. Prince (2007) 40 Cal.4th 1179, 1253 [jury could
infer defendant harbored animus against young White women from evidence of
other crimes against similar victims]; People v. Steele, supra, 27 Cal.4th at p. 1250
[strong inference of motive from defendant‟s statement to police he hated women
and evidence he previously killed a young woman similar in appearance to the
victim].) The evidence showed that defendant had thought about this kind of
24
violence outside the immediate circumstances of his crimes and conveyed his
views to others.
All four of the first degree murder victims were bound at the wrists and three
were also bound at the ankles.9 The jury reasonably could infer defendant had
bound the murder victims before killing them, rather than afterwards, from the
evidence of defendant‟s sexual assaults against Melissa H.10 Melissa testified that
defendant bound her wrists behind her and then forcibly sodomized, orally
copulated, and raped her. After the sexual assaults, when Melissa tried to get up,
defendant disabled her by tying her ankles to the foot of the bed with an electrical
cord that ran up her body and encircled her neck. If Melissa moved her legs, the
cord around her neck tightened. Defendant kept Melissa bound in this manner for
five hours, until her pimp arrived unexpectedly and defendant fled the scene.
Having inferred from this evidence that defendant bound his victims before killing
them, the jury reasonably could infer that defendant had ample time to reflect upon
and plan their deaths.11 (People v. Proctor (1992) 4 Cal.4th 499, 529 [after
binding the victim, defendant had a significant period in which to contemplate and
9 Johnson was not bound at the time her body was discovered, but it could be
inferred from evidence of ligature marks and the position of her body that she had
been.
10 Contrary to defendant‟s assertion, the prosecutor did not “concede” during oral
argument that the bodies could have been bound after death to make it easier for
defendant to carry them to the backyard for burial. The record shows the
prosecutor prefaced that remark with the observation that “[t]here‟s no point tying
somebody up after they‟re dead.” In any event, “[i]t is axiomatic that statements
by counsel are not evidence . . . .” (People v. Richardson (2008) 43 Cal.4th 959,
1004.)
11 Neither Vitela nor Washington were bound. Notably, the jury set their murders
at second degree.
25
plan her eventual death].) Defendant asserts that the binding evidence showed he
acted impulsively and spontaneously, rather than pursuant to a preconceived plan,
because the materials he used were close at hand and traceable to him. In People
v. Rowland (1982) 134 Cal.App.3d 1, the appellate court concluded there was
insufficient evidence to support the element of premeditation and deliberation
when the evidence showed the defendant strangled the victim with an electrical
cord he found in the bedroom where the murder occurred. (Id. at p. 8.) In the
Rowland court‟s view, the evidence in that case did not suggest the defendant had
taken “ „thoughtful measures‟ to procure a weapon for use against the victim.”
(Ibid.) Here, by contrast, it reasonably can be inferred from the evidence that
defendant bound his victims in order to disable them and then contemplated and
planned their deaths. That defendant tied his victims with materials that were
close at hand does not preclude the inference that he thereafter considered a course
of action to kill them.
Because the victims‟ bodies were badly decomposed when discovered,
pathologists could not determine the precise cause of death. The experts found,
however, that asphyxiation was a possible cause of death in every case. Their
testimony, coupled with evidence that defendant used ligatures and a gag during
his sexual assaults on the two surviving victims, strongly supports an inference
that defendant asphyxiated each murder victim. From this manner of killing, the
jury reasonably could infer that defendant had time to consider the murderous
nature of his actions. (People v. Bonillas (1989) 48 Cal.3d 757, 792 [“Ligature
strangulation is in its nature a deliberate act”].) Defendant finds it “hard to see
how a juror could have made a constitutionally supportable decision as to how the
death[s] occurred” when the pathologists who examined the victims were unable
to do so. We agree that the manner-of-killing evidence presented at trial was not
definitive. We note, too, that neither expert testified about the length of time it
26
took to render the victims unconscious. Viewed in light of the entire record,
however, the pathologists‟ testimony provided a “reasonable foundation” for an
inference of premeditation and deliberation. (People v. Anderson, supra, 70
Cal.2d at p. 25.) “ „[W]hat the pathologist can say from a laboratory examination
is more limited than what a reasonable trier of fact may find beyond any
reasonable doubt, after considering the evidence as a whole.‟ [Citation.]” (People
v. Thomas, supra, 2 Cal.4th at p. 515.)
Finally, the sheer number of killings, apparently carried out in the same
manner, gives rise to an inescapable inference that most of them were
preconceived and deliberate. As we previously have explained, “the more often
one does something, the more likely that something was intended, and even
premeditated, rather than accidental or spontaneous. Specifically, the more often
one kills, especially under similar circumstances, the more reasonable the
inference the killing was intended and premeditated. [Citations.]” (People v.
Steele, supra, 27 Cal.4th at p. 1244; People v. Rogers (2006) 39 Cal.4th 826, 853.)
Here, the evidence showed defendant killed six prostitutes. Four of them were
bound, most were nude from the waist down, and all may have been asphyxiated.
A reasonable jury could infer that, as to Jacox, Johnson, Apodaca, and Massey,
who were the second, third, fourth, and fifth victims, defendant had engaged in a
preconceived, deliberate plan to sexually brutalize and kill street prostitutes. (See
People v. Prince, supra, 40 Cal.4th at p. 1253 [evidence of five similar murders
supported the inference that defendant went to sixth victim‟s home with a
preconceived plan to kill]; People v. Steele, supra, at pp. 1245, 1250 [inference of
premeditation and deliberation from evidence of planning, motive, and manner of
killing was strengthened by evidence that the defendant previously committed a
similar crime].) Defendant acknowledges the possibility that his memory of
murdering Vitela, the first victim, was part of the careful thought process required
27
for a showing he deliberated the subsequent murders. But he suggests it is “just as
likely” he did not engage in a careful weighing of considerations and that his
victims said or did something to provoke a mindless and overpowering rage. He
also points out that his sexual assault on one of the surviving victims, Sherry H.,
took place after six of the seven murders had been committed. According to
defendant, this evidence shows he was capable of subsequent impulsive,
unpremeditated violence notwithstanding having killed before. Defendant‟s
arguments fail because they misapprehend our role in assessing the sufficiency of
the evidence supporting the verdicts. “ „[I]f the circumstances reasonably justify
the jury‟s findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary finding.‟
[Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)
b. Evidence of premeditation and deliberation pertaining to each
of the first degree murder victims
In addition to the characteristics common to all the crimes, ample evidence of
each crime supports the jury‟s findings.
i. Murder of Sheila Jacox
Defendant asserts he had no prior relationship with Sheila Jacox from which
a motive to kill could be inferred. (People v. Koontz, supra, 27 Cal.4th at p.
1081.) Of course, motive is not an element of the crime (People v. Hillhouse
(2002) 27 Cal.4th 469, 503-504), and a motive to kill a class of people would be
probative even if the selected victim is a stranger (People v. Prince, supra, 40
Cal.4th at p. 1253). Further, several witnesses testified Jacox was introduced to
defendant at the Broadway residence. And regardless of how well defendant knew
Jacox, there was evidence from which the jury reasonably could infer he knew she
was a prostitute. According to one witness, Jacox occasionally solicited “dates”
on Broadway, close to defendant‟s residence.
28
As for planning, the evidence that defendant bound Jacox strongly supports
the inference of a premeditated plan to kill her. As previously discussed, from the
evidence that defendant bound and then sexually assaulted the surviving victim
Melissa H., it could be inferred he bound Jacox before, not after, killing her.
Notably, the evidence showed that the binding was both secure and elaborate.
Jacox was bound with duct tape at the ankles, thighs, legs, and trunk. Duct tape
extending from Jacox‟s face to the back of her head held a balled-up sock inside
her mouth. From this evidence, and taking into account defendant had also bound
three other murder victims, the jury could infer that, once having completely
disabled Jacox, defendant reflected upon and planned her death. Defendant posits
that the bed sheet, duct tape, and sock found with Jacox‟s body were
commonplace items that could have been used in the moment to violently
conclude a bargain for sexual services. His argument in essence asks us to
reweigh the evidence, which is a task we do not perform when assessing the
sufficiency of the evidence on appeal. (People v. Lindberg (2008) 45 Cal.4th 1,
27.)
Expert testimony that Jacox could have died from asphyxia, together with
evidence that five other victims may have been killed under similar circumstances,
supports a conclusion that the murder was deliberate rather than impulsive.
Defendant points out that no potential ligature was found with the body, nor was
there any evidence of strangulation. Furthermore, he contends, no clear evidence
showed the sock found in Jacox‟s mouth would have prevented breathing. Again,
these arguments call on us to improperly reweigh the evidence.
ii. Murder of Yolanda Johnson
The evidence showed additional premeditation in Yolanda Johnson‟s killing.
She was a frequent visitor at defendant‟s home and stole from him. Defendant
29
told Detective Pane during a pretrial interview that Johnson took an expensive
ring. Although he claimed the theft did not bother him, trial testimony suggested
otherwise. Defendant‟s acquaintance, Vernell Dodson, testified that sometime in
March 1986, several months before the murder, Johnson walked past him and
defendant as they sat on the porch of the Broadway house. As she passed by,
defendant remarked, “I‟m going to kill that bitch,” and told Dodson that Johnson
instigated the theft of his stereo equipment. Pamela Suggs, one of the prostitutes
who lived with defendant at the house, testified that on the day before Johnson‟s
body was found, defendant was out looking for her. Suggs initially told Detective
Pane that defendant also said he was “going to kick her fucking ass.”
Defendant acknowledges the quoted testimony. But he argues that Dodson‟s
testimony was not “reasonable, credible, and of solid value,” and thus could not be
relied upon by a reasonable trier of fact, because it was “thoroughly discredited.”
He notes that Dodson did not contact police about defendant‟s statement until one
year after Johnson‟s death, while he was in prison on a parole violation.
Defendant‟s argument is misplaced. It is the task of the jury, not the reviewing
court, to determine the credibility of witnesses. (People v. Guerra, supra, 37
Cal.4th at p. 1129.) As for Suggs‟s testimony that defendant was looking for
Johnson the night before she disappeared, defendant asserts there was nothing in
such evidence from which to conclude defendant was searching for Johnson in
order to kill her, rather than to have sex with her. We reject defendant‟s argument
for two reasons. First, it ignores the testimony relating to Suggs‟s initial report to
police that defendant said he was “going to kick [Johnson‟s] fucking ass.”
Second, we will not reverse a judgment for insufficient evidence simply because
the circumstances reasonably might support a contrary finding. (Ibid.)
Evidence that Johnson had been bound before her death suggests planning.
We note that when police discovered Johnson‟s body, she was not bound. And as
30
defendant correctly notes, the deputy coroner who conducted a cursory
examination of Johnson‟s body at the scene acknowledged during cross-
examination that he did not see definitive ligature marks. However, the officers
who discovered Johnson‟s body did note distinctive ligature marks on her neck
and wrists. The officers further testified that Johnson‟s legs were spread apart but
her feet were touching. Likewise, her hands were very close together and were
pulled out to one side from underneath the body, as if someone had dumped her in
the closet and then pulled off a binding. The jury, as the sole judge of the
witnesses‟ credibility, was entitled to credit the officers‟ testimony and thus to
infer that Johnson had been bound. Further, the pathologist testified that death
could have resulted from asphyxiation by ligature or manual strangulation. There
is ample evidence to support a finding of deliberation and premeditation.
iii. Murder of Maria Apodaca
Like the other five murder victims, Apodaca was a street prostitute.
Defendant points out there was conflicting evidence as to whether he even knew
Apodaca. But it is the jury, not the reviewing court, that resolves conflicts in the
evidence. (People v. Guerra, supra, 37 Cal.4th at p. 1129.) Similarly unavailing
is defendant‟s argument that a witness who stated he had seen Apodaca in
defendant‟s company fabricated his testimony. According to defendant, the
witness‟s trial testimony could not be squared with the account he gave to
Detective Pane, which the jury also heard. But as we have explained, “Resolution
of . . . inconsistencies in the testimony is the exclusive province of the trier of
fact.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Apodaca‟s body was wrapped in a sheet knotted at both ends. Inside the
covering, a rope-like piece of cloth held the body in a fetal position, with both
wrists bound together behind the knees. The binding evidence thus supports the
31
inference that, once having disabled Apodaca, defendant contemplated and
planned her death. The inference is further strengthened by evidence that
defendant bound the three other first degree murder victims at the wrists.
Areas of dark discoloration around Apodaca‟s neck indicated she may have
been asphyxiated, either by suffocation or ligature. Again, the manner of killing
coupled with all the other evidence supports a finding that defendant acted
deliberately, rather than spontaneously, when he killed Apodaca.
iv. Murder of Sharon Massey
Sharon Massey supplemented her hospital clinic salary by engaging in
prostitution. Defendant again asserts there was no evidence he knew Massey. The
record shows otherwise. For instance, defendant‟s former housemate testified that
he once smoked rock cocaine with defendant, Massey, and several others at the
19th Avenue residence.
Massey‟s body was bound into a fetal position with a severed electrical cord
that extended around her back and gathered her thighs, legs, and ankles together.
A braided fabric strap secured her wrists behind her back. A stereo speaker
connector hung loosely around Massey‟s neck and shoulders. This extensive
binding supports an inference that defendant incapacitated Massey, giving him
ample time to consider and plan her death. As before, evidence of the other
killings further supports such an inference.
During Massey‟s autopsy, the pathologist found two socks lodged inside her
mouth, one of which was far back in her throat. In the pathologist‟s view, either
one or both of the socks could have suffocated Massey. He also opined that the
stereo speaker connector draped around Massey‟s neck could have been used to
strangle her. This manner of death, particularly when combined with all the other
evidence, strongly suggests defendant murdered Massey according to a deliberate
32
design. Defendant argues that a killing by asphyxiation is as compatible with an
“explosion of violence” as it is with premeditation and deliberation. But
defendant again misperceives the standard by which we assess the sufficiency of
the evidence. “ „[I]f the circumstances reasonably justify the jury‟s findings, the
judgment may not be reversed simply because the circumstances might also be
reconciled with a contrary finding.‟ [Citation.]” (People v. Guerra, supra, 37
Cal.4th at p. 1129.)
2. Admission of defendant’s postarrest statement
a. Background
Defense counsel argued at an in limine hearing that portions of defendant‟s
taped interviews with police should be excluded as more prejudicial than probative
under Evidence Code section 352.12 The prosecutor agreed that some of the
material, including the references to prior crimes and prison terms, was
inadmissible and offered to edit the tapes for trial. With defense counsel‟s assent,
the court deferred ruling on the admissibility of any specific parts of the taped
interviews until the prosecutor had prepared the version he wanted to present at
trial.
The prosecution called Detective Pane to testify twice during its case-in-
chief. Before the witness was scheduled to take the stand the second time, the
prosecutor informed the court that the parties had not yet conferred on the edited
version of Pane‟s postarrest interviews with defendant, which the prosecutor
intended to present during Pane‟s testimony. Defense counsel assured the court he
12 Evidence Code section 352 provides, “The court in its discretion may exclude
evidence if 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.”
33
would finish reviewing the three-hour tape and meet with the prosecutor before the
next court session. When trial resumed, defense counsel raised no objection to the
admission of the tape.
During the first postarrest interview, Detective Pane asked defendant, “How
many people have you murdered?” Defendant replied, “None. None. N-O-N-E,
sir.” Detective Pane then queried, “How many prostitutes have you strangled?”
Defendant again answered, “None.”
At one point in the second interview, Detective Pane asked defendant if he
had ever sodomized anyone. Defendant replied, “No.” Pane then informed
defendant, “Two girls say you wanted to sodomize [them].” Defendant explained,
“I talk shit to a lot of women like that. It‟s just strictly me talking.” Pane again
asked defendant whether he had ever strangled anyone. Defendant again denied
having done so, but added, “I know you‟re going to have some girls say I did so.”
Pane said he suspected that defendant had been lying to him, and asked defendant,
“What would you believe if you were in my position?” The following exchange
then occurred:
“Pane:
Okay, all right. So I can assume then — assume because I
have these people saying that — that you lied there, I can
assume that.
“Defendant: Okay, I mean you can assume.
“Pane:
I have this here saying so many people did it. That you lied
there. Is that right?
“Defendant: Okay. You can assume that too.
“Pane:
Yeah, I‟m assuming this. Never strangled girls. And I have
the one here, so I can say you lied. Right?
“Defendant: Okay.
34
“Pane:
So here you‟ve lied three times to me. You‟ve been in every
one of these houses here. So never killed girls, I would think
that that would be a lie.”
b. Discussion
Defendant contends that the court erred in admitting the italicized portion of
his taped postarrest statement to Detective Pane. According to defendant, the jury
would have inferred from the challenged statement defendant‟s tacit
acknowledgment that he had once “strangled a girl” to death. Because evidence of
a defendant‟s propensity to commit murder is highly prejudicial, he argues, its
admission violated Evidence Code section 352 and his right to a fundamentally
fair trial under federal constitutional principles.
Defendant has forfeited his claim of error because defense counsel failed to
object to the admission of the edited version of the taped postarrest statement.
(Evid. Code, § 353, subd. (a).) A motion in limine can preserve an appellate
claim, so long as the party objected to the specific evidence on the specific ground
urged on appeal at a time when the court could determine the evidentiary question
in the proper context. (People v. Crittenden (1994) 9 Cal.4th 83, 125-127; People
v. Morris (1991) 53 Cal.3d 152, 188-191.) At trial, the defense presented a
pretrial motion to exclude defendant‟s postarrest statements as more prejudicial
than probative under Evidence Code section 352, but failed to identify the
particular passage in question here or argue its purported prejudicial effects.
Furthermore, the court deferred ruling on the in limine motion to allow the
prosecutor an opportunity to edit the tape. When defense counsel declined to
challenge the edited version before it was played for the jury during the
prosecution‟s case-in-chief, the court had no opportunity to consider, let alone
35
correct, any possible error. (People v. Ramos (1997) 15 Cal.4th 1133, 1171.) We
conclude, therefore, that defendant has not preserved his claim for appeal.
The challenged statement was properly admitted in any event. Contrary to
defendant‟s assertion, no reasonable juror would have inferred from the exchange
between defendant and Detective Pane that defendant tacitly admitted having
“strangled a girl to death.” Throughout the interrogation, defendant steadfastly
denied strangling or killing anyone. As the interview continued, Pane accused
defendant of lying to him about various matters. Pane said he could assume
defendant was lying because there were “people saying” otherwise. Defendant
acknowledged that the detective could make that assumption. Defendant also
allowed that Pane could assume defendant lied about “never strangling girls”
because someone had reported that he did. But defendant‟s acknowledgement of
the detective‟s logic was not an admission that he had been lying, or that he once
had strangled someone to death. In context, the challenged statement would not
have conveyed to the jury prejudicial evidence of defendant‟s propensity to
commit murder, as defendant suggests.
3. Guilt phase instructions
Defendant argues that the wording of certain standard instructions given at
trial misled the jury and infringed his rights under various state statutes and
constitutional provisions. The following principles guide our evaluation of his
claims. “A defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant. [Citations.]”
(People v. Cross (2008) 45 Cal.4th 58, 67-68.) “ „[T]he correctness of jury
instructions is to be determined from the entire charge of the court, not from a
36
consideration of parts of an instruction or from a particular instruction.‟
[Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 192.)
a. Juror note-taking
Before closing arguments, the court instructed on the subject of note-taking
using former CALJIC No. 17.48. The court informed jurors they could use their
notes during deliberations but cautioned them as follows. “[N]otes are only an aid
to memory and should not take precedence over independent recollection. A juror
who did not take notes should rely on his or her independent recollection of the
evidence and not be influenced by the fact that other jurors did take notes. Notes
are for the note-taker‟s own personal use in refreshing his or her recollection of the
evidence. [¶] Finally, should any discrepancy exist between a juror‟s recollection
of the evidence and his or her notes, he or she may request that the reporter read
back the relevant proceedings and the trial transcript must prevail over the notes.”
CALJIC No. 17.48 first appeared in 1988 in response to People v. Whitt
(1984) 36 Cal.3d 724 (Whitt). (Use Note to CALJIC No. 17.48 (5th ed. 1988).)
Whitt declared in dictum it was “better practice” for courts to caution jurors on the
risks of note-taking. (Id. at p. 747.) Because a juror‟s notes can be inaccurate or
can involve trivial matters, the instruction directed jurors to give more significance
to their independent recollection than to their notes. To prevent note-taking jurors
from dominating the deliberations, the instruction cautioned jurors who had
refrained from taking notes not to be influenced by the fact another juror did so.
(People v. Thompson (1988) 45 Cal.3d 86, 119-120; Whitt, supra, at pp. 746-747.)
CALJIC No. 17.48 was later rephrased and incorporated into CALJIC Nos. 0.50
and 1.05 so that it could be given either at the beginning or conclusion of trial, or
both. (Use Note to CALJIC No. 0.50 (Spring 2008 ed.); Use Note to CALJIC No.
37
1.05 (6th ed. 1997).) A pretrial and posttrial version of the cautionary instruction
also appears in CALCRIM Nos. 102 and 202, respectively.
Until now, appellate claims based on CALJIC No. 17.48 and its successors
have argued the court erred when it failed to instruct, or gave inadequate
instruction, on the risks of note-taking. (See, e.g., People v. Ghent (1987) 43
Cal.3d 739, 757-758, People v. Mayfield (1993) 5 Cal.4th 142, 180, People v.
Avena (1996) 13 Cal.4th 394, 423; People v. Dennis (1998) 17 Cal.4th 468, 537-
538.) Here, however, defendant claims that giving the standard instruction
infringed his statutory and constitutional rights in several respects.
Defendant first contends the instruction prohibited note-sharing and impaired
the jury‟s deliberative and factfinding process. The direction that jurors “not be
influenced” by another juror‟s notes and to trust their independent recall, he posits,
foreclosed a useful source of relevant information in the jury room and required
jurors to accept their own personal recollection as more reliable than the written
notes of another juror “no matter what.”
Defendant correctly observes that section 1137 authorizes jurors to consult
their notes during deliberations. (See People v. Bonillas, supra, 48 Cal.3d at p.
794.) And he may be correct that section 1137 appears to contemplate the free
exchange of notes among jurors. The statute provides, “Upon retiring for
deliberation, the jury may take with them . . . notes of the testimony or other
proceedings on the trial, taken by themselves or any of them . . . .” (§ 1137.)
Contrary to defendant‟s argument, however, there is no reasonable likelihood
any juror would have understood the challenged instruction to prohibit “note
sharing” or to require steadfast adherence to personal recollection when it
conflicted with another juror‟s notes. The instruction admonished the jurors not to
be influenced by the “fact” other jurors took notes. It did not caution jurors
against considering their substance. We recognize jurors were told that “notes are
38
for the note-taker‟s own personal use in refreshing his or her recollection of the
evidence.” In context, however, that portion of the instruction reemphasized that
each juror‟s notes are an aid to his or her own memory of the evidence presented
at trial and no more influential during deliberations than the independent
recollection of the other jurors. No reasonable juror would have understood the
instruction to prohibit him or her from referring to notes while discussing the
evidence.
Furthermore, and more significantly, the jury charge as a whole apprised the
jurors of their role in the deliberative process. The court outlined the jury‟s duty
to deliberate when it instructed on note-taking at the outset of trial. The court
advised, “And if you should have a conflict in the jury room, for example, during
jury deliberations, as to what testimony was on a particular issue, you can use the
notes to refresh your memory; but if that conflict is a difficult one to resolve, don‟t
say, well, my notes say this and therefore it‟s so.” Moreover, as defendant
acknowledges, the court also instructed with CALJIC No. 17.40, which again
conveyed to the jurors, in relevant part, their duty to deliberate: “Each of you
must decide the case for yourself, but should do so only after discussing the
evidence and the instructions with the other jurors.” In light of the instructions as
a whole, we conclude CALJIC No. 17.48 did not mislead the jury about the
deliberative process.
Defendant also argues that CALJIC No. 17.48 violated section 1138 and fair
trial guarantees by restricting the jury‟s right to rehear testimony. According to
defendant, the instruction told jurors they may request a readback of testimony
when a juror‟s recollection of the evidence conflicted “with his or her notes.” He
asserts that jurors would have understood from this language they should not seek
a readback to resolve a conflict between two or more jurors.
39
Section 1138 gives deliberating jurors the right to rehear testimony and
instruction on request. (People v. Frye (1998) 18 Cal.4th 894, 1007.) It also
implicates a defendant‟s fair trial rights. (Ibid.; see also People v. Hillhouse,
supra, 27 Cal.4th at p. 506.)
In light of the entire jury charge, defendant‟s assertion is completely
unsupported. At the outset of trial, the court assured the jurors that in the event of
a “conflict in the jury room” over testimony, “there wouldn‟t be any problem
rereading any testimony to you, should you need that done.” The court repeated
the point at the conclusion of trial when it advised, “If you have a serious question
as to what the evidence is, you can always request the court reporter to read back
any portion of the testimony. As I have told you, we have daily transcripts of all
the testimony, so it‟s not going to be any serious problem for us to read back any
testimony that you may need during the course of your deliberations.” Given the
entire charge, there is no reasonable likelihood any juror would have understood
CALJIC No. 17.48 to restrict the readback of testimony in the manner defendant
suggests. Further, the availability of readback was made clear. Thus, if there was
a conflict caused by varying recollections or annotations, as the court instructed
the jury, it should refer to the reporter‟s transcription that forms the official record
of the testimony.
As defendant points out, the standard instruction was revised after his trial.
The last sentence now reads, “Finally, should any discrepancy exist between a
juror‟s recollection of the evidence and a juror‟s notes, or between one juror’s
recollection and that of another, you may request that the reporter read back the
relevant testimony which must prevail.” (CALJIC No. 1.05, italics added; see also
CALJIC No. 0.05.) According to defendant, the addition of the italicized language
demonstrates that the version given in his case unduly restricted the jury‟s right to
rehear testimony on request.
40
The revised instructional language identifies a second type of conflict that
jurors may wish to resolve by requesting a readback of testimony.13 But nothing
in the instruction, before or after its revision, suggests the jury may request
readbacks to resolve only the specified discrepancies. The given instruction was
not flawed.14 (Cf. People v. Mickey (1991) 54 Cal.3d 612, 671-672 [revision to
CALJIC No. 2.03 improved the accuracy of the standard instruction but did not
render the prior version erroneous].)
b. Circumstantial evidence
The court told the jury that evidence is either direct or circumstantial, both
are an acceptable means of proof, and “neither is entitled to any greater weight
than the other.” (CALJIC No. 2.00.) The court also gave CALJIC Nos. 2.01 and
2.02 on how to consider circumstantial evidence generally and circumstantial
evidence of a specific mental state, respectively. In relevant parts, these
instructions informed the jury that between two reasonable, but opposing,
interpretations of such evidence, it must accept the one that is consistent with
defendant‟s innocence and reject the one that points to his guilt.
CALJIC Nos. 2.01 and 2.02 are cautionary instructions that the court must
give when, as here, the prosecution‟s case rests wholly or substantially on
13 The CALCRIM instructions do not refer to conflicts in recollection. For
instance, the readback instruction simply states, “The court reporter is making a
record of everything said during the trial. If you decide that it is necessary, you
may ask that the court reporter‟s notes be read to you. You must accept the court
reporter‟s notes as accurate.” (CALCRIM No. 104.) The note-taking instruction
likewise omits reference to discrepancies “between one juror‟s recollection and
that of another.” (CALCRIM No. 102.)
14 Because we find no merit to defendant‟s claim of instructional error, we do not
address respondent‟s argument that the People‟s right to due process precludes
reversal for instructional error when no objection was raised below.
41
circumstantial evidence. (People v. Marquez (1992) 1 Cal.4th 553, 577; 3 Witkin,
Cal. Evidence (4th ed. 2000) Presentation at Trial, § 142, p. 202.) The instructions
“clarify the application of the general doctrine requiring proof beyond a
reasonable doubt to a case in which the defendant‟s guilt must be inferred from a
pattern of incriminating circumstances. [Citations.]” (People v. Gould (1960) 54
Cal.2d 621, 629.)
Defendant claims that the circumstantial evidence instructions undermined
the requirement of proof beyond a reasonable doubt as applied to direct evidence,
in violation of state law and his constitutional rights to due process and jury trial.
According to defendant, because the instructions omitted any reference to direct
evidence, jurors would have believed that a fact essential to guilt that was based
on direct, rather than circumstantial, evidence need not be proved beyond a
reasonable doubt.
Again, his argument finds no support. As noted above, the court instructed
that both direct and circumstantial evidence were acceptable means of proof. It
also explained that a defendant is presumed innocent until proved to the contrary
“and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is
entitled to a verdict of not guilty.” (CALJIC No. 2.90.) These instructions,
coupled with the directive to “consider the instructions as a whole and each in
light of the others,” fully apprised the jury that the reasonable doubt standard
applied to both forms of proof. Indeed, defendant benefitted from the elaboration
of the reasonable doubt standard in CALJIC Nos. 2.01 and 2.02.
Defendant complains that the circumstantial evidence instructions
impermissibly dilute the reasonable doubt standard in other respects, infringing his
state and federal constitutional rights to due process and jury trial, and rendering
the guilt verdicts unreliable under the Eighth Amendment. We have repeatedly
rejected the same arguments in cases where, as here, the jury was instructed on the
42
presumption of innocence, the burden of proof and reasonable doubt. (See
generally, People v. Howard (2008) 42 Cal.4th 1000; People v. Rogers, supra, 39
Cal.4th at pp. 888-889; see also People v. Brasure (2008) 42 Cal.4th 1037, 1058
[references to “reasonableness” and “unreasonableness” did not dilute the
reasonable doubt standard]; People v. Crew (2003) 31 Cal.4th 822, 847-848 [same
conclusion as to references to “guilt” and “innocence”].) Defendant posits “it is
no answer” to say jurors instructed with CALJIC No. 2.90 would have understood
they could not convict except on proof of guilt beyond a reasonable doubt. We
have rejected that argument as well. (People v. Carey (2007) 41 Cal.4th 109,
130.) Defendant‟s assertions to the contrary notwithstanding, we see no reason to
reconsider our prior decisions.
c. Motive
The court instructed the jury that “presence of motive may tend to establish
guilt. Absence of motive may tend to establish innocence.” (CALJIC No. 2.51
(5th ed. 1988).) Defendant argues that the terms “establish guilt” and “establish
innocence” reduced the prosecution‟s burden and shifted it to defendant in
violation of due process and jury trial guarantees under the state and federal
Constitutions. He acknowledges we previously have concluded that the same
version of CALJIC No. 2.51 did not shift the burden of proof.15 (See, e.g., People
v. Cleveland (2004) 32 Cal.4th 704, 750; People v. Frye, supra, 18 Cal.4th at p.
958.) Defendant attempts to distinguish our prior decisions on the ground that the
jury in his case received “similarly misleading dichotomies” in the circumstantial
15 The instruction later was revised to read, “Absence of motive may tend to show
the defendant is not guilty.” (CALJIC No. 2.51 (6th ed. 1996).)
43
evidence instructions. His attempt fails. As previously discussed, the
circumstantial evidence instructions are not misleading.
d. Willfully false witnesses
The court instructed the jury it may reject the entire testimony of a witness
who willfully testified falsely on a material point unless it “believe[s] the
probability of truth favors his testimony in other particulars.” (CALJIC No.
2.21.2.) Defendant contends the instruction diluted the reasonable doubt standard
and thus infringed his state and federal constitutional rights to due process and
jury trial because the instruction allowed jurors to accept the testimony of
witnesses, including crucial prosecution witnesses whose testimony was necessary
for conviction, on finding a mere “probability of truth.” We have repeatedly
rejected similar challenges to the instruction that was given in defendant‟s case,
and do so again. (People v. Nakahara (2003) 30 Cal.4th 705, 714; People v. Riel
(2000) 22 Cal.4th 1153, 1200.)
e. Duty to present evidence
The court instructed the jury, “Neither side is required to call as witnesses all
persons who may have been present at . . . or who may appear to have some
knowledge of these events.” (CALJIC No. 2.11.) Defendant complains the
instruction suggested to jurors he was required to at least call some witnesses. By
making it appear defendant had an evidentiary burden of some kind, he argues, the
instruction in effect reduced the prosecution‟s burden of proof in violation of his
rights to due process and jury trial.
People v. Daniels (1991) 52 Cal.3d 815 rejected an identical claim. Here, as
in Daniels, the inference defendant claims the jury would draw from the
instruction is “quite strained” and was dispelled in any event by the reasonable
doubt instructions. (Id. at p. 872; People v. Ratliff (1986) 41 Cal.3d 675, 693.)
44
Defendant argues that his case is different from Daniels in that other instructions
given at trial diluted the reasonable doubt standard. We have rejected the
predicate on which his argument rests.
4. Asserted prosecutorial misconduct
Defendant contends the prosecutor misstated the law on premeditation and
deliberation during guilt phase closing argument in violation of his constitutional
rights to due process, fair trial, jury trial, a meaningful opportunity to defend
against the charges, and a reliable death verdict.
Defendant failed to preserve this claim for appeal because he failed to object
and request an admonition to cure the asserted harm. (People v. Chatman (2006)
38 Cal.4th 344, 407.) In any event, we conclude the prosecutor did not misstate
the law.
The prosecutor explained the difference between first and second degree
murder by addressing the evidence as a whole. He argued, “Assuming these are
murders and assuming these people died of some sort of asphyxial death, either
someone put a pillow over their face and suffocated them, sock down their mouth,
or someone took a ligature and put it around their neck and strangled them to
death, you know, that doesn’t occur in a flick of an eye, moment‟s time. Even if
you have a person all hog tied up, . . . hands tied behind their back, maybe they
can struggle, maybe make a few guttural sounds, takes awhile for them to die,
doesn‟t it? Isn‟t that what first degree murder is all about?”
Alternately, the prosecutor argued, assuming the first murder was not
premeditated or deliberated, “What do you think happens . . . next time you do it?
Does it become a first degree murder the third time, the fourth time, the seventh
time? Don‟t you think at some point you draw upon that memory bank when you
picture in your mind those bodies squirming, jerking around for whatever period
45
of time they did before they finally stop moving? [¶] [S]omewhere along the line
between number one and number seven, got to become first degree murders. . . .
Even if you are unpersuaded with the first one, at least, by the second one, it has
got to leave an impression in your mind that you will never forget.”
We disagree with defendant that the italicized portions of the prosecutor‟s
argument invited the jury to convict him of first degree murder on erroneous
theories. Contrary to defendant‟s assertion, the prosecutor did not suggest
premeditation and deliberation could occur in the “flick of an eye” rather than
after “careful thought and weighing of considerations.” The prosecutor‟s
colloquial remark that asphyxial death “doesn‟t occur in a flick of an eye”
prefaced his point that premeditation and deliberation could be inferred from the
victims‟ asphyxiation because it “takes awhile for them to die.” Viewed in its
entirety, the prosecutor‟s argument was a correct statement of law. (People v.
Bonillas, supra, 48 Cal.3d at p. 792 [“Ligature strangulation is in its nature a
deliberate act”].)
Nor do we discern how the prosecutor‟s alternative theory of the case
conveyed the erroneous notion that premeditation and deliberation could arise
after, rather than before, defendant formed the intent to kill. According to
defendant, the prosecutor‟s statement that the first killing left “an impression in
[defendant‟s] mind that [he would] never forget” suggested that premeditation and
deliberation could begin while defendant was already engaged in the fatal act of
asphyxiating the subsequent victims. We disagree. The thrust of the prosecutor‟s
argument was that even if defendant did not premeditate and deliberate the first
killing, premeditation and deliberation could be inferred when he killed again and
again in the same manner. This, too, is a correct statement of law. (People v.
Steele, supra, 27 Cal.4th at p. 1244 [killing repeatedly under similar circumstances
creates a reasonable inference the killing was intended and premeditated].)
46
Further, the court properly instructed on premeditation and deliberation, and
informed the jury that if the court‟s instructions conflicted with the arguments of
counsel, it must follow the instructions. On this record, there is no reasonable
likelihood the jury would have based its first degree murder verdicts on an
erroneous theory of premeditation and deliberation. (People v. Stitely (2005) 35
Cal.4th 514, 558-559; People v. Boyette (2002) 29 Cal.4th 381, 435-436.)
B. Penalty Phase Issues
1. Jury selection
a. Excusal of prospective jurors for cause
Judge Virga declared a mistrial after the first jury deadlocked on penalty.
Judge Mering presided over the penalty retrial.
Prospective jurors for the penalty retrial filled out a detailed questionnaire
and returned to the courtroom later for individual, sequestered, voir dire. Over
defense objection, the court granted five of the prosecution‟s challenges for cause
based on the jurors‟ views concerning the death penalty. On appeal, defendant
claims the court‟s excusal of Prospective Jurors C.G. and S.C. violated his federal
constitutional rights to due process, an impartial jury, and a reliable penalty
determination.
Under Wainwright v. Witt (1985) 469 U.S. 412 (Witt), a trial court may
excuse a prospective juror for cause based on his or her views in favor of or
against capital punishment only when those views “ „ “would „prevent or
substantially impair the performance of his [or her] duties as a juror‟ ” in
accordance with the court‟s instructions and the juror‟s oath.‟ [Citations.]”
(People v. Martinez (2009) 47 Cal.4th 399, 425.) Prospective jurors sometimes
provide equivocal or conflicting answers to questions about their ability to serve.
When this occurs, the trial court is in the best position to determine the potential
47
juror‟s true state of mind because it has observed firsthand the prospective juror‟s
demeanor and verbal responses. (Id. at p. 426.) “ „ “[A] trial judge who observes
and speaks with a prospective juror and hears that person‟s responses (noting,
among other things, the person‟s tone of voice, apparent level of confidence, and
demeanor), gleans valuable information that simply does not appear on the
record.” [Citation.]‟ [Citation.]” (People v. Bramit (2009) 46 Cal.4th 1221, 1235.)
For this reason, “ „[o]n review of a trial court‟s ruling, if the prospective juror‟s
statements are equivocal or conflicting, that court‟s determination of the person‟s
state of mind is binding. If there is no inconsistency, the reviewing court will
uphold the court‟s ruling if substantial evidence supports it.‟ [Citation.]” (People
v. Hawthorne (2009) 46 Cal.4th 67, 80; People v. Salcido (2008) 44 Cal.4th 93,
133; Witt, supra, at pp. 425-426, 428.)
In this case, we defer to the court‟s determination that the prospective jurors
in question held views that would substantially impair the performance of their
duties, and conclude that the court did not err in excusing them.
i. Prospective Juror C.G.
C.G.‟s juror questionnaire conveyed uncertainty on the subject of the death
penalty. In response to the question whether there was any reason she would like,
or not like, to serve as a juror, C.G. wrote, “I do not know if I believe in capital
punishment . . . .” When directly asked about her feelings regarding the death
penalty, C.G. indicated she was “not sure. . . . Theoretically I‟m against it. In
practicality it may be justified.” She likewise responded, “I don‟t know,” to the
question whether she held such conscientious opinions about the death penalty that
she would never vote for a death verdict regardless of the evidence. She added, “I
can‟t really think of myself as voting to take someone‟s life.”
48
The court inquired about the latter point when C.G. appeared for voir dire
three days after filling out her questionnaire. When the court asked, “Are you
saying that almost certainly you would not return a verdict of death?” C.G.
responded, “I — I — I don‟t — I don‟t really think I could. Um — and then my
thoughts turn to a crime that‟s really hideous and in reality, I think, well, the
person should be put to death. But then I don‟t want to do it.” Defense counsel
asked C.G. if she could consider voting for the death penalty. C.G. paused, then
answered the question in abstract terms.16 When the court then asked C.G.
whether, as a practical matter, she really would consider imposing a death
sentence, she replied, “I don‟t know. I don‟t know.”
As voir dire progressed, C.G.‟s comments became somewhat less equivocal.
For instance, in response to defense counsel‟s further inquiry, C.G. indicated,
“Intellectually, I think I could” listen to both sides and reach a verdict that was not
influenced by any preconceived opinion about the death penalty. She also stated,
following a pause, that she “probably could vote for a sentence of death.” C.G.‟s
equivocation returned, however, during the prosecutor‟s questioning. At one
point, C.G. expressed the view that the death penalty is an act of violence. When
the prosecutor asked C.G. whether she thought she could participate in that kind of
act, there was a “long pause.” C.G. then replied, “I don‟t know. I would find it
extremely difficult.” In a follow-up question, defense counsel elicited from C.G.
that she could conceive of a case in which the death penalty would be appropriate,
and could put aside her biases and follow the law.
16 C.G.‟s pauses here and at other points during voir dire were noted by the court
reporter.
49
Over defense objection, the court granted the prosecutor‟s challenge for
cause. As the court observed, “There were long delays in a lot of [C.G.‟s] answers
and particularly when asked if she actually could return a death penalty, . . . on at
least one and probably two occasions, after long hesitation, she said, „I don‟t
know. I don‟t know.‟ ” The court found that C.G. was fundamentally opposed to
the idea of returning a death verdict and that she harbored “grave doubts” she ever
could do so. It found there was only a “very, very remote” situation in which C.G.
might consider or return a death penalty, no matter what the evidence. Under
these circumstances, the court concluded, C.G. was substantially impaired within
the meaning of Witt.
Here, the record shows that C.G.‟s responses were hesitant and unclear.
When asked directly whether she could consider imposing a death sentence, she
was unable to say. But after personally questioning and observing C.G., the court
determined she was fundamentally opposed to voting for death and found it
unlikely she could consider doing so, regardless of the evidence. In light of C.G.‟s
equivocal responses, and the court‟s firsthand observations, we defer to the court‟s
determination of C.G.‟s state of mind and conclude there was no error in excusing
her for cause. (People v. Hawthorne, supra, 46 Cal.4th at p. 83; People v. Riggs
(2008) 44 Cal.4th 248, 284.) “[T]he reviewing court generally must defer to the
judge who sees and hears the prospective juror, and who has the „definite
impression‟ that [s]he is biased, despite a failure to express clear views.
[Citation.]” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007.)
Defendant asserts that the court applied an incorrect standard when it excused
C.G on the ground she “would find it extremely difficult” to impose the death
penalty. He relies on People v. Stewart (2004) 33 Cal.4th 425 (Stewart) for
support. In Stewart, the court excused five prospective jurors solely on the basis
of their answers on a written questionnaire. The court largely relied on the jurors‟
50
responses to the question whether their views would “ „prevent or make it very
difficult [¶] . . . [¶] [t]o ever vote to impose the death penalty.‟ ” (Id. at pp. 442-
443, italics added.) We concluded that the court erred in excusing the prospective
jurors on this basis because the questionnaire answers provided insufficient
information about the jurors‟ states of mind. (Id. at pp. 446-452.) As Stewart
explains, “the circumstance that a juror‟s conscientious opinions or beliefs
concerning the death penalty would make it very difficult for the juror ever to
impose the death penalty is not equivalent to a determination that such beliefs will
„substantially impair the performance of his [or her] duties as a juror‟ under Witt,
supra, 469 U.S. 412.” (Stewart, supra, at p. 447; see also People v. Avila (2006)
38 Cal.4th 491, 530 [“mere difficulty in imposing the death penalty does not, per
se, prevent or substantially impair the performance of a juror‟s duties”].) This is
so because individuals who firmly oppose the death penalty “ „may nevertheless
serve as jurors in capital cases so long as they clearly state that they are willing to
temporarily set aside their own beliefs in deference to the rule of law.‟ ” (Stewart,
supra, at p. 446, quoting Lockhart v. McCree (1986) 476 U.S. 162, 176.)
Defendant‟s reliance on Stewart is misplaced. The court‟s inquiry in this
case covered much more than C.G.‟s conscientious opinions regarding the death
penalty. For instance, the court asked C.G. whether, as a practical matter, she
could consider imposing a death sentence. This is a correct formulation of the
standard in Witt. (People v. Martinez, supra, 47 Cal.4th at p. 432.) Furthermore,
the court did not base its ruling simply on C.G.‟s remark that it would be
“extremely difficult” for her to vote for a death sentence. Rather, after observing
and assessing C.G.‟s responses and demeanor firsthand, the court found that
C.G.‟s fundamental opposition to the death penalty created only a remote
possibility that she might consider or return a death sentence, regardless of the
evidence in the case. Its finding necessarily encompassed a determination that
51
C.G. was unable to set aside her personal views and follow the law. In People v.
DePriest (2007) 42 Cal.4th 1, we deferred to the court‟s excusal of three jurors
who indicated they would have “extreme difficulty” voting for the death penalty
even in an appropriate case. (Id. at p. 22.) In that case, as here, the court was left
with the “ „definite impression‟ ” that the prospective jurors could not impartially
apply the law. (Ibid.) Contrary to defendant‟s assertion, the court applied the
correct standard in excusing C.G.
Defendant also argues that the court erred in excusing C.G. based on her
“long pause” and the response that followed it because these were attributable to
trial court error, prosecutorial misconduct, and ineffective assistance of counsel.
Defendant asserts, for instance, that new and contradictory information confused
C.G. and thus slowed her response time. As defendant observes, C.G. was
informed in introductory instructions and in the questionnaire that a juror is never
required to vote for death, even if he or she found that aggravation substantially
outweighed mitigation. But during voir dire, he points out, the court informed her
that if she “intellectually, morally, and otherwise concluded this [was] an
appropriate case for the death penalty, then it would be her obligation to bring
back the death penalty in that situation.” Defendant simply asserts without further
support that C.G. required time to digest this new information. Defendant also
contends that C.G.‟s response after the long pause, in which she indicated it would
be “extremely difficult” for her to participate in an “act of violence” by voting for
the death penalty, was based on an apparent, and uncorrected, misconception that
sentencing defendant to death meant he would die by the electric chair.17 If C.G.
17 C.G. wrote in three different sections of her questionnaire that she found the
electric chair “cruel” and “inhuman[e].” According to defendant, when C.G.
indicated during voir dire that she would have difficulty voting for the death
(footnote continued on next page)
52
had been provided accurate information, he speculates, “there is an excellent
chance” that she would have responded as she had during questioning by defense
counsel, that she could follow the law and put aside her views about the death
penalty.
We have reviewed the record of voir dire and conclude C.G‟s “long pause”
and the response that followed were not the products of confusion and
misconception engendered and perpetuated by the court and the attorneys.
Contrary to defendant‟s assertion, C.G. was not given “new and contradictory
information” that required time for reflection. There is no conflict between the
principles that a juror is not required to find death the appropriate penalty but that,
if she does conclude that death is appropriate, she must return a verdict of death.
Nor do we agree that C.G.‟s response following the long pause was tainted by her
misconception that executions were carried out by electric chair. During
questioning, the prosecutor noted that C.G. had written in her questionnaire that
the electric chair is an inhumane punishment. He then asked her, “[B]eyond the
way . . . that the penalty is imposed,” is it improper “for the state to take someone
else‟s life?” He also inquired whether C.G. thought the death penalty perpetuates
violence. (Ibid.) The prosecutor‟s questions may have been prompted by C.G.‟s
remark about the electric chair, but they were directed at her views regarding the
(footnote continued from previous page)
penalty, it was death in the electric chair that she had in mind. He asserts that the
prosecutor exploited C.G.‟s misconception during the line of questioning that led
to the “long pause” and its response, and he faults the court and defense counsel
for not informing C.G. that, at the time of trial in defendant‟s case, the death
penalty was carried out by lethal gas, not the electric chair.
53
death penalty generally, not about the manner of its execution.18 C.G.‟s responses
to those questions provided a proper basis on which the court could excuse her for
cause.
We also reject defendant‟s further argument that the court‟s reliance on
C.G.‟s long pauses as a reason to excuse her is contrary to People v. Heard (2003)
31 Cal.4th 946. In Heard, we reversed the defendant‟s death sentence because the
court erroneously excused a prospective juror whose statements indicated that he
would not automatically vote for life without parole, regardless of the evidence.
(Id. at pp. 963-966.) In so doing, we rejected the People‟s argument that the
prospective juror‟s “long period of silence” before answering a question by the
court supported excusal. (Id. at p. 967, fn. 10.) We explained that reflection was
appropriate in light of the court‟s imprecise questioning, and that the answer that
followed did not amount to grounds for excusing the prospective juror for cause.
(Ibid.) Here, by contrast, C.G. paused numerous times before offering halting,
equivocal responses to questions regarding her views on the death penalty. C.G.‟s
silence was an expression of her uncertainty, not of appropriate reflection. As our
cases make clear, a prospective juror‟s noticeable pauses before answering
questions properly informs the court‟s determination whether to excuse her for
cause. In People v. Hawthorne, supra, 46 Cal.4th 67, we upheld the court‟s
excusal of a prospective juror who took “ „a long time in answering.‟ ” (Id. at p.
82.) In People v. Abilez (2007) 41 Cal.4th 472, we found no abuse of discretion in
the court‟s for-cause excusal of a prospective juror whose pauses of 20 to 30
seconds before answering led the court to reasonably conclude he was being
evasive about his views. (Id. at p. 498.) Likewise, in this case, the court properly
18 The manner in which the death penalty is carried out is irrelevant to the penalty
determination. (People v. Lucas (1995) 12 Cal.4th 415, 499.)
54
relied on the manner in which C.G. responded to questions in determining whether
her views would substantially impair her obligations as a juror.
Deference to trial court findings and the requirement of timely objection are
rules grounded in reason and practicality. The trial court and counsel are in a far
superior position to evaluate a prospective juror‟s demeanor and its significance.
A speculative argument, made years after the fact, and based solely on a cold
record, is merely an exercise in revisionist history.
ii. Prospective Juror S.C.
Prospective Juror S.C. indicated in her questionnaire and during questioning
that she supported the death penalty. She also stated she believed there are
individuals who should be sentenced to death. However, in response to the
question whether there was any reason she would like, or not like, to sit as a juror
in the case, she wrote, “It would be hard for me to choose [the] death penalty.”
During voir dire, when S.C. was asked whether she was capable of making a
sentencing decision that could involve imposing the death penalty, she indicated
she did not think she was. S.C. explained that she would “hate to be the one who
makes the decision” and “the thought of sending someone to death, taking
somebody‟s life would disturb me.”
As voir dire continued, S.C.‟s responses to questions regarding her reluctance
to serve on a capital sentencing jury became equivocal. She answered, “I don‟t
know,” when asked whether she could set aside her feelings about deciding
punishment. S.C. agreed with defense counsel that most people have similar
reservations. She also replied, “I guess if I have to, I would,” when asked
whether, if chosen to sit on the jury, she would listen to the evidence and
instructions, and deliberate with fellow jurors. But in response to the court‟s
question whether she would vote for life in order to avoid the pressure of
55
sentencing someone to death, she responded, “I don‟t know. I just — I don‟t
know what I would do, to tell you the truth.” The court probed further by asking
S.C. again if she probably would vote for a life sentence so she would not have to
“face the tough decision of deciding the death penalty and voting for the death
penalty.” She responded, “Well, I might, I don‟t know. It‟s hard for me to say,
you know.”
Over defense objection, the court granted the prosecutor‟s motion to excuse
S.C. for cause. The court observed that it was “hard to know what‟s going through
her brain.” It also noted that S.C. supports the death penalty, “at least
academically.” But in the court‟s view, S.C. had refused to commit herself to
saying she could return a death verdict in an appropriate case: She “kept
equivocating and kept backing off.” Acknowledging that it faced a “difficult
choice,” the court determined that S.C. was “substantially impaired in her ability
to consider, as an alternative in this case, the death penalty.”
We will not second-guess the court‟s ruling excusing S.C. for cause. S.C.
expressed support for the death penalty, but was unable to state that she could set
aside her reluctance to be personally responsible for sentencing someone to death
and vote for the death penalty in an appropriate case. After observing S.C.‟s
responses and demeanor, the court determined that her inability to say she could
return a death verdict in an appropriate case rendered her substantially impaired.
S.C.‟s equivocal answers, combined with the court‟s firsthand assessment of her
responses and demeanor, could give rise to a “definite impression” on the part of
the court that S.C.‟s views would substantially impair the performance of her
duties as a juror. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.) In
People v. Bunyard (2009) 45 Cal.4th 836, we deferred to the court‟s determination
that the juror‟s reluctance to serve on the jury rendered her substantially impaired.
(Id. at pp. 845-846.) In People v. Cunningham (2001) 25 Cal.4th 926, we
56
concluded the court did not err in excusing a prospective juror who supported the
death penalty but could not personally impose it. (Id. at p. 981.) Similarly here,
we defer to the court‟s determination of S.C.‟s state of mind, and uphold her
excusal for cause.
Defendant argues that S.C.‟s responses showed only that her feelings would
make it difficult for her ever to impose the death penalty, which is an improper
basis for her excusal. (Stewart, supra, 33 Cal.4th at p. 447.) That characterization
misconstrues the record. S.C. was excused because she was unable to say she
could return a death verdict in an appropriate case. The court was in the best
position to determine the juror‟s true state of mind because it had observed her
demeanor and oral responses firsthand. (People v. Martinez, supra, 47 Cal.4th at
p. 426.) We reject defendant‟s depiction of the basis for S.C.‟s excusal and his
claim of error.
b. Limitation of voir dire
By written motion, defense counsel submitted a questionnaire for prospective
penalty retrial jurors to complete before voir dire questioning. Proposed question
No. 103 asked prospective jurors to check “yes” or “no” as to whether they
automatically would vote for the death penalty if presented with certain facts. The
various facts appeared in five separate subparts. Subpart D asked about a case in
which the accused “has been convicted of six murders of women plus has been to
prison for sexually assaulting women.” Subpart E asked, “Would your answers be
the same if one or more murders involved sexual assaults on women?”
The court conducted extensive hearings on the proposed questionnaire and
spent considerable time discussing question No. 103. Defense counsel argued in
essence that providing basic information about the aggravating factors was
necessary to determine whether the prospective jurors could be impartial and fair
57
to both sides. The prosecutor did not oppose general questions touching on the
issues that would arise during the case in aggravation, including multiple murder
and defendant‟s extensive criminal history. But, he argued, asking jurors
questions about all of the aggravators invited them to prejudge the case. He urged
the court to exclude such questions from the questionnaire but allow them during
individual questioning when appropriate.
The court ultimately rejected questions about defendant‟s prior sexual
assaults or the sexually assaultive nature of the capital crimes. It explained,
“There are limits as to how much specificity and prejudgment we‟re to provide
and . . . let‟s face it, [the] 800-pound gorilla in this case is six murders . . . . [I]f a
juror can deal with that . . . that is a juror [who is] able to consider this case . . . .”
In the court‟s view, the jurors‟ awareness that defendant stood convicted of “six
murders of women” was a powerful enough reminder that the case was
extraordinary and had enough of an impact to “give us a start.”19
The court did permit some questions disclosing specific information about
the capital crimes, however. For instance, the preface to a series of questions
19 Question No. 103 was renumbered to No. 90 and modified to read as follows.
“Are your feelings about the death penalty such that regardless of how
powerful or impressive the evidence offered in mitigation may be, you would be in
favor of the death penalty in every case in which the accused:
“A.
Has been convicted of murder? Yes ___ No ___
“B.
Has been convicted of six murders of women?
Yes ___ No. ___
Please explain. ______________________________”
58
about pretrial publicity indicated that, between 1986 and 1987, seven women,
some of whom were believed to be prostitutes, were found buried in backyards
and in abandoned houses in the Oak Park area of Sacramento, and that defendant
had been convicted of murdering six of them. The court also allowed question No.
20, which asked jurors their feelings about viewing coroner‟s and autopsy
photographs “of several dead women.” Although the court refused to allow
questions based on the sexually violent nature of defendant‟s prior convictions, it
did allow a question asking whether jurors had read, seen, or heard reports that
defendant had a prior criminal record or had served time in state prison and, if so,
whether they had formed an opinion about his sentence because of them.
The court revisited the issue just before voir dire began. After considering
extensive defense argument, the court disallowed oral questioning about
defendant‟s history of violent sexual crimes against women or the manner in
which the capital murders occurred. The court reasoned, as it had before, that
such questioning would invite a prejudgment of the case that the law does not
allow. The court acknowledged that voir dire questioning is not confined to the
abstract and that some consideration of the particular case is permitted. But it
found that principle to mean that jurors could be questioned about the general
nature of the charges and not the details that may aggravate them. The court told
the venire in introductory remarks that defendant had been convicted of murdering
six women and sexually assaulting two others. Defense counsel was permitted to
ask prospective jurors whether the sheer number of convictions would cause them
automatically to vote for death.
Defendant contends the court violated his rights to due process and an
impartial jury by refusing to allow the defense to question prospective jurors about
their ability to keep an open mind on penalty after hearing evidence about
defendant‟s prior violent sexual assaults against women, a prior prison term, and
59
the condition in which the murder victims‟ bodies were found. There was no
error.
A trial court has wide discretion when conducting death-qualification voir
dire in accordance with the commands of Witherspoon v. Illinois (1968) 391 U.S.
510 and Witt, supra, 469 U.S. 412. (People v. Zambrano (2007) 41 Cal.4th 1082,
1120.) We thus review the court‟s limitations on voir dire for abuse of discretion.
(Ibid.)
In 1992, when the court issued its rulings, our decisions emphasized that the
voir dire inquiry in a capital case “is directed to whether, without knowing the
specifics of the case, the juror has an „open mind‟ on the penalty determination.”
(People v. Clark (1990) 50 Cal.3d 583, 597.) Applying this principle, People v.
Mason (1991) 52 Cal.3d 909, held the court properly refused to allow questioning
that gave prospective jurors substantial information about the defendant‟s elderly
victims and the manner in which they were killed. (Id. at pp. 939-940.) In
explaining why such questioning was not proper on voir dire, the Mason court
observed, “Many persons whose general neutrality toward capital punishment
qualifies them to sit as jurors might, if presented with the gruesome details of a
multiple-murder case, conclude that they would likely, if not automatically, vote
for death.” (Id. at p. 940.)
After defendant‟s trial, we qualified the rule articulated in our earlier
decisions: “[D]eath-qualification voir dire must avoid two extremes. On the one
hand, it must not be so abstract that it fails to identify those jurors whose death
penalty views would prevent or substantially impair the performance of their
duties as jurors in the case being tried. On the other hand, it must not be so
specific that it requires the prospective jurors to prejudge the penalty issue based
on a summary of the mitigating and aggravating evidence likely to be presented.”
(People v. Cash (2002) 28 Cal.4th 703, 721-722 (Cash).)
60
Although the court lacked the guidance of our later decisions, it struck the
proper balance in death qualification voir dire nonetheless. Prospective jurors
were asked whether certain circumstances of the case would affect their ability to
keep an open mind about penalty. To inform their answers to that inquiry, jurors
were told that the first jury convicted defendant of murdering six women and
sexually assaulting two others. Although the jurors were not informed about the
nature of defendant‟s prior criminal conduct, a questionnaire item regarding
pretrial publicity suggested to them that defendant may have committed other
crimes. And although jurors were not informed that the murder victims had been
bound and asphyxiated, they learned that some of the victims may have been
prostitutes and that the bodies were found inside abandoned houses and buried in
backyards. They were also asked how they would feel about viewing autopsy
photographs of “several dead women.” This questioning allowed sufficient
inquiry into the jurors‟ views about particular facts in the case that could affect
their ability to deliberate fairly. The court did not abuse its discretion in refusing
counsel‟s request to further probe jurors‟ attitudes about defendant‟s having been
sent to prison for violent sexual assaults and the condition in which the murder
victims‟ bodies were discovered.
Defendant argues that Cash, supra, 28 Cal.4th 703, compels reversal. In
Cash, the defendant was convicted of one count each of murder in the course of
robbery and attempted murder. During the penalty phase, the prosecution
presented evidence that the defendant killed his elderly grandparents when he was
17 years old. The jury returned a verdict of death. (Id. at pp. 714, 717.) On
appeal, the defendant claimed the court erred by refusing to allow defense counsel
to ask prospective jurors whether they would automatically vote for death if the
defendant had previously committed another murder. During jury selection, the
court had imposed a blanket rule restricting voir dire solely to the facts appearing
61
on the face of the charging document. (Id. at p. 719.) We concluded that the court
erred in refusing voir dire on the prior murder, and reversed the defendant‟s death
sentence. The restriction on questioning was impermissible for two reasons. First,
a trial court cannot absolutely bar mention of any fact or circumstance solely
because it is not expressly pleaded in the charging document. (Id. at p. 722.)
Second, and relevant to the evidence in that particular case, a prior murder was “a
general fact or circumstance that . . . could cause some jurors invariably to vote for
the death penalty, regardless of the strength of the mitigating circumstances . . . .”
(Id. at p. 721.)
Contrary to defendant‟s argument, Cash does not compel reversal here.20 In
this case, the court did not categorically bar questions on matters other than those
appearing on the face of the charging document. For instance, the portion of the
juror questionnaire asking whether pretrial publicity potentially affected the
jurors‟ views on penalty disclosed that seven women, some of whom were
believed to be prostitutes, were found buried in backyards and in abandoned
houses, and that defendant had been convicted of murdering six of them. Nor did
the prohibited lines of questioning involve facts that would cause some jurors
invariably to vote for death. In People v. Zambrano, supra, 41 Cal.4th 1082, we
held the court did not abuse its discretion in prohibiting defense counsel from
questioning prospective jurors about evidence that the murder victim‟s body had
been dismembered. (Id. at pp. 1122-1123.) Under the circumstances of that case,
we found the fact of dismemberment “does not appear so potentially inflammatory
as to transform an otherwise death-qualified juror into one who could not
20 Because we conclude that Cash does not support reversal in this case, we do
not address respondent‟s argument that the decision should be overruled.
62
deliberate fairly on the issue of penalty.” (Id. at p. 1123, italics omitted.)
Likewise here, given what the prospective jurors knew about the case, we cannot
say that evidence of defendant‟s prior, nonfatal sexual assaults and related prison
term, or the fact the murder victims were found partially clad and bound, would
cause an otherwise death-qualified juror to automatically vote for death, regardless
of the mitigating evidence. The court did not err in prohibiting the proffered line
of questioning.21
2. Photographs showing condition of victims’ bodies when discovered
The court held a pretrial hearing on the admissibility of photographs and
videotapes depicting the murder victims when discovered, and showing their
various states of decomposition. The defense argued that, under Evidence Code
sections 350 and 352, the court must exclude any photographs or videotapes that
were irrelevant, unduly gruesome, or cumulative.22
21 Language in People v. Roldan (2005) 35 Cal.4th 646 does not call into question
our conclusion in this case. In Roldan, as here, we rejected the defendant‟s
argument that Cash compelled reversal of his death sentence. In so doing, we
observed that the defendant had identified no particularized fact about his case
comparable to the prior murders at issue in Cash: “There were in this case no
prior murders, no sensational sex crimes, no child victims . . . .” (Id. at p. 694,
italics added.) The dictum in Roldan suggests that, in an appropriate case,
evidence of “sensational sex crimes” might cause an otherwise death-qualified
juror to automatically vote for death, regardless of the mitigating facts. As we
have explained, however, this is not such a case.
22 Evidence Code section 350 provides, “No evidence is admissible except
relevant evidence.”
63
At the hearing, the prosecutor sought admission of only those photographs
admitted at the guilt trial. For purposes of comparison, he provided the court with
the photographs that had been excluded from the guilt phase. The court reviewed
both sets of photographs and the videotapes, and ruled on each one individually,
excluding some images as unduly gruesome or cumulative and admitting the rest,
or portions of the rest, over defense objection.
Defendant contends the admitted photographs lacked probative value,
inflamed the jury, and duplicated witness testimony, and that their admission
rendered his penalty trial fundamentally unfair in violation of federal
constitutional principles. The court did not abuse its discretion in admitting the
photographs. (People v. Lewis (2009) 46 Cal.4th 1255, 1284 [defendant‟s
constitutional rights are not implicated by the routine application of state
evidentiary law].)
The court has broad discretion to determine the admissibility of photographs
challenged under Evidence Code section 352 as unduly gruesome or
inflammatory. (People v. Zambrano, supra, 41 Cal.4th at p. 1149.) In a capital
case, however, the court‟s discretion to exclude such evidence is more
circumscribed at the penalty phase than at the guilt phase. (People v. Salcido,
supra, 44 Cal.4th at p. 158.) As we noted in People v. Bonilla (2007) 41 Cal.4th
313, “the prosecution has the right to establish the circumstances of the crime,
including its gruesome consequences . . . .” (Id. at p. 353.) “To determine
whether there was an abuse of discretion, we address two factors: (1) whether the
photographs were relevant, and (2) whether the trial court abused its discretion in
finding that the probative value of each photograph outweighed its prejudicial
effect. [Citation.]” (People v. Whisenhunt (2008) 44 Cal.4th 174, 211-212.)
The photographs depicting the victims‟ bound, decomposing bodies were
highly relevant to the circumstances of the crimes. (§ 190.3, factor (a), hereafter
64
factor (a).) They disclosed the manner in which the victims died and substantiated
that defendant intended and deliberated the murders. (People v. Loker, supra, 44
Cal.4th at p. 705; People v. Wilson (1992) 3 Cal.4th 926, 937-938.) They
demonstrated the callousness and cruelty of defendant‟s acts. (People v.
Thompson (1990) 50 Cal.3d 134, 181-182.) And they corroborated the
pathologists‟ testimony and assisted the jury‟s understanding of it. (People v.
Riggs, supra, 44 Cal.4th at p. 304; People v. Bonilla, supra, 41 Cal.4th at p. 354.)
Defendant complains that the photographs confuse his criminal conduct with its
postoffense effects, which falls outside the scope of factor (a). We disagree. The
“circumstances of the crime” include what happened to the victims‟ bodies as a
result of defendant‟s actions. (People v. Bonilla, supra, at p. 354.) The
consequences of criminal conduct often extend beyond the immediate result of an
isolated act.
Nor did the court abuse its discretion in determining that the probative value
of each photograph outweighed its prejudicial effect. Defendant claims that five
of the images were “particularly revolting” and likely to trigger an “unguided
emotional response” from jurors that rendered his penalty trial unfair. (Penry v.
Lynaugh (1989) 492 U.S. 302, 328.) We have reviewed the five 8-by-10-inch
color photographs in question and conclude that they are “not of such a nature as
to overcome the jury‟s rationality.”23 (People v. Whisenhunt, supra, 44 Cal.4th at
23 Exhibit 23 depicts Yolanda Johnson‟s upper torso and head; her bloated face is
turned to its side. Exhibit 114 shows Maria Apodaca trussed into a fetal position
with her wrists bound together under the back of her knees. Her skin and clothing
are dirty, and her facial features have “melted” due to decomposition. Exhibits
168-A and 225 show Sheila Jacox‟s duct-taped mouth and tightly bound, severely
decomposed body. Finally, exhibit 298 depicts the dirt-covered, decomposing
body of Sharon Massey trussed at the wrists and ankles into a fetal position. A red
sock protrudes from her mouth.
65
p. 212.) The photographs are unpleasant, but any “revulsion they induce is
attributable to the acts done, not to the photographs.” (People v. Brasure, supra,
42 Cal.4th at p. 1054.) The prosecution was entitled to have the penalty jury
consider the real-life consequences of defendant‟s actions. (People v. Bonilla,
supra, 41 Cal.4th at p. 354.) Defendant complains that the photographs were
simply an adjunct to the pathologists‟ testimony and, therefore, unnecessary. As
we have explained, however, “prosecutors . . . are not obliged to prove their case
with evidence solely from live witnesses.” (People v. Lewis, supra, 46 Cal.4th at
p. 1282; People v. Brasure, supra, at p. 1054.)
The court conscientiously considered the admissibility of each proffered
photograph. Weighing prejudice against probative value, it excluded several
images as unnecessary or grotesque. We find no abuse of discretion in the court‟s
decision to admit the others.
3. Challenges to California’s death penalty law
We reject defendant‟s “routine instructional and constitutional challenges” to
California‟s death penalty statute, and decline his invitation to reconsider our prior
decisions. (People v. Schmeck (2005) 37 Cal.4th 240, 303; see id. at p. 304.)
California‟s death penalty statute, including the multiple-murder special
circumstance, adequately narrows the class of murderers eligible for the death
penalty, as required by the Eighth Amendment. (People v. Loker, supra, 44
Cal.4th at p. 755; People v. Beames (2007) 40 Cal.4th 907, 933-934; People v.
Rogers, supra, 39 Cal.4th at p. 893.)
Allowing the capital sentencing jury to consider evidence of unadjudicated
offenses involving force or violence under section 190.3, factor (b) does not
66
infringe a defendant‟s rights to due process or a reliable penalty determination.24
(People v. Harris, supra, 43 Cal.4th at pp. 1315-1316; Tuilaepa v. California
(1994) 512 U.S. 967, 976-977.) Nor does the jury‟s consideration of the
circumstances of the crime under factor (a) result in the arbitrary application of the
death penalty in violation of federal constitutional principles. (People v. Bennett
(2009) 45 Cal.4th 577, 630-631; Tuilaepa v. California, supra, at pp. 973, 975-
976.)
The due process and reliability guarantees of the Fifth, Eighth, and
Fourteenth Amendments do not require the jury to find, either beyond a reasonable
doubt or by a preponderance of the evidence, that an aggravating factor (other than
a prior crime) exists, that the aggravating factors outweigh the factors in
mitigation, or that death is the appropriate penalty. (People v. Butler (2009) 46
Cal.4th 847, 873-874; People v. Loker, supra, 44 Cal.4th at p. 755.) Likewise, the
federal Constitution does not require the prosecution to bear the burden of
persuasion on penalty. (People v. Bramit, supra, 46 Cal.4th at p. 1249; People v.
Lenart (2004) 32 Cal.4th 1107, 1136-1137.) Neither the equal protection clause,
nor the United States Supreme Court‟s recent pronouncements on the Sixth
Amendment jury trial right25 compel a different conclusion. (People v. Burney
24 Defense counsel did not render ineffective assistance by failing to challenge the
admission of evidence of unadjudicated crimes on the constitutional grounds
defendant presents here. The Sixth Amendment does not require counsel to raise
futile motions. (People v. Gutierrez (2009) 45 Cal.4th 789, 804-805; People v.
Frye, supra, 18 Cal.4th at p. 985.)
25 Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002)
536 U.S. 584.
67
(2009) 47 Cal.4th 203, 260, 268; People v. Hovarter, supra, 44 Cal.4th at pp.
1029-1030; People v. Loker, supra, at p. 755.)
That the jury is not instructed to make explicit, written findings or to
unanimously agree on the particular combination of aggravating factors
warranting a death verdict does not violate the due process, equal protection, jury
trial, or reliability guarantees of the Fifth, Sixth, Eighth, and Fourteenth
Amendments or analogous state constitutional provisions. (People v. Burney,
supra, 47 Cal.4th at pp. 267-268; People v. Loker, supra, 44 Cal.4th at p. 755.)
The high court‟s decision in Ring v. Arizona, supra, 536 U.S. 584 does not alter
our conclusion. (People v. Burney, supra, at pp. 259-260.)
California‟s death penalty statute does not violate the equal protection clause
by denying capital defendants various procedural safeguards that apply to
sentencing determinations in noncapital trials, such as juror unanimity. (People v.
Martinez, supra, 47 Cal.4th at p. 456; People v. Smith (2005) 35 Cal.4th 334, 374-
375.)
Intercase proportionality review for death penalty judgments is not
constitutionally required. (People v. Butler, supra, 46 Cal.4th at p. 885; Pulley v.
Harris (1984) 465 U.S. 37, 50-51.)
The death penalty law is not contrary to international norms of human
decency in violation of the Eighth and Fourteenth Amendments. (People v.
Thornton (2007) 41 Cal.4th 391, 470; see People v. Demetrulias (2006) 39 Cal.4th
1, 43 [California does not use capital punishment as “ „regular punishment for
substantial numbers of crimes‟ ”].) Nor does imposition of the death penalty
violate international law, such the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, or the American Declaration
of the Rights and Duties of Man. (People v. Hamilton (2009) 45 Cal.4th 863,
961.) “International law does not prohibit a sentence of death rendered in
68
accordance with state and federal constitutional and statutory requirements.
[Citations.]” (People v. Hillhouse, supra, 27 Cal.4th 469, 511.)
III. DISPOSITION
For the foregoing reasons, we affirm the judgment.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
69
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Solomon, Jr.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S029011
Date Filed: July 15, 2010
__________________________________________________________________________________
Court: Superior
County: Sacramento
Judge: Michael J. Virga and Peter N. Mering
__________________________________________________________________________________
Attorneys for Appellant:
Bruce Eric Cohen, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon, Patrick J. Whalen, Michael P.
Farrell and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
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) 559-1810
David Andrew Eldridge
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-6291
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 07/15/2010 | 49 Cal. 4th 792, 234 P.3d 501, 112 Cal. Rptr. 3d 244 | S029011 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Sacramento Office David A. Eldridge, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
| 2 | Solomon, Morris (Appellant) San Quentin State Prison Represented by California Appellate Project - Sf Michael Millman, Executive Director 101 Second Street, Suite 600 San Francisco, CA |
| 3 | Solomon, Morris (Appellant) San Quentin State Prison Represented by Bruce Eric Cohen Attorney at Law 101 Second St., Suite 600 San Francisco, CA |
| Opinion Authors | |
| Opinion | Justice Carol A. Corrigan |
| Dockets | |
| Sep 16 1992 | Judgment of death |
| Sep 30 1992 | Filed certified copy of Judgment of Death Rendered 9-16-92. |
| Apr 23 1997 | Counsel appointment order filed Appointing Bruce E. Cohen to represent Applt on His Automatic Appeal, Including Any Related Habeas Proceedings. |
| Apr 23 1997 | Compensation awarded counsel |
| May 28 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| May 29 1997 | Extension of Time application Granted To Applt To 7-28-97 To request Corr. of Record. |
| Jun 2 1997 | Filed: Suppl Proof of Service of Ext. Request. |
| Jul 23 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Jul 24 1997 | Extension of Time application Granted To Applt To 9-26-97 To request Corr. of Record. |
| Sep 25 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Sep 26 1997 | Extension of Time application Granted To Applt To 11-25-97 To request Corr. of Record. |
| Nov 20 1997 | Application for Extension of Time filed By Applt to request correction of the Record. |
| Nov 24 1997 | Extension of Time application Granted To Applt To 1-26-98 To request Corr. of Record. |
| Jan 5 1998 | Received: Copy of Applt's request for correction, Augmentation, & Settlement of Record, & to Examine Sealed Documents & Transcripts (69 Pp.) |
| Jan 14 1998 | Compensation awarded counsel |
| Feb 11 1998 | Compensation awarded counsel |
| Mar 29 2000 | Compensation awarded counsel Atty Cohen |
| Jun 15 2000 | Record on appeal filed C-70 (19,859 Pp.) and R-69 (20,872 Pp.) Including Material Under Seal; Clerk's Transcripts include 8,575 pages of Juror Questionnaires. |
| Jun 15 2000 | Appellant's opening brief letter sent, due: 7/25/2000 |
| Jun 20 2000 | Compensation awarded counsel Attorney Cohen |
| Jul 21 2000 | Application for Extension of Time filed To file AOB. (1st request) |
| Jul 24 2000 | Extension of Time application Granted To 9/25/2000 to file AOB. |
| Sep 20 2000 | Application for Extension of Time filed To file AOB. (2nd request) |
| Sep 22 2000 | Extension of Time application Granted to 11-27-2000 to file AOB. |
| Oct 10 2000 | Counsel's status report received (confidential) |
| Nov 21 2000 | Application for Extension of Time filed To file AOB. (3rd request) |
| Nov 29 2000 | Extension of Time application Granted To 1/26/2001 to file AOB. |
| Jan 17 2001 | Application for Extension of Time filed To file AOB. (4th request) |
| Jan 22 2001 | Counsel's status report received (confidential) |
| Jan 22 2001 | Extension of Time application Granted To 3/27/2001 to file AOB. |
| Mar 21 2001 | Application for Extension of Time filed To file AOB. (5th request) |
| Apr 19 2001 | Extension of Time application Granted To 5/29/2001 to file AOB. |
| May 22 2001 | Application for Extension of Time filed To file AOB. (6th request) |
| Jun 1 2001 | Extension of Time application Granted To 6/28/2001 to file AOB. |
| Jun 15 2001 | Counsel's status report received (confidential) from atty Cohen. |
| Jun 21 2001 | Application for Extension of Time filed to file AOB. (7th request) |
| Jun 29 2001 | Extension of Time application Granted to 8/27/01 to file AOB No further extensions of time are contemplated |
| Aug 21 2001 | Application for Extension of Time filed To file AOB. (8th request) |
| Aug 29 2001 | Extension of Time application Granted To 10/26/2001to file AOB. No further extensions of time will be granted. |
| Oct 9 2001 | Counsel's status report received (confidential) |
| Oct 12 2001 | Counsel's status report received (confidential) |
| Oct 24 2001 | Application for Extension of Time filed To file AOB. (9th request) |
| Oct 31 2001 | Order filed: The last order filed 8/29/2001, granting applt.'s counsel's request for an extension of time indicated that no further extensions of time will be granted. Based solely on the representation of counsel Bruce Eric Cohen that he will file applt.'s opening brief by 12/26/2001, the request for an extension of time is granted, and applt.'s opening brief shall be served and filed on or before 12/26/2001. If the brief is not filed by that date, the court will consider issuing an order directing applt.'s counsel to show cause before this court, when the matter is ordered on calendar, why counsel should be held in contempt of court and further payments suspended or other sanction imposed for his delay in the appellate process occasioned by the approximately 15 months of extensions of time thus far granted. |
| Dec 21 2001 | Counsel's status report received (confidential) |
| Feb 6 2002 | Counsel's status report received (confidential) |
| Feb 13 2002 | Counsel's status report received (confidential) from atty Cohen. |
| Apr 22 2002 | Motion filed (in non-AA proceeding) by appellant for relief of default; adoption of formal due date for filing AOB; adoption of long-range plan for timely fulfullment of counsel's obligations in all four of his capital cases. |
| Apr 23 2002 | Counsel's status report received (confidential) |
| May 14 2002 | Compensation awarded counsel Atty Cohen |
| May 30 2002 | Order filed Appellant's "Motion for: 1) Relief From Default; 2) Adoption of Formal Due Date for Filing Appellant's Opening Brief; and 3) Adoption of Long-range Plan for Timely Fulfillment of Counsel's Obligations in All Four of His Capital Cases (Sapp, Solomon, George, and Coddington)" is granted in part and denied in part. Appellant's motion is granted in the following respect: Appellant is relieved from default for failing to submit his opening brief by the final due date. Appellant's opening brief is due for filing on or before July 22, 2002. The court anticipates that after that date, only 6 further extensions totaling 314 additional days will be granted. Counsel is ordered to inform his assisting entity of this schedule, and to take all steps necessary to meet it. In all other respects, appellant's motion is denied. |
| Jul 22 2002 | Request for extension of time filed To file AOB. (11th request) |
| Jul 24 2002 | Extension of time granted To 9/20/2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 254 additioal days will be granted. Counsel is orderd to inform his assisting entity of this schedule, and to take all steps necessary to meet it. |
| Sep 17 2002 | Counsel's status report received (confidential) |
| Sep 17 2002 | Request for extension of time filed To file appellant's opening brief. (12th request) |
| Sep 19 2002 | Extension of time granted To 11/19/2002 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling about 195 additional days will be granted. Counsel is ordered to or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 13 2002 | Request for extension of time filed To file appellant's opening brief. (13th request) |
| Nov 18 2002 | Extension of time granted To 1/21/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 135 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Jan 16 2003 | Request for extension of time filed to file appellant's opening brief. (14th request) |
| Jan 22 2003 | Extension of time granted to 3/24/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 75 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Mar 14 2003 | Request for extension of time filed to file appellant's opening brief. (15th request) |
| Mar 18 2003 | Extension of time granted to 5/23/2003 to file appellant's opening brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 7/1/2003. |
| May 20 2003 | Request for extension of time filed to file appellant's opening brief. (16th request) |
| May 22 2003 | Extension of time granted to 7/2/2003 to file appellant's opening brief. After that date, only one further extension totaling about 55 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticiaptes filing that brief by 8/26/2003. |
| Jun 23 2003 | Filed: Notice of change in telephone and fax numbers for appellant's counsel, Bruce Cohen. |
| Jun 27 2003 | Request for extension of time filed to file appellant's opening brief. (17th request) |
| Jul 2 2003 | Extension of time granted to 9/2/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 10/27/2003. |
| Aug 21 2003 | Request for extension of time filed to file appellant's opening brief. (18th request) |
| Aug 25 2003 | Extension of time granted to 11/3/2003 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 12/31/2003. |
| Oct 31 2003 | Request for extension of time filed to file appellant's opening brief. (19th request) |
| Nov 12 2003 | Extension of time granted to 1/2/2004 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days will be granted. Extension is gratned based upon counsel Eric Cohen's representation that he anticipates filing that brief by 2/29/2004. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it. |
| Nov 20 2003 | Counsel's status report received (confidential) |
| Nov 25 2003 | Compensation awarded counsel Atty Cohen |
| Dec 30 2003 | Request for extension of time filed to file appellant's opening brief. (20th request) |
| Jan 6 2004 | Extension of time granted to 3-2-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing the brief by 3-2-2004. |
| Feb 27 2004 | Request for extension of time filed to file appellant's opening brief. (21st request) |
| Mar 4 2004 | Extension of time granted to 4/1/2004 to file appellant's opening brief. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 4/1/2004. After that date, no further extension will be granted. |
| Mar 22 2004 | Counsel's status report received (confidential) |
| Mar 30 2004 | Request for extension of time filed to file AOB. (22nd request) |
| Apr 5 2004 | Extension of time granted to 5/3/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 5/1/2004. |
| Apr 30 2004 | Request for extension of time filed to file appellant's opening brief. (23rd request) |
| May 4 2004 | Compensation awarded counsel Atty Cohen |
| May 7 2004 | Extension of time granted to 6-2-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing the brief by 6-2-2004. |
| Jun 1 2004 | Request for extension of time filed to file appellant's opening brief. (24th request) |
| Jun 4 2004 | Extension of time granted to 6/17/2004 to file appellant's opening brief. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 6/17/2004. After that date, no further extension will be granted. |
| Jun 11 2004 | Filed: appellant's application for permission to file overlength AOB. (brief submitted under separate cover) |
| Jun 11 2004 | Counsel's status report received (confidential) |
| Jun 14 2004 | Order filed Appellant's application for permission to file an overlength appellant's brief is granted. |
| Jun 14 2004 | Appellant's opening brief filed (99,788 words - 489 pp.) |
| Jun 14 2004 | Filed: Declaration of attorney Bruce Eric Cohen (confidential). |
| Jun 15 2004 | Compensation awarded counsel Atty Cohn |
| Jul 14 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| Jul 21 2004 | Extension of time granted to 9/13/2004 to file respondent's brief. After that date, only five further extensions totaling about 300 additional days are contemplated. Extension is granted based upon Deputy Attorney General David Andrew Eldridge's representation that he anticipates filing that brief by 7/15/2005. |
| Aug 23 2004 | Counsel's status report received (confidential) |
| Sep 3 2004 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Sep 9 2004 | Extension of time granted to 11/12/2004 to file respondent's brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Deputy Attorney General David Andrew Eldridge's representation that he anticipates filing that brief by 7/15/2005. |
| Nov 4 2004 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Nov 10 2004 | Extension of time granted to 1/14/2005 to file respondent's brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy Attorney General David Andrew Eldridge's representation that he anticipates filing that brief by 7/15/2005. |
| Jan 5 2005 | Request for extension of time filed to file respondent's brief. (4th request) |
| Jan 12 2005 | Extension of time granted to March 15, 2005 to file the respondent's brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy Attorney General David Andrew Eldridge's representation that he anticipates filing that brief by July 15, 2005. |
| Mar 8 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
| Mar 14 2005 | Extension of time granted to 5/16/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General David Andrew Eldridge's representation that he anticipates filing that brief by 7/15/2005. |
| Mar 16 2005 | Counsel's status report received (confidential) |
| Mar 22 2005 | Counsel's status report received (confidential) (supplemental) |
| May 9 2005 | Request for extension of time filed to file respondent's brief. (6th request) |
| May 12 2005 | Extension of time granted to 7/15/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General David Andrew Eldridge's representation that he anticipates filing that brief by 7/15/2005. After that date, no further extension is contemplated. |
| May 27 2005 | Counsel's status report received (confidential) |
| Jul 15 2005 | Respondent's brief filed (51,188 words; 168 pp.) |
| Jul 20 2005 | Filed: Notice of errata to respondent's brief. |
| Aug 2 2005 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Aug 4 2005 | Extension of time granted to 10/3/2005 to file appellant's reply brief. After that date, only five further extensions totaling about 270 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 6/30/2006. |
| Aug 9 2005 | Counsel's status report received (confidential) from atty Cohen. |
| Sep 29 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Oct 3 2005 | Extension of time granted to 12/2/2005 to file appellant's reply brief. After that date, only four further extensions totaling about 210 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 6/30/2006. |
| Nov 30 2005 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Dec 2 2005 | Extension of time granted to 1/31/2006 to file the appellant's reply brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 6/30/2006. |
| Jan 9 2006 | Counsel's status report received (confidential) |
| Jan 30 2006 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Feb 3 2006 | Extension of time granted to 4/3/2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by 6/30/2006. |
| Feb 8 2006 | Compensation awarded counsel Atty Cohen |
| Apr 3 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Apr 7 2006 | Extension of time granted to June 2, 2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by September 29, 2006. |
| May 2 2006 | Counsel's status report received (confidential) |
| Jun 1 2006 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Jun 6 2006 | Extension of time granted to August 1, 2006 to file the appellant's reply brief. After that date, only three further extensions totaling about 150 additional days will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by December 29, 2006. |
| Jul 31 2006 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Aug 2 2006 | Extension of time granted to October 2, 2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 90 additional days are contemplated. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by December 29, 2006. |
| Aug 22 2006 | Motion to withdraw as counsel filed by Bruce Eric Cohen as habeas counsel while remaining appellate counsel. |
| Aug 28 2006 | Filed: by counsel Cohen, "supplemental declaration in support of motion to withdraw as habeas corpus counsel". |
| Sep 29 2006 | Request for extension of time filed to file appellant's reply brief. (8th request) |
| Oct 5 2006 | Extension of time granted to December 1, 2006 to file the appellant's reply brief. After that date, only one further extension totaling about 30 additional days are contemplated. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by December 29, 2006. |
| Oct 11 2006 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed counsel for permission to withdraw as habeas corpus/executive clemency attorney of record for appellant Morris Solomon, Jr., filed August 22, 2006 (supp. declaration filed Aug. 28, 2006), is granted. The order appointing Bruce E. Cohen as appellate and habeas corpus counsel of record for record for appellant Morris Solomon, Jr., in the above automatic appeal now pending in this court, filed April 23, 1997, is hereby vacated as to the habeas corpus/executive clemency representation. Cohen continues to be responsible for all remaining appellate duties set forth in Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3, standards 1-1 and 2-1. Michael G. Millman, as Executive Director of the California Appellate Project in San Francisco, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant. Morris Solomon, Jr. Cohen is hereby directed to deliver to Executive Director Millman, within 60 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, 60-day status reports, and all related materials that he has obtained from appellant or his trial counsel, paralegals, experts and investigators, or from any other source. |
| Nov 28 2006 | Request for extension of time filed to file appellant's reply brief. (9th request) |
| Nov 29 2006 | Counsel's status report received (confidential) from atty Cohen. |
| Dec 1 2006 | Extension of time granted to January 31, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by January 31, 2007. |
| Jan 29 2007 | Request for extension of time filed to file appellant's reply brief. (10th request) |
| Feb 2 2007 | Extension of time granted to April 2, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by April 2, 2007. |
| Apr 2 2007 | Request for extension of time filed to file appellant's reply brief. (11th request) |
| Apr 5 2007 | Extension of time granted to April 30, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Bruce Eric Cohen's representation that he anticipates filing that brief by April 30, 2007. |
| Apr 30 2007 | Application to file over-length brief filed to file appellant's reply brief. (69,417 word brief submitted under separate cover; 294 pp.) |
| May 2 2007 | Order filed Appellant's "Application for Permission to File Overlength Reply Brief" is granted. |
| May 2 2007 | Appellant's reply brief filed by attorney Bruce Cohen. (69,417 words; 294 pp.) |
| May 10 2007 | Compensation awarded counsel Atty Cohen |
| Dec 30 2009 | Exhibit(s) lodged People's exhibits, nos. 23, 114, 168, 168-A, 225 and 298. |
| Mar 3 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the first May calendar, to be held the week of May 3, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| Mar 30 2010 | Case ordered on calendar to be argued on Tuesday, May 4, 2010, at 1:30 p.m., in San Francisco |
| Apr 7 2010 | Received: appearance sheet from Deputy Attorney General David Andrew Eldridge, indicating 45 minutes for oral argument for respondent. |
| Apr 12 2010 | Received: appearance sheet from Attorney at Law Bruce Cohen, requesting 45 minutes for oral argument for appellant. |
| Apr 12 2010 | Filed: appellant's focus issues letter, dated April 12, 2010. |
| Apr 13 2010 | Change of contact information filed for: Bruce Eric Cohen, Attorney at Law. |
| Apr 22 2010 | Received: respondent's additional authorities letter, dated April 20, 2010. |
| Apr 22 2010 | Filed: respondent's focus issues letter, dated April 22, 2010. |
| Apr 28 2010 | Letter sent to: each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument." |
| Apr 29 2010 | Stipulation filed Stipulation by counsel Bruce Cohen, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| Apr 30 2010 | Stipulation filed Stipulation by counsel David Andrew Eldridge, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 4 2010 | Cause argued and submitted |
| May 12 2010 | Compensation awarded counsel Atty Cohen |
| Briefs | |
| Jun 14 2004 | Appellant's opening brief filed |
| Jul 15 2005 | Respondent's brief filed |
| May 2 2007 | Appellant's reply brief filed |
| Brief Downloads | |
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| Oct 30, 2010 Annotated by hlommersjohnson | FACTS Between 1986 and 1987 the bodies of seven prostitutes were found in several different locations in Sacramento. The defendant, Solomon, was first questioned by the police in connection with one of these murders in June of 1986, when he alerted the police that he had found a body in a closet in a house he had been helping remodel. The defendant falsely identified himself initially and various contradictory statements to the police including that he did not know the victim, but he was not arrested. It was later discovered that the victim was a local prostitute named Yolanda that the defendant had been looking for the night before she disappeared. When her body was found her limbs showed signs of having been bound and she showed signs of asphyxiation. The defendant was questioned for a second time in connection with these murders in March of 1987, when the body of a prostitute named Maria was found buried in the yard of the defendant’s old residence. She was also bound and showed signs of asphyxiation. Later, the body of a woman named Sharon was found in the same yard. She was found with a sock in her throat and was bound with electrical cord. When the defendant was re-interviewed a month later, the defendant consented to a search of his car, which was located at another of his previous residences. While searching the police noticed an indentation in the yard where the car was parked and uncovered the body of a prostitute named Cherie. She was not bound, and it was unclear how she died. The defendant was arrested two days later when two more bodies, belonging to women named Linda and Sheila, were found at another of his previous residences. Linda was found bound with electrical cord, but there was no clear sign of what had caused her death. Sheila was found bound with duct tape and with a sock in her mouth. The defendant had lived or worked at each location where the six bodies were found. It was uncovered that he knew most of the women, and had been connected with many of them through sexual relationships, solicitation of sex, and drug use. After the defendant was charged with seven counts of murder, multiple other women came forward and testified that he had sexually assaulted them. Many of the women reported that he bound and gagged her in a way that is similar to the bodies that were found, and one had had a sock forced into her mouth, similar to two of the murder victims. The defendant had a disturbed childhood. His mother was a “loose” woman, so he had to be raised by his grandmother who beat him from a very young age. She would regularly make him strip and beat him with electrical cords, sometimes tying him to the bed with electrical cords. Despite this, the defendant was described as an upstanding citizen up until the time he went to Vietnam. While there he risked his life to save several of his fellow soldiers and his sergeant, however he also developed a habit of using prostitutes. When returned from Vietnam the defendant had trouble keeping a job and developed a cocaine addiction. PROCEDURAL HISTORY The defendant was convicted by jury in Superior Court of four counts of first-degree murder, 2 counts of second-degree murder, and two counts of sexual assault. He was also found guilty of a multiple-murder special circumstance allegation. After the guilt phase of the trial, the jury deadlocked at the penalty phase of the trial and a new jury had to be formed. In the second penalty phase trial, the new jury sentenced the defendant to death. The case came to the California Supreme Court on automatic appeal from a death sentence. ISSUES Penalty Phase Issues: HOLDING The California Supreme Court dismissed each of the issues raised by the defendant, affirming the conviction and the judgment of death. ANALYSIS The Court first considered whether prejudicial error had occurred in the guilt phase of the trial: The standard of review for this issue, both in cases like this that are based primarily on circumstantial evidence and in others, is whether a reasonable jury could have reasonably found sufficient evidence for premeditation and deliberation in the record. People v. Thomas, 2 Cal.4th 489, 514 (1992). Here, the Court determined that there was. The Court stated that, contrary to the defendant’s contentions, there is no time requirement necessary for a finding of premeditation or deliberation. Rather, the test is whether reflection occurred, specifically, thought in advance of the act (premeditation) and a weighing of considerations in determining course of action (deliberation). Id. The Court identified two methods by which a reasonable jury could have found sufficient evidence of premeditation and deliberation. First, these inferences can be drawn from a pattern of killing, where there are factors common to each victim. People v. Diaz, 3 Cal.4th 495, 529-538 (1992). The Court describes that the victims in this case were all prostitutes, a group which the defendant regularly spoke about with “expressions of enmity,” suggesting a motive to kill in each case. Additionally, nearly all of the victims were both bound and showed signs of asphyxiation. Second, the Court pointed to the evidence of premeditation and deliberation present in each of the four murders, individually. The Court found sufficient evidence with regard to each victim, including facts such as the defendant’s enmity for prostitutes, a personal grudge against one victim, binding and asphyxiation of many of the victims (acts which the Court says take enough time to where the defendant reasonably could have had time “to consider the murderous nature of his actions”). 2. Was it error to admit the defendant’s post-arrest statements? The defendant argued that it was more prejudicial than probative to admit a recording of his post-arrest statements because based on the interrogator’s strategic pattern of questions, the defendant’s statements may have been construed to sound like he admitted to strangling a girl to death. However, the Court found that the defendant forfeited his objection to the admission of the recording because his counsel failed to object to it at trial. Additionally the Court noted that even if he had preserved his challenge to the recording, no reasonable jury would have drawn the inference that he admitted to strangling a girl, and thus the recording was not more prejudicial than probative. 3. Was there error in the guilt phase jury instructions? In considering each of the defendant’s objections to jury instructions, the Court applied the rule that the correctness of the jury instructions should be determined as a whole and no part should be analyzed without taking into consideration the rest of the instructions, and the light that they may shed on the specific part. People v. Carrington, 47 Cal.4th 145, 192 (2009). First, the defendant argued that the instruction on juror note-taking infringed his rights because it could have been taken to mean that jurors could only rehear testimony if there was a discrepancy between the different jurors’ notes. The Court found this argument “completely unsupported,” especially because there was an additional jury instruction given regarding jurors’ right to request to rehear testimony at any time. Second, the defendant objected to a jury instruction on circumstantial evidence that instructed jurors to accept the interpretation of evidence most consistent with innocence when deciding between two reasonable interpretations of circumstantial evidence. He contended that this instruction undermined the requirement of proof beyond a reasonable doubt and that it should have referenced direct evidence as well. The Court disagreed because both circumstantial and direct evidence alone are sufficient for a finding of guilt, and because another of the instructions reminded jurors that if they have any reasonable doubt, they must vote not guilty. Third, the defendant argued that an instruction that “the presence of motive may tend to establish guilt” wrongly shifted the burden of proof to the defendant. The Court cited precedent that this instruction does not shift, and also dismissed the defendant’s argument that the precedent did not apply to a case based on circumstantial evidence. People v. Cleveland, 32 Cal.4th 704, 750 (2004). Fourth, the defendant objected to an instruction that the jury can reject the entire testimony of a witness if they believe that the witness willfully testified falsely, unless the probability of truth favors other portions of the testimony. The Court dismissed the objection in light of precedent that previously rejected this argument. People v. Nakahara, 30 Cal.4th 705, 714 (2003). Fifth, the defendant argued that an instruction on the duty to present evidence wrongly suggested that the defendant also bore a burden of proof. The Court dismissed this argument and cited precedent addressing this exact argument. People v. Daniels, 52 Cal.3d 815 (1991). 4. Was it prosecutorial misconduct when the prosecutor stated that asphyxiation “does not occur in the flick of an eye,” suggesting that a finding of premeditation and deliberation could be drawn directly from the asphyxiation of the victims? The Court ruled that this statement by the prosecutor did not misstate the law and did not present erroneous theories regarding how the evidence supported a finding of premeditation and deliberation. The Court also noted that the defendant had forfeited his challenge to these statements because of his counsel’s failure to object at trial. Next, the Court considered the defendant’s objections to the penalty phase of the trial: First, the defendant argues that the excusal for cause of two of the five jurors that the prosecution rejected because of their views on the death penalty violated his right to due process, impartial jury and reliable penalty determination. However, the Court notes that there is precedent stating that a trial court can excuse a potential juror if it determines that juror’s views for or against capital punishment will “prevent or substantially impair the performance of his [or her] duties as a juror.” People v. Martinez, 47 Cal.4th 399, 425 (2009). The Court deferred to the trial court’s determinations on the jurors. Specifically, with regard to prospective juror C.G., the trial court found that C.G.’s responses, including a significant pause before answering, indicated that she would be unable to return a verdict of death, regardless of the evidence. The Court disagreed with the defendant’s contention that a long pause was improper basis for excusal of a juror, and determined that in the circumstances and combined with C.G.’s other uncertain responses about the death penalty, it was reasonable. With regard to prospective juror S.C., the trial court determined that even though she stated she supported the death penalty, her responses demonstrated that her ability to consider death as a possible punishment was “substantially impaired.” The Court deferred to the trial court’s determination of S.C.’s state of mind and her inability to impose the death penalty, and determined that supporting the death penalty, but being unable to personally impose it is sufficient reason for excusal for cause. Second, the defendant contends that it was error for the trial judge to reject his proposed questions for voir dire that would have established whether jurors were able to consider his actions individually or whether his history of sexual assaults would have led them to automatically favor a sentence of death. The trial court decided that jurors could be questioned regarding general circumstances related to the crime, but not factors that might be aggravators (such as repeated sexual violence). The Supreme Court reviewed the issue for abuse of discretion in accordance with precedent on death-qualification voir dire standard of review. Witherspoon v. Illinois, 391 U.S. 510 (1968). The Court determined that there was no abuse of discretion here and that the trial court had correctly declined to allow questions that involved specifics of the crime in line with precedent. People v. Clark, 50 Cal.3d 583, 597 (1990). 2. Was it error to admit photographs of the victims’ bodies? The defendant contends that the admission of these photographs violated Evidence Code Sections 350 and 352, and that the admission was not more probative than prejudicial. The Court reviewed the admission for abuse of discretion considering two factors proscribed by precedent: “(1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in finding that the probative value of each photograph outweighed its prejudicial effect.” People v. Whisenhunt, 44 Cal.4th 174, 211-212 (2008). The Court determined that the pictures of the decomposing bodies were relevant to the circumstances of the crime and that in capitol cases especially, “the prosecution has the right to establish the circumstances of the crime, including its gruesome consequences....” People v. Bonilla (2007) 41 Cal.4th 313, 353. Therefore, the trial court made no error in ruling that the photographs were more probative than prejudicial and admitting them. 3. Does California’s application of the death penalty violate the Constitution? The Court routinely rejected each of the defendant’s objections to the death penalty with brief citations of precedent. TAGS Death penalty, homicide, sexual assault, multiple-murder, first-degree murder, mitigating factors, childhood abuse, premeditation and deliberation, pattern of killing, death qualification, admission of defendant's statements, circumstantial evidence, burden of proof, false testimony, prosecutorial misconduct, jury instructions, jury selection, excusal for cause, voir dire, abuse of discretion, photographic evidence, prejudicial vs. probative. KEY RELATED CASES Hannah Lommers-Johnson |
