Supreme Court of California Justia
Docket No. S028970
People v. Stitely

Filed 3/21/05



Plaintiff and Respondent,



Los Angeles County


Super. Ct. No. PA002330

Defendant and Appellant.

A jury convicted Richard Stitely (defendant) of the first degree murder of

Carol Unger. (Pen. Code, § 187, subd. (a).)1 A related special circumstance of

murder during the commission of unlawful sodomy was found true. (§ 190.2,

subd. (a)(17)(D).) The jury also convicted defendant of the separate crime of

forcible rape against Valery C. (§ 261, subd. (a)(2).)

After a penalty trial, the jury returned a death verdict. The trial court

declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to

death for the sodomy murder. The court also imposed and stayed a determinate

term on the noncapital rape count. This appeal is automatic. (Cal. Const., art. VI,

§ 11, subd. (a); § 1239, subd. (b).)


All unlabeled statutory references are to the Penal Code.


We find no prejudicial error at defendant’s trial. The judgment will be

affirmed in its entirety.


A. Murder of Carol Unger and Related Sex Crimes

1. Carols Disappearance

Carol Unger and her husband, Delbert, frequented the White Oak Inn, a bar

located near their home.2 They went there both together and separately. The

couple had one child, Joey, during their marriage. Carol had other children from a

prior relationship, including her son Billy.

At 8:30 p.m. on January 19, 1990, Billy called Delbert, who was alone at

the White Oak Inn. Delbert left the bar, and went to a restaurant with Billy. They

came home at 11:00 p.m. Joey was there, but Carol was gone. Delbert stayed

awake until 1:00 a.m. He heard nothing strange outside the house, which was well

lit in front by a streetlight.

Meanwhile, beginning at 9:30 the same night, several witnesses saw Carol

at the White Oak Inn.3 Defendant, a semi-regular patron, was there too. Carol sat

at the bar, and defendant sat at a table. According to both the bartender, Anthony

Russo, and the waitress, Hazel Parrott, Carol and defendant each drank two or

three beers. Neither seemed intoxicated.

Another regular patron, Shirley Cooper, saw Carol ask two or three men,

including defendant, to dance with her. Carol often danced with men who

frequented the bar, even when her husband was present. After one dance,


All events mentioned at the guilt phase occurred in the San Fernando

Valley area of Los Angeles County.


Delbert testified that Carol routinely traveled to the bar by taxi and carried a

large wallet or small clutch purse.


defendant returned to his table and Carol sat on a bar stool. Cooper then saw

defendant looking or staring at Carol.

Carol eventually asked the bartender, Russo, to call a taxi because she

wanted “to go home.” Defendant intervened by offering her a ride and asking

where she lived. She accepted the offer, and canceled her cab request. At some

point, Carol asked Russo whether he knew defendant well. Russo said “no,” but

saw no reason to decline the ride. By all accounts, Carol and defendant left the bar

together around midnight. This was the last time she was seen alive.

When Carol failed to return home, Delbert called and visited the White Oak

Inn. He also reported her missing to police.

2. Discovery of Carols Body

Around 11:00 a.m. on January 20, 1990, the day after Carol left the bar

with defendant, Edward Berg found her body in an alley behind his workplace. It

was lying partially underneath the corner of Berg’s company van. He called the

police. The police found no purse or wallet. They identified Carol through

Delbert’s report.

Detective John Coffey and a coroner’s investigator, Debrah Kitchings,

described the scene, as follows: Carol was lying on her back with her legs spread

apart, naked from the waist down. Her jeans and underpants were gathered around

one ankle, her shirt was bunched at the breast line, and her jacket was resting

underneath the hip area. Carol’s numerous injuries included scrape marks on the

back and choke marks on the neck. Pieces of foam rubber were found on her neck

and head, in her underwear, and on the ground. It appeared Carol had been

sexually assaulted, dragged into the alley, and dumped under the van.

3. Medical Testimony about Carols Injuries

Dr. Joseph Cogan, who performed the autopsy, testified that Carol was

strangled to death based on the following premortem injuries: Blood congestion


and petechial hemorrhages in the jaw and face showed that pressure had been

applied to the neck, and that circulation had stopped to the head, for a “long” time.

Internal hemorrhaging from blunt force trauma appeared on both sides of the neck

and around the eyes and ears. Carol’s thyroid cartilage, or Adam’s apple, was

fractured — an injury consistent with manual strangulation. However, the

fracturing of the cricoid cartilage, which sits deeper in the neck, required greater

pressure from a choke-hold maneuver. Dr. Cogan also linked certain marks on the

front of Carol’s neck to a ligature pulled from behind.

Regarding nonlethal injuries, Dr. Cogan testified that two cuts on Carol’s

left hand were caused by a sharp instrument, and were consistent with defensive

knife wounds. He also described abrasions and bruises on the extremities, two

round marks or burns on the head, and bruising on the scalp. The skin on Carol’s

back had been scraped or dragged on a hard surface both before and after death.

Dr. Cogan found multiple signs of sexual activity. There were two tears in

the anal opening, as well as tears, contusions, and hemorrhaging inside the anal

cavity. The anal injuries were inflicted before death, were caused by blunt force

trauma, and were consistent with penile penetration. Dr. Cogan found no vaginal

tears. Because the vaginal opening was “marital,” the lack of tearing was not

inconsistent with forcible penetration. Some darkening or reddening of the labia

could have been a contusion.

Investigator Kitchings testified that she saw “trauma” in Carol’s vaginal

and anal areas at the crime scene. Kitchings also estimated the time of death by

comparing air and liver temperatures at 3:30 p.m. on January 20, 1990, a few

hours after Carol was found. She had most likely been dead for 15 hours (i.e.,

since 12:30 a.m. on January 20, 1990). However, she could have died anywhere

from 12 to 20 hours earlier (i.e., between 7:30 p.m. on January 19, 1990 and 3:30

a.m. on January 20, 1990).


The evidence included an autopsy report and attached toxicology report.

The parties stipulated that Carol’s toxicology tests revealed a .26 percent blood-

alcohol content, a result indicating intoxication.

4. Physical Evidence and Forensic Tests

As discussed below, the police found torn seat cushions and foam debris

during a search of defendant’s car. Criminalist Susan Johnson testified that there

was no difference in color, chemical composition, or cellular structure between the

foam found on Carol’s body and the foam seized from defendant’s car. The origin

could have been the same.

Criminalist Lloyd Mahanay made cotton swabs and microscope slides of

the fluids in Carol’s vagina and anus. Though he did not personally conduct such

tests, he opined that any sperm found on these items would reflect ejaculation into

each orifice. Mahanay ruled out the possibility that semen from the vagina could

have contaminated the anal swab, or that ejaculation on or in the vagina could

have leaked into the anus.

Serologist Alison Ochiae testified that Carol had type O blood, and that

defendant was a type A secretor. A secretor is one whose blood type appears in

other bodily fluids. Ochiae found sperm on the vaginal swabs and anal slides that

Criminalist Mahanay had prepared. Using the ABO method, Ochiae identified

defendant as a possible sperm donor. She also linked him to a stain on Carol’s


The parties stipulated that Criminalist Mark Taylor performed DNA tests

that could conclusively match the genetic materials in semen with the genetic

materials in blood. The DNA pattern found on Carol’s vaginal and anal swabs

matched the DNA pattern obtained from defendant.

5. Defendants Statements to Police

Based on information obtained at the White Oak Inn and other bars,


detectives learned that defendant worked at a radiator repair shop. On February 2,

1990, Detective Coffey and his partner visited defendant at work. He agreed to

accompany them to the police station. When Detective Coffey peered inside

defendant’s station wagon, he saw torn seats and foam debris similar to the foam

found on Carol’s body. Police impounded the car. They later searched it with

defendant’s consent.

Defendant received and waived his constitutional rights during the ride to

the police station. Detective Coffey questioned defendant at the station, assisted

by Detective Medina. Coffey recorded the interview without defendant’s

knowledge. The jury heard the interview, and received the transcript.

Defendant first told detectives that he last visited the White Oak Inn on

January 26, 1990, and had not been there in the preceding two months. Though he

often went to bars on Friday nights, defendant recalled staying home on Friday,

January 19, 1990, to save money. He denied knowing Carol. Detective Coffey

asked about Valery C., a teenager who stayed with defendant and his daughter.

Defendant said that Valery had falsely accused him of rape because he told her to

pay rent or move.

Detective Coffey said that witnesses saw Carol leave the bar with defendant

on January 19, 1990. Defendant then admitted that he drove her home. He

recalled seeing both a red van and a shadowy figure outside her house.4

Supposedly, as Carol left the car, she took a steak knife from her purse. Though

defendant was scared, Carol did not threaten him with the knife, and instead


According to Carol’s husband, Delbert, a burgundy truck and green car

were parked in the driveway the night Carol died. Neither his family nor any of
their immediate neighbors owned a red van.


mentioned her “old man.”5 Defendant claimed he sped away, and that nothing

sexual or violent happened. He initially lied because he did not want to upset

Carol’s husband.

Detective Coffey theorized that Carol died during a fight with defendant.

Defendant said he might “stop talking,” and Coffey reaffirmed his right to do so.

Nevertheless, defendant continued to assert his innocence, saying, “The only thing

you can prove is I took her out of that bar, man.” Defendant denied any fight. He

repeated that Carol “didn’t threaten” him with the knife or otherwise seem

interested in “using” it on him.6

Detective Coffey remarked that debris in Carol’s hair looked like debris in

defendant’s car. Defendant then conceded a struggle, giving the following

account: When they got to her house, Carol — who was “drunker than hell” —

asked to visit another bar. Defendant refused because he needed to go home.

Defendant saw someone exit the house, and watched Carol draw the knife from

her purse. She exited and reentered the car. He sped away at her request. Carol

again asked to go to another bar. Defendant stopped the car. Scared and unsure of

her intent, he squeezed her hand to expel the knife. She tried to bite him, and he

grabbed her hair. Carol opened the door. Defendant kicked her in the face,

ejecting her from the car. He did not strangle or kill her.


Delbert never saw a knife in Carol’s possession at the bar or heard her talk

about carrying one. Other witnesses gave similar testimony, namely, Russo, the
bartender, and Cooper, a regular bar patron. Investigators found no knife in
defendant’s car or near Carol’s body.


At this point in the interview on February 2, 1990, defendant signed a form

authorizing a search of his home and car. A short time later, however, he revealed
that he could not read or write. Detective Coffey then read the consent form to
defendant. He said he understood and agreed with it. Defendant’s car was
searched, and the contents were seized, on February 5, 1990.


Detective Coffey told defendant he intended to test bodily fluids found at

the crime scene. Defendant then admitted having vaginal intercourse with Carol

in his car. Coffey asked whether the act was “mutual,” and defendant said,

“yeah.” He reportedly initiated the sexual encounter, and Carol mentioned the

lack of intimacy in her marriage. Defendant said he had previously withheld this

information because another “bitch,” Valery C., had falsely accused him of rape.

Defendant adamantly denied having anal sex with Carol.

Regarding Carol’s injuries, defendant acknowledged that he could have

unintentionally “caused her death.” However, he consistently maintained that he

kicked her only once — possibly hitting her neck, chest, and shoulder — and that

he never strangled or punched her.

Finally, at Detective Medina’s request, defendant clarified that the sex act

occurred after they left Carol’s house, while the knife was out of sight. They

subsequently fought because Carol — though drunk and “out of it” — wanted to

go to another bar, and he wanted to go home. In this final account, Carol held the

knife down by her side when defendant kicked her from the car. She said she

wanted to “hurt somebody.” However, she did not assault, threaten, or injure him

with the knife. Defendant claimed Carol was alive and clothed when he left her at

a spot different from where her body was found.7

B. Rape of Valery C.

The main witness on the noncapital rape count was the victim, Valery C.

Valery testified that in June 1989, she was 16 years old, and five and one-half


Two days later, on February 4, 1990, defendant contacted police from his

jail cell. When Detective Coffey alluded to their prior conversation, defendant
again denied raping or strangling Carol, or touching Valery C.


months pregnant. She had been evicted from her own apartment, and did not live

with her mother because they did not get along. Valery therefore accepted an

invitation from defendant’s daughter, S., to live with defendant and S. According

to Valery, defendant never told her to pay household expenses or to move out. He

slept on the couch, and the girls shared the lone bedroom.

Valery testified that on June 28, 1989, she returned to the apartment at 11:00

p.m. Defendant was in the front room. S. was gone. Valery entered the bedroom,

and closed the door. She put on a long button-down shirt and underwear, and got

into bed. This was the first time she and defendant were alone together.

According to Valery, the following events occurred: Defendant entered the

bedroom and shut the door. He climbed on top of Valery, who was underneath the

blankets. Scared and confused, she started to scream. Defendant grabbed her

throat with one hand and threatened to kill her if she did not keep quiet.

Defendant choked her for at least 20 seconds, causing her to cough when he

finally released his grip.

Valery continued: Defendant pinned Valery’s arm over her shoulder.

Saying she could not live there for free, defendant moved the blankets and

unbuttoned her shirt. He kissed her breasts, and placed his fingers into her vagina.

Defendant then lowered her underpants, unzipped his trousers, and penetrated her

vagina. Defendant ignored Valery’s plea to stop because of her unborn baby.

Instead, he withdrew his penis, placed Valery on her side, and then resumed

intercourse. After ejaculating, defendant left the room. He did not smell like

alcohol or seem intoxicated.

Valery buttoned her shirt and cleaned herself in the bathroom. When she

entered the living room, defendant apologized and said she could call the police.

She put on a pair of pants, and ran to meet her boyfriend in the park. Crying and

shaking, she told him what happened.


Almost immediately, at 11:45 p.m., Valery’s boyfriend called the police.

As reflected by the 911 recording admitted at trial, both Valery and her boyfriend

told the dispatcher about the rape. Valery testified that she also called her mother.

Valery continued her account: Valery and her mother promptly went to the

police station and reported the rape to a female officer. Later, at the hospital,

Valery declined an examination because no female doctor was available. The next

day, Valery discarded the button-down shirt because it repulsed her. She retrieved

her belongings from defendant’s apartment, and never returned to live there.

The investigating officer, Angela Hougen, testified that she saw no bruises

on Valery C. However, Valery was distraught at the police station, and became

more upset at the hospital while waiting for an exam.

C. Defense

Defendant presented no evidence at the guilt phase.


A. Prosecution Case

1. Other Violent Crimes

The evidence showed that defendant, who was 41 years old at the time of

the capital crime, committed prior violent crimes against his ex-wife and their two

daughters. Specifically, M., who was 20 years old at the time of trial, testified that

defendant adopted her as a child while married to her mother, Deborah.

According to M., defendant sodomized her in the family’s Texas home for three

and one-half years, starting when she was five years old. During this period,

defendant also sodomized his biological daughter S., who is two years younger

than M. The acts usually happened on Saturdays when Deborah ran errands with

her and defendant’s youngest child, R.

M. described a typical sexual encounter with her father as follows:

defendant told M. to undress in the bathroom, and to rub Vaseline in her anal area.


She complied out of fear. While M. either leaned on the toilet or lay on the floor,

defendant placed his penis in her anus. Defendant ignored M.’s pleas to stop even

though she bled and expressed pain. Afterwards, defendant told M. to clean

herself and to bring her younger sister, S., into the bathroom. M. then saw

defendant sodomize S., and heard S. scream. Defendant threatened to kill both the

girls and their mother if the sex acts were disclosed. He smelled like liquor, but

was not always drunk, when these acts occurred.

M. testified that in 1981, at age eight, she disclosed these acts first to the

babysitter and then to Deborah (the mother of M. and S.) M. also signed an

affidavit in Texas concerning the matter.

Deborah testified that she and defendant married in 1973, and divorced 10

years later. According to Deborah, defendant abused alcohol, and the pair often

fought. At different times, defendant assaulted Deborah by (1) pointing a gun at

her head and threatening to shoot her, (2) wielding a knife and threatening to stab

her, (3) grabbing scissors and lunging at her, and (4) striking her with a makeup

mirror and cutting her head. Each act occurred in front of the children.

Deborah testified that, while awaiting trial, defendant said, “[I]f they find

M., she’ll hang me.” Despite some initial doubts, Deborah believed defendant had

molested their daughters. She also described him as both smart and a good

provider. No one, including defendant, deserved execution in Deborah’s view.

2. Victim Impact Evidence

Delbert Unger described Carol as “his whole life.” He identified a

photograph of them together, which was admitted into evidence.

The pathologist, Dr. Cogan, testified that Carol was probably strangled for

several minutes or more before she died, and that she likely experienced both

cardiovascular and emotional distress. It took great force to break both neck

cartilages — trauma that would cause pain in a live person. Dr. Cogan explained


that a lit cigarette could have made the round marks or burns on Carol’s head, and

that most of the nonfatal injuries occurred while she was alive and susceptible to


B. Defense Case

1. Character Evidence

Three associates in the radiator repair business testified on defendant’s

behalf: (1) Wyatt Crawford, whose family employed defendant for 15 years in

Texas, (2) Richard Donohue, who employed defendant in California before the

capital crime, and (3) Eugene Pace, who employed defendant in California at the

time of the crime. These witnesses agreed that defendant was competent,

courteous, and reliable. His illiteracy did not affect his work. Defendant never

came to work impaired by alcohol. The parties stipulated that he quit the first

California job because others drank alcohol at work. When defendant was

arrested in Texas, his employer, the Crawford family, posted his bail.

2. Lack of Criminal Record

The parties stipulated that defendant had no prior felony or misdemeanor

convictions. Another stipulation addressed the acts of sodomy reported to police

in 1981 and described by M. at trial. A Texas grand jury considered the matter

shortly after it was reported and declined to proceed against defendant. The case

could have been refiled.

3. Good Conduct in Custody

Deputy Sheriff Rust testified that defendant behaved well in jail during the

capital trial. The parties stipulated that inmates imprisoned for life without the

possibility of parole (LWOP) receive the highest security available outside of

Death Row. If defendant remained discipline-free, he could teach auto repair and

earn privileges in prison.



A. Severance

Defendant claims the trial court erred in denying his motion to sever the

special circumstance murder of Carol from the forcible rape of Valery C. He

argues here, as below, that the prosecution improperly joined the two counts in

order to bolster weak circumstantial evidence that defendant murdered Carol in the

course of a sexual assault. A federal due process violation allegedly occurred. We


The trial court properly found that both offenses belonged to “the same

[assaultive] class.” (§ 954.) Joinder therefore was statutorily allowed. (Ibid.;

People v. Arias (1996) 13 Cal.4th 92, 126.) Defendant has never disputed this

threshold point.

Thus, defendant must show that a substantial danger of prejudice compelled

severance. (People v. Catlin (2001) 26 Cal.4th 81, 110.) We ask whether the

denial of severance was an abuse of discretion given the record before the trial

court. (People v. Davis (1995) 10 Cal.4th 463, 508.) A pretrial ruling that was

correct when made can be reversed on appeal only if joinder was so grossly unfair


As will become clear, this claim fails, in part, because of how the case was

pled and tried. As noted, a sodomy-murder special circumstance accompanied the
alleged murder. (§ 190.2, subd. (a)(17)(D).) The prosecution moved to amend the
information to allege a rape-murder special circumstance (id., subd. (a)(17)(C)),
but the trial court denied the motion as untimely. Hence, sodomy murder was the
sole special circumstance alleged and tried here. At trial, the prosecution sought a
first degree murder conviction on two theories: felony-murder in the commission
of rape, and premeditated murder. Sodomy could not be used to prove first degree
felony murder when the capital crime occurred. (See § 189, as amended by Prop.
115, approved by voters, Primary Elec. (June 5, 1990); People v. Hart (1999) 20
Cal.4th 546, 580, fn. 2; Tapia v. Superior Court (1991) 53 Cal.3d 282, 297-299.)
Hence, rape murder was the sole felony-murder theory of first degree murder.


as to deny due process. (People v. Arias, supra, 13 Cal.4th 92, 127; People v.

Johnson (1988) 47 Cal.3d 576, 590.)

Cross-admissibility is the crucial factor affecting prejudice. (People v.

Valdez (2004) 32 Cal.4th 73, 120.) If evidence of one crime would be admissible

in a separate trial of the other crime, prejudice is usually dispelled. (People v.

Bradford (1997) 15 Cal.4th 1229, 1315-1316.)

Invoking the law applicable at the time of his trial, defendant argues that

prior sex crimes may be used only for a relevant nondispositional purpose, like

identity (Evid. Code, § 1101, subd. (b)), and that the two joined counts are not

sufficiently “distinctive” to show that the same person who raped Valery C. also

attacked Carol. (People v. Ewoldt (1994) 7 Cal.4th 380, 403; but see Evid. Code,

§ 1108, subd. (a) [new posttrial statute providing that, in sex crime prosecutions,

§ 1101 does not bar defendant’s other sex crimes if such evidence is not barred

under § 352]; People v. Falsetta (1999) 21 Cal.4th 903, 911-912.) However, the

degree of similarity required to prove mental state is far less exacting. The two

acts need only be sufficiently similar to suggest that the defendant probably had

the same intent each time. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)

While the trial court avoided the issue, evidence at both the preliminary

hearing and trial that defendant choked and raped Valery C. suggested that he

acted with similar criminal intent while having sexual intercourse with Carol — a

victim who was also choked. (See People v. Carpenter (1997) 15 Cal.4th 312,

379 [not guilty plea disputes all elements of charged crime, including intent].)

Indeed, jurors could not convict defendant of first degree murder on a felony-

murder-rape theory unless they found “specific intent to commit rape” beyond a

reasonable doubt. (People v. Haley (2004) 34 Cal.4th 283, 314.) The chance that

defendant acted with innocent intent with Carol is sharply reduced by evidence


that he committed a forcible, nonconsensual sex act upon Valery C. a few months

earlier. (People v. Carpenter, supra, 15 Cal.4th at p. 379.)

Also, as the prosecutor stated in closing argument, the jury could

reasonably infer from Valery C.’s rape accusation that defendant killed Carol to

“cover up” the sexual assault, and to prevent her from reporting the crime as

Valery had done. This inference of a motive to kill, coupled with evidence that

Carol was last seen alive with defendant and that she died soon after they left the

bar, constituted circumstantial evidence that he intended, deliberated, and

premeditated her death for purposes of proving first degree murder. (People v.

Cummings (1993) 4 Cal.4th 1233, 1284.)

However, any lack of cross-admissibility is not, by itself, sufficient to show

prejudice and bar joinder. (§ 954.1; People v. Osband (1996) 13 Cal.4th 622,

667.)9 Here, the trial court considered other factors commonly used to assess

prejudice, including the likelihood of inflaming the jury, the strength of the

evidence, and the availability of the death penalty. (People v. Marshall (1997) 15

Cal.4th 1, 27-28.) The court rejected the notion that the noncapital count was

more “passionate” than the capital count, noting that the latter crime involved both

sexual violence and murder. The court also determined that circumstantial


Section 954.1 states, in part, that where “two or more different offenses of

the same class of crimes or offenses have been charged together in the same
accusatory pleading, . . . evidence concerning one offense or offenses need not be
admissible as to the other offense or offenses before the jointly charged offenses
may be tried together.” The voters adopted this statute in Proposition 115, which
took effect on June 6, 1990. Section 954.1 applies to trials held after its enactment
even where, as here, the charged crimes occurred before that time. (Tapia v.
Superior Court, supra
, 53 Cal.3d 282, 299-300.) Section 954.1 codified existing
case law (People v. Osband, supra, 13 Cal.4th 622, 667), and did not materially
change the rules of severance. (People v. Arias, supra, 13 Cal.4th 92, 126, fn. 7.)


evidence of defendant’s role in Carol’s murder seemed “pretty strong” compared

to Valery C.’s firsthand account of the rape.

This reasoning is persuasive. In short, defendant fails to demonstrate that

the denial of severance involved an abuse of discretion or caused gross unfairness

at his trial. As in other cases, we reject the claim. (E.g., People v. Marshall,

supra, 15 Cal.4th 1, 27-28 [noncapital sex crime properly joined with subsequent

similar capital crime]; People v. Davis, supra, 10 Cal.4th 463, 507-509 [same].)

B. Miranda Claim

Defendant argues that he invoked his privilege against self-incrimination by

suggesting he might “stop talking” to the police on February 2, 1990, and that

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) barred his subsequent

statements during the same interview. The trial court purportedly erred in denying

a motion to suppress such evidence. We disagree.

Evidence at the suppression hearing consisted primarily of Detective

Coffey’s testimony and the transcribed interview. The relevant facts are as

follows: Coffey and another officer met defendant at work, and said they were

investigating a homicide. Defendant was cordial and offered to help. He agreed

to talk at the police station, and voluntarily entered the police car for this purpose.

Defendant was not placed under arrest and was free to decline the ride.

Meanwhile, detectives impounded defendant’s car. He sat in the police car and

calmly watched the process.

The evidence further established that during the ride to the station, no

discussion about the criminal investigation occurred. However, in mentioning his

marital history in Texas, defendant referred to women as “bitches.” Concerned

that defendant might discuss the capital crime, Detective Coffey read defendant

his Miranda rights from an official card. Defendant said he understood his rights,

and agreed to waive each one. No other conversation occurred in the police car.


The record of the suppression hearing also showed that defendant received

no new Miranda warnings at the station. Officers placed him in an interview

room, activated the tape recorder, and asked questions. After defendant admitted

that he gave Carol a ride, Detective Coffey suggested that the pair fought. The

following exchange then occurred:

DEFENDANT: “Okay. I’ll tell you. I think its about time for me to stop



“You can stop talking. You can stop talking.”



“It’s up to you. Nobody ever forces you to talk. I told you

that. I read you all that (untranslatable).”

DEFENDANT: “Well, I mean (untranslatable) God damn accused of

something that I didn’t do. I’m telling you the truth. And you’re not believe [sic]

me. You’re not believing me. I’m telling you the truth.”


“Richard, the only problem is, I can prove otherwise. The

only reason I — listen to me.”

DEFENDANT: “The only thing you can prove is I took her out of that bar,

man. That’s all I did. That’s the only thing I’ve done.” (Italics added.)

Detective Coffey explained at the suppression hearing that if defendant had

decided to stop talking, the interview would have ended. Because defendant’s

statements were unclear in this regard, Coffey did not believe that questioning had

to stop. Nevertheless, in an abundance of caution, Coffey “reinforced” the notion

that defendant was free to exercise his right to silence.

After hearing argument on both sides, the trial court found no Miranda

violation and declined to suppress defendant’s statements. The court determined

that defendant voluntarily waived his Miranda rights before the interview. The


court also determined that he never stopped speaking freely with the police, and

that he declined the detective’s offer to do so.

To protect the Fifth Amendment privilege against self-incrimination, a

person undergoing a custodial interrogation must first be advised of his right to

remain silent, to the presence of counsel, and to appointed counsel, if indigent.

(Miranda, supra, 384 U.S. 436, 444, 467-473, 478-479.) As long as the suspect

knowingly and intelligently waives these rights, the police are free to interrogate

him. (Id. at pp. 444, 475, 479.) However, if, at any point in the interview, the

suspect invokes his rights, questioning must cease. (Id. at pp. 444-445, 473-474;

see Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [questioning cannot resume

until request for counsel is granted or suspect restarts interview].) Statements

obtained in violation of these rules are inadmissible to prove guilt in a criminal

case. (Miranda, supra, 384 U.S. at pp. 444, 476-477, 479; see People v. Sapp

(2003) 31 Cal.4th 240, 266; People v. Neal (2003) 31 Cal.4th 63, 79-80.)

In order to invoke the Fifth Amendment privilege after it has been waived,

and in order to halt police questioning after it has begun, the suspect “must

unambiguously” assert his right to silence or counsel. (Davis v. United States

(1994) 512 U.S. 452, 459 (Davis), italics added.) It is not enough for a reasonable

police officer to understand that the suspect might be invoking his rights. (Ibid.)

Faced with an ambiguous or equivocal statement, law enforcement officers are not

required under Miranda, supra, 384 U.S. 436, either to ask clarifying questions or

to cease questioning altogether. (Davis, supra, 512 U.S. at pp. 459-462.) Of

course, such an approach may disadvantage suspects who, for emotional or

intellectual reasons, have difficulty expressing themselves. (Id. at p. 460.)

However, a rule requiring a clear invocation of rights from someone who has

already received and waived them “avoid[s] difficulties of proof” (id. at p. 458),

and promotes “effective law enforcement.” (Id. at p. 461.)


As in prior cases, we follow Davis here. (People v. Gonzalez (2005) 34

Cal.4th 1111, 1125; People v. Michaels (2002) 28 Cal.4th 486, 510; People v.

Crittenden (1994) 9 Cal.4th 83, 129-130.) A reasonable officer in Detective

Coffey’s position would have concluded that defendant’s first remark (“I think it’s

about time for me to stop talking”) expressed apparent frustration, but did not end

the interview. Defendant agrees that this statement was ambiguous under Davis,

supra, 512 U.S. 452, and that the police were not required to stop asking questions

at that point. Nevertheless, Coffey did stop the interrogation, and twice reminded

defendant of his right to “stop talking.” This cautious approach gave defendant a

chance to clarify whether questioning should proceed — something defendant

concedes the officer was not constitutionally required to do.

Contrary to what defendant claims, he did not clarify his ambiguous

remarks or clearly invoke his constitutional privilege by saying “Okay.” This

nonsubstantive response merely implied that defendant understood what he had

just heard, and that he could “stop talking” if he so chose. Detective Coffey’s

subsequent comments also do not support defendant’s related claim that he was

badgered into resuming the interrogation. Consistent with his neutral stance

throughout the exchange, Coffey again reminded defendant that talking was

optional (“[i]t’s up to you”), and alluded to the prior Miranda warning (“I read

you all that”). However, instead of exercising the right to silence that Detective

Coffey purposefully “reinforced,” defendant protested his innocence and

continuing talking about the crime. Under the circumstances, nothing prevented

Coffey from continuing the exchange. We therefore uphold admission of the

entire police interview at trial.10


In People v. Michaels, supra, 28 Cal.4th 486, we found no Miranda

violation under strikingly similar facts. The defendant in Michaels waived his

(footnote continued on next page)


C. Death Qualification of Jurors

1. Sequestration Issues

Defendant insists the trial court erred by failing to conduct the entire death-

qualifying voir dire “individually and in sequestration” as set forth in Hovey v.

Superior Court (1980) 28 Cal.3d 1, 80 (Hovey). He claims violations of his

federal constitutional rights to due process and an impartial jury.

Before jury selection, and on its own motion, the trial court determined that

Hovey, supra, 28 Cal.3d 1, did not apply. This ruling was correct. Defendant’s

trial occurred after voters approved Proposition 115, which added new section 223

to the Code of Civil Procedure. (See Tapia v. Superior Court, supra, 53 Cal.3d

282, 299-300 [applying statute to proceedings held after Prop. 115 took effect on

June 6, 1990].) Then, as now, the statute provided that the voir dire of prospective

jurors in capital cases “shall, where practicable, occur in the presence of the other

jurors.” (Code Civ. Proc., § 223.)11 This provision had the intent and effect of

(footnote continued from previous page)

constitutional rights, and was asked to describe the capital crime. He hesitated,
saying “ ‘I don’t know if I should without an attorney.’ ” (Id. at p. 509, italics
omitted.) The interrogating officer replied that defendant could stop talking, and
that he did not have to answer any question he disliked. Defendant said, “ ‘Okay,
that one,’ ” and then confessed. (Ibid., italics omitted.) On appeal, defendant
argued that even if his reference to counsel was ambiguous, he clearly invoked his
right to silence by saying “Okay.” Applying Davis, supra, 512 U.S. 452, we
rejected the claim. The defendant in Michaels never clearly “assert[ed] a right to
refuse to answer any questions, ask[ed] that the questioning come to a halt, or
request[ed] counsel.” (People v. Michaels, supra, 28 Cal.4th at p. 510.) As noted
above, defendant’s remarks are no less equivocal in the present case.


At the time of trial, Code of Civil Procedure section 223 stated: “In a

criminal case, the court shall conduct the examination of prospective jurors.
However, the court may permit the parties, upon a showing of good cause, to

(footnote continued on next page)


abrogating the sequestration rule of Hovey, supra, 28 Cal.3d 1, which was not

constitutionally compelled. (See id. at p. 80 [invoking court’s “supervisory

authority over California criminal procedure”]; see also People v. Navarette

(2003) 30 Cal.4th 458, 490; People v. Slaughter (2002) 27 Cal.4th 1187, 1199;

People v. Box (2000) 23 Cal.4th 1153, 1180; People v. Waidla (2000) 22 Cal.4th

690, 713.) We reject defendant’s contrary claim.12

Defendant alternatively complains that to the extent the court decided that

group voir dire was “practicable” (Code Civ. Proc., § 223), it applied statutory law

in a manner that denied him due process and an impartial jury. Prospective jurors

allegedly gave monosyllabic, unconsidered, and parroted answers that concealed

their true views on capital punishment. The record does not support the claim.

(footnote continued from previous page)

supplement the examination by such further inquiry as it deems proper, or shall
itself submit to the prospective jurors upon such a showing, such additional
questions by the parties as it deems proper. Voir dire of any prospective jurors
shall, where practicable, occur in the presence of the other jurors in all criminal
cases, including death penalty cases.” (As added by Prop. 115, approved by
voters, Primary Elec. (June 5, 1990).) Effective January 1, 2001, the statute was
amended to give counsel for each party an expanded, though not unlimited, right
to examine prospective jurors through direct oral questioning. However, the
provision regarding group voir dire remained unchanged. (Code Civ. Proc., § 223,
as amended by Stats. 2000, ch. 192, § 1; People v. Stewart (2004) 33 Cal.4th 425,
455 & fns. 17 & 18.)

The Attorney General argues that defendant has forfeited his right to

complain about the lack of Hovey voir dire because he never sought individual
sequestered voir dire of the whole panel below. As noted, the trial court raised the
issue sua sponte to address the procedural changes made by Proposition 115. The
Attorney General cites no authority for his assumption that such a sua sponte
ruling is immune from appellate review. Thus, consistent with other similar cases,
we reject the Hovey claim solely on the merits. (See, e.g., People v. Navarette,
, 30 Cal.4th 458, 490; People v. Slaughter, supra, 27 Cal.4th 1187, 1199;
People v. Box, supra, 23 Cal.4th 1153, 1180.)


Initially, the trial court advised counsel of its intent to apply Code of Civil

Procedure section 223, and of the procedures that would be used. Thus, the court

said it would assume primary responsibility for conducting the oral examination,

and that counsel would be allowed to ask appropriate follow-up questions.

Prospective jurors, the court said, would be examined as a group in open court.

However, the court made clear that many questions, including some involving

capital punishment, would be asked at the bench on a select basis. Counsel were

told to “expect to approach the bench quite a bit,” because the court planned to ask

“sensitive” questions and to probe “exotic” answers in this private manner.

Prospective jurors completed a 25-page questionnaire, which they signed

under penalty of perjury. One section — six pages and 14 questions — concerned

capital punishment. To enhance questioning, the court gave counsel advance

copies of the questionnaires in the same order in which each prospective juror

would be orally examined. The court said it planned to make preparatory notes on

“every single one” of its copies of the questionnaires.

As promised, the court began death qualification by asking each

prospective juror, in open court, four questions similar to ones appearing on the

questionnaire. These questions sought to discover whether prospective jurors

would “automatically” vote for a certain penalty (Witherspoon v. Illinois (1968)
391 U.S. 510, 522, fn. 21 (Witherspoon), italics omitted), and whether their views

on capital punishment would “ ‘prevent or substantially impair’ ” the performance

of their duties in keeping with their oath and the court’s instructions. (Wainwright

v. Witt (1985) 469 U.S. 412, 424 (Witt) [clarifying the Witherspoon standard].)13


The court asked whether jurors, because of their views on capital

punishment, and notwithstanding the evidence in the case, would (1) refuse to
convict defendant of first degree murder to prevent a penalty trial, (2) refuse to

(footnote continued on next page)


Depending upon the answers given either orally or in writing, the trial court

often asked follow-up questions about the person’s views on capital punishment.

In many instances, such clarification occurred at the bench so that other

prospective jurors could not hear the exchange. The court permitted counsel to

ask additional questions, particularly as to matters discussed at the bench.

Based on these facts, and as a threshold matter, it appears the defense had

ample opportunity to object to the manner in which the trial court conducted group

voir dire under applicable statutory law, and to propose individual sequestered voir

dire as a solution to any perceived problems. Thus, as the Attorney General

maintains, defendant’s failure to raise any such complaint below forfeits the issue

on appeal. (People v. Vieira (March 7, 2005, S026040) __ Cal.4th __, __.)

The claim lacks merit in any event. Defendant is wrong insofar as he

implies that no individual, sequestered examination on capital punishment

occurred. We also cannot conclude that the trial court’s decision to ask questions

both in open court and at the bench produced meaningless, lockstep answers.

Indeed, these procedures enabled counsel on both sides to challenge certain

individuals for cause — sometimes successfully — based on their death penalty

views. Defendant provides no “specific example of how questioning prospective

jurors in the presence of other jurors prevented him from uncovering juror bias.”

(People v. Navarette, supra, 30 Cal.4th 458, 490.) Thus, consistent with other

post-Proposition 115 cases upholding similar limited sequestration procedures, we

(footnote continued from previous page)

find the special circumstance true to prevent a penalty trial, (3) automatically
refuse to vote for death and automatically vote for LWOP, and (4) automatically
refuse to vote for LWOP and automatically vote for death.


find no constitutional or other error. (E.g., People v. Waidla, supra, 22 Cal.4th

690, 713-714 [same trial judge and procedures as in present case].)

2. General Adequacy of Questioning

Defendant asserts that other deficiencies in death qualification prevented

him from adequately questioning prospective jurors, and deprived him of federal

due process guarantees. For instance, defense counsel objected to the “breakneck

speed” of voir dire, and asked the trial court to slow down by “about 15 percent.”

Defendant also claims the court made too few inquiries, as evidenced by its use of

four standard questions and by its rejection of two proposed defense questions.14

Defendant did not frame his complaints about the pace and scope of voir

dire below in terms of a due process violation. However, assuming without

deciding that this federal claim has been preserved (see People v. Yeoman (2003)

31 Cal.4th 93, 117-118, 133 (Yeoman) [federal constitutional claim not waived

when legal standard and relevant facts are essentially the same as state law claim

timely raised at trial]), no constitutional or other error occurred.

Recent decisions of this court have emphasized the importance of

meaningful death-qualifying voir dire. We have reminded trial courts of their duty

to know and follow proper procedure, and to devote sufficient time and effort to


Before jury selection, defendant urged the court to ask three additional

questions on (1) how prospective jurors would feel about unpleasant photographs
of the decedent, (2) whether death should always be the penalty for convicted
killers, and (3) whether LWOP is a fair punishment for convicted killers. The trial
court agreed to give a modified version of the first question, asking whether the
photos would affect jurors’ ability to be “fair.” However, the court concluded that
the other two questions were irrelevant and misleading because they did not
concern first degree special-circumstance killings, or address the jury’s duty to
consider and weigh the evidence. The court also decided that counsel’s questions
largely duplicated the written questionnaire and the planned oral examination.


the process. (See People v. Stewart, supra, 33 Cal.4th 425, 454-455; People v.

Heard (2003) 31 Cal.4th 946, 966-967.) At bottom, both the court and counsel

“must have sufficient information regarding the prospective juror’s state of mind

to permit a reliable determination as to whether the juror’s views [on capital

punishment] would ‘ “prevent or substantially impair” ’ the performance of his or

her duties.” (People v. Stewart, supra, 33 Cal.4th at p. 445.) Otherwise,

reversible error can occur. (E.g., id. at pp. 446-452 [over defense objection, court

erroneously excused five prospective jurors for cause based on inherently

ambiguous responses to legally flawed questionnaire]; People v. Heard, supra, 31

Cal.4th at pp. 964-966 [over defense objection, court erroneously excused one

prospective juror for cause based on ambiguous answers to imprecise and

incomplete oral examination].)

Nonetheless, the trial court has broad discretion over the number and nature

of questions about the death penalty. We have rejected complaints about “hasty”

(People v. Navarette, supra, 30 Cal.4th 458, 487-488) or “perfunctory” voir dire.

(People v. Hernandez (2003) 30 Cal.4th 835, 855.) We also have found no error

where the court relied heavily on three, four, or five general questions tracking

language from Witherspoon, supra, 391 U.S. 510, and Witt, supra, 469 U.S. 412,

424. (E.g., People v. Hernandez, supra, 30 Cal.4th at pp. 855-856; People v.

Navarette, supra, 30 Cal.4th at p. 487; People v. Cunningham (2001) 25 Cal.4th

926, 973-974; People v. Tuilaepa (1992) 4 Cal.4th 569, 586.) These cases found

voir dire to be adequate because the court and/or counsel asked additional

questions to clarify ambiguous responses and to reliably expose disqualifying bias.

Such is the case here. Both the court and counsel posed follow-up

questions where necessary to glean prospective jurors’ views on penalty.

Defendant cites no instance in which the trial court (1) erroneously retained a

prospective juror who should have been excused for cause, (2) erroneously


excused for cause a prospective juror who should have been retained, (3) decided

any challenge for cause absent sufficient information to do so, or (4) allowed a

biased juror to serve in the case. Hence, defendant has not shown that the pace or

scope of death qualification — including rejection of two defense questions —

constituted an abuse of discretion or violated his constitutional rights.


A. Sufficiency of the Evidence

Defendant claims insufficient evidence supports both first degree murder

theories presented at trial: (1) murder in the commission of forcible rape, and (2)

willful, deliberate, and premeditated murder. Federal due process guarantees

allegedly compel reversal of the murder count. We disagree.

1. Rape Murder

Defendant notes that he could be convicted of first degree murder under a

felony-murder-rape theory if he accomplished sexual intercourse against Carol’s

will by means of force or fear. (See § 261, subd. (a)(2); People v. Maury (2003)

30 Cal.4th 342, 403.) He insists the prosecution did not prove these elements

because there was no real injury to Carol’s vagina, and because he told detectives

that she consented to vaginal sex. However, viewing all of the evidence most

favorably to the judgment, we reject the claim. (People v. Johnson (1980) 26

Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307.)

The evidence suggested that defendant formed a sexual interest in Carol

inside the bar the night she was killed. After only one dance, defendant looked or

stared at her with such intensity that his conduct was noticed by at least one

bystander. When Carol told the bartender that she planned to leave by taxi,

defendant — who apparently continued to watch her closely — volunteered to

drive her home. Defendant made this offer even though he did not know where

Carol lived, and even though the pair hardly knew each other.


The jury could infer that Carol had no similar interest in defendant. By

asking him to dance, Carol treated defendant no differently than other bar patrons

with whom she danced the same night or on prior occasions. She did not follow

defendant to his table afterwards, but returned to her barstool instead. Moreover,

Carol balked at being alone with defendant. Though she eventually accepted a

ride from him, she first asked the bartender whether it was safe to go.

In a related vein, Carol told the bartender that she was going home to her

family. The jury could have accepted this statement at face value, and concluded

that Carol did not intend to have sexual relations with defendant after she left the

bar. Such evidence was “clearly probative” of both lack of consent and rape, and

supported conviction under the prosecution’s first degree felony-murder theory.

(People v. Rowland (1992) 4 Cal.4th 238, 264 [rape-murder victim’s statement

about going home to sleep, which she made after enduring defendant’s sexual

advances in bar, suggested she did not thereafter consent to sex with him].)

Against this backdrop, defendant apparently saw Carol consume alcohol in

the bar. He also later told the police that she was drunk while riding in his car. To

rational jurors, defendant might have believed that Carol’s condition would make

her receptive or vulnerable to his sexual advances once they were alone together.

However, subsequent events indicate that Carol rejected such advances and

that — consistent with evidence in the Valery C. case — defendant forced her to

have sex anyway. Carol likely died within 30 minutes of leaving the bar with

defendant. During that time, a violent struggle occurred in his car, as evidenced

by Carol’s defensive and other injuries, the seat foam stuck to her body, and

defendant’s own statements. Jurors also learned that he penetrated and ejaculated

into her vaginal and anal cavities. Given the compressed time frame, and the sheer

number of violent and sexual acts, the jury could reasonably conclude that they


were part of one continuous criminal transaction in which defendant forced Carol

to submit to both vaginal and anal intercourse against her will.

Defendant highlights his statements to police indicating that Carol

consented to vaginal sex, and that they fought afterwards about whether to visit

another bar. However, the jury could have discredited this account. (See, e.g.,

People v. Berryman (1993) 6 Cal.4th 1048, 1084 [finding substantial evidence that

consensual sex did not precede violence, and that violence accompanied sex].)

Defendant initially denied knowing Carol or being in the bar the night she was

killed. When Detective Coffey disclosed contrary evidence, defendant admitted

driving Carol home, but insisted no sex or violence occurred. Only after Coffey

implied that defendant’s semen would be found in Carol’s body did he admit

vaginal intercourse. He also eventually admitted a struggle in his car. In addition,

defendant denied anal intercourse — a stance inconsistent with medical, blood,

and DNA evidence indicating that defendant forcibly sodomized Carol. Faced

with defendant’s changing stories and with evidence contradicting much of what

he said, jurors could infer that none of his exculpatory statements about sex was

true, and that he lied to defeat both sodomy and rape charges.

Contrary to what defendant further implies, the lack of vaginal injury does

not preclude the jury from finding rape or prevent this court from upholding that

determination on appeal. (People v. Berryman, supra, 6 Cal.4th 1048, 1084; see

People v. Griffin (2004) 33 Cal.4th 1015, 1027 [rape involves force sufficient “to

overcome the will of the victim,” and does not require evidence that such force

“physically facilitated sexual penetration or prevented the victim from physically

resisting her attacker”].) Here, of course, the jury was free to accept testimony by

Dr. Cogan and Investigator Kitchings describing apparent trauma to Carol’s

vagina, e.g., bruised labial skin. The inference that such injury occurred during

nonconsensual sex was strengthened by evidence that Carol’s body was found


naked from the waist down with her legs spread apart. (People v. Berryman,

supra, 6 Cal.4th at p. 1084.) Such degrading circumstances could have convinced

jurors that there was nothing lawful about defendant’s sexual encounter with

Carol, including the act of vaginal intercourse.

In sum, we find sufficient evidence to support defendant’s conviction of

first degree murder under a felony-murder-rape theory.

2. Premeditated Murder

Defendant argues that evidence of premeditation and deliberation was

insufficient to support the first degree murder conviction. Under this approach,

Carol’s strangulation was impulsive or accidental. Defendant points to the lack of

any evidence that he procured a weapon in advance or planned the killing.

Suggesting he had no motive to kill, defendant notes that he and Carol were virtual

strangers who met on friendly terms in the bar.

An intentional killing is premeditated and deliberate if it occurred as the

result of preexisting thought and reflection rather than unconsidered or rash

impulse. (People v. Perez (1992) 2 Cal.4th 1117, 1125, applying People v.

Anderson (1968) 70 Cal.2d 15, 26-27.) However, the requisite reflection need not

span a specific or extended period of time. “ ‘ “Thoughts may follow each other

with great rapidity and cold, calculated judgment may be arrived at quickly

. . . .” ’ ” (People v. Bolin (1998) 18 Cal.4th 297, 332.)

Appellate courts typically rely on three kinds of evidence in resolving the

question raised here: motive, planning activity, and manner of killing. (People v.

Perez, supra, 2 Cal.4th 1117, 1125, applying People v. Anderson, supra, 70 Cal.2d

15, 26-27.) These factors need not be present in any particular combination to find

substantial evidence of premeditation and deliberation. (People v. Pride (1992) 3

Cal.4th 195, 247.) However, “[w]hen the record discloses evidence in all three

categories, the verdict generally will be sustained.” (People v. Proctor (1992) 4


Cal.4th 499, 529.) In conducting this analysis, we draw all reasonable inferences

necessary to support the judgment. (People v. Perez, supra, 2 Cal.4th at p. 1124,

citing People v. Johnson, supra, 26 Cal.3d 557, 578.)

As noted, the murder occurred during a sexually motivated attack. It

appears defendant became fixated upon Carol after she asked him to dance. He

paid close attention to her words and movements afterwards, and made sure she

did not take a taxi home. The evidence further indicated that not long after they

drove away from the bar, and while they were alone in his car, defendant forcibly

raped and sodomized Carol, and subjected her to lethal violence. The jury could

reasonably have believed that defendant killed Carol “to silence her as a possible

witness to her own sexual assault.” (People v. Pride, supra, 3 Cal.4th 195, 247.)

It also appears defendant planned the fatal confrontation to some extent.

After watching Carol much of the night, he offered her a ride home. Far from

being altruistic, this offer could reasonably be seen as a pretext for the pair to be

alone. Such circumstances made Carol vulnerable not only to sexual assault, but

also to murder. Indeed, as revealed during the police interview, defendant knew

when he left the bar with Carol that Valery C. had formally accused him of rape.

The jury could have concluded that defendant decided before the murder to ensure

that Carol, a subsequent rape victim, did not survive to report the crime.

The manner of killing also suggests premeditation. The pathologist, Dr.

Cogan, testified that lethal pressure had been applied to Carol’s neck for a “long”

time. This evidence suggests defendant had ample opportunity to consider the

deadly consequences of his actions. (See, e.g., People v. Davis, supra, 10 Cal.4th

463, 510 [strangulation of sexual assault victim for up to five minutes suggested

deliberate plan to kill her].) However, instead of easing the pressure on Carol’s

neck (as he did during the rape of Valery C.), defendant used multiple means of

strangulation, namely, manual choking sufficient to break the thyroid cartilage,


use of a choke hold sufficient to break the cricoid cartilage, and application of a

ligature sufficient to damage the neck. Such acts seem calculated to ensure death.

(See People v. Bonillas (1989) 48 Cal.3d 757, 792 [describing ligature

strangulation as inherently deliberate act].)

Accordingly, we find substantial evidence of first degree premeditated

murder, and decline to reverse the conviction on this ground.

B. Evidentiary Rulings

1. Autopsy Photographs

In several hearings held outside the jury’s presence, the court and counsel

debated the admissibility of autopsy photographs. The disputed items included

three photos of Carol’s dissected neck (exhibits Nos. 46, 47, and 48), and two

photos of her dissected anus (exhibits Nos. 61 and 62).

As noted further below, the prosecution’s offer of proof included voir dire

testimony by the pathologist, Dr. Cogan, that all five photographs played a critical

role in explaining his views on sexual trauma and the cause of death. The defense

countered by arguing that the pictures were unduly gruesome and prejudicial.

Hence, to prevent admission of the neck photographs, defense counsel offered to

stipulate to strangulation as the cause of death. Counsel also sought to exclude the

anal photographs to prevent jurors from mistakenly blaming defendant for surgical

damage caused by the autopsy procedure itself.

The trial court ruled that none of the photographs was exceptionally bloody

or gruesome, and that all plainly supported the prosecution’s case. Declining to

sanitize the crime by excluding this evidence, the court concluded that its

probative value substantially outweighed any prejudicial impact. (See Evid. Code,

§ 352.)


Defendant now contends that admission of the photographs constituted an

abuse of discretion, and violated his rights to due process and a reliable verdict

under the federal Constitution. We reject the claims.

Defendant did not seek to exclude this evidence on constitutional grounds

below. However, assuming without deciding that this federal claim has been

preserved (see Yeoman, supra, 31 Cal.4th 93, 117-118, 133), no error occurred.

The neck photographs showed that multiple strangulation methods and sustained

pressure caused deep injuries in the form of hemorrhaging and cartilage fractures

while Carol was alive. Such evidence supported the intent to kill and

premeditation elements of the first degree murder charge, and weakened any

inference of a rash killing. Similarly, photographs inside the anal cavity revealed

tearing and bleeding consistent with forcible penetration before death —

information that supported the sodomy-murder special circumstance. We reject

defendant’s claim that photographs are irrelevant or inadmissible simply because

they duplicate testimony, depict uncontested facts, or trigger an offer to stipulate.

(People v. Crittenden, supra, 9 Cal.4th 83, 132-133; People v. Pride, supra, 3

Cal.4th 195, 243.)

Nor did the trial court err in concluding that relevance outweighed

prejudice. The photographs are unpleasant, but not to the point of distracting the

jury from its proper function. Contrary to what defendant assumes, jurors could

“distinguish between the wounds inflicted from the murder and the disfigurement

caused by the autopsy.” (People v. Welch (1999) 20 Cal.4th 701, 751.) Also, any

overlap between photographs was insubstantial, particularly since Dr. Cogan

relied on each one during his testimony. (See, e.g., People v. Cain (1995) 10

Cal.4th 1, 29.)

We have upheld the use of autopsy photos to prove guilt in other capital

trials, including images of dissected tissue and excised organs. (E.g., People v.


Weaver (2001) 26 Cal.4th 876, 932-934; People v. Medina (1995) 11 Cal.4th 694,

754-755; People v. Cain, supra, 10 Cal.4th 1, 27-29.) We do so again here.

2. Detective Coffeys Interview Techniques

The prosecution called Detective Coffey to describe the murder

investigation, including defendant’s statements at the police station. When first

examined on the latter topic, Coffey mentioned specific interview techniques used

in this case. They included speaking in a stern voice, and disclosing incriminating

evidence whenever it seemed defendant was “not being truthful.”

A bench conference then occurred in which the court and counsel discussed

the logistics of presenting the recorded interview to the jury — a recording that

was three and one-half hours long. During this conference, the court authorized

the prosecution to elicit additional testimony concerning Coffey’s reasons for

asking defendant certain questions. The court also overruled defense counsel’s

objection that the interview itself provided the “best evidence,” and that the

proffered testimony was unnecessary.

Hence, when describing defendant’s statements about his conduct on

January 19, 1990, Detective Coffey repeatedly testified that defendant changed his

story when confronted with conflicting evidence. Coffey twice said that this

process exposed apparent “lies” on defendant’s part. Defense counsel objected

throughout this exchange solely on grounds the prosecution asked Coffey leading

and argumentative questions, and assumed facts not in evidence.

Defendant now contends the trial court allowed Detective Coffey to attack

defendant’s veracity in violation of state law rules restricting both expert and lay

opinion testimony on the issue. (See Evid. Code, §§ 800, 801; People v. Melton

(1988) 44 Cal.3d 713, 744; People v. Sergill (1982) 138 Cal.App.3d 34, 38-40; but

see People v. Padilla (1995) 11 Cal.4th 891, 946-947 [suggesting that Cal. Const.

art. I, § 28, subd. (d), known as Prop. 8’s Truth-in-Evidence provision, repealed


such rules for crimes committed after its June 1982 effective date].) The ruling

supposedly usurped the jury function (thereby violating the Fifth, Eighth, and

Fourteenth Amendments), and allowed the prosecutor to exploit defendant’s “lies”

in closing argument.

We reject these claims. First, as noted by the Attorney General, defendant

did not seek to exclude the evidence below on any theory raised here. As in prior

cases involving a failure to object on similar grounds, the claims have been

forfeited on appeal. (People v. Anderson (1990) 52 Cal.3d 453, 478.)

Second, defendant misreads the record. Detective Coffey highlighted the

twists and turns in a long interrogation. Nothing in this testimony or the trial

court’s rulings indicated that Coffey was offering an opinion for direct jury

consideration on the issue of defendant’s credibility. No reasonable juror would

have viewed the evidence this way. Moreover, Coffey’s testimony mirrored the

interview heard by the jury, including defendant’s own admissions about lying and

changing his account. Just as we find no flaw in the questions the court allowed

the prosecutor to ask, we find nothing harmful in the answers Coffey gave.

3. Evidence Carol Left the Bar with Another Man

During opening remarks and, later, on cross-examination of bar patron

Cooper, the defense tried to inform the jury that Carol left the White Oak Inn with

other men before January 19, 1990, the day of the murder. Each time, the trial

court sustained the prosecution’s objection, and barred such evidence absent an in

limine offer of proof establishing its relevance.

The issue arose again on cross-examination of bartender Russo. Abiding

by the court’s ruling, defense counsel moved outside the jury’s presence to ask

Russo whether, consistent with his preliminary hearing testimony, he saw Carol

leave the bar with a man other than her husband in the weeks before the murder.

Defendant argued that Carol’s behavior with other men was admissible under


Evidence Code section 1103, subdivision (a)(1) to prove that she acted the same

way with defendant the night she died.15 Defendant insisted that exclusion of the

evidence would violate his constitutional right to a fair trial. The prosecution

renewed its relevance objection.

After a hearing, defendant’s motion was denied. The court ruled that to the

extent the defense sought to imply that Carol had a history of consenting to sex

with men after leaving the bar, the proffered evidence violated Evidence Code

section 1103, subdivision (c)(1).16 In addition, the court exercised its discretion


Evidence Code section 1103, subdivision (a)(1) states, in part, that evidence

of a crime victim’s character in the form of “specific instances of conduct” is not
inadmissible under section 1101 of the same code where the defendant seeks to
prove “conduct of the victim in conformity” with such evidence in a criminal case.
Proposition 8’s Truth-in-Evidence provision, which ended most restrictions on the
use of relevant evidence in criminal cases, explicitly exempted both Evidence
Code section 1103 and Evidence Code section 352 from its reach. (See Cal.
Const., art. I, § 28, subd. (d); People v. Harris (1989) 47 Cal.3d 1047, 1081-1082.)


Evidence Code section 1103, subdivision (c)(1) provides that, “in any

prosecution under Section 261 . . . or under Section 286 . . . of the Penal Code, . . .
evidence of specific instances of the complaining witness’ sexual conduct . . . is
not admissible by the defendant in order to prove consent by the complaining
witness.” The trial court observed that no “complaining witness” survived the
alleged crime, and that defendant was not separately charged “under Section 261
. . . or under Section 286” with rape and sodomy, respectively. However, to the
extent “consent” bore on the rape-murder theory of first degree murder and the
sodomy-murder special circumstance, the court ruled that the statute barred
evidence that Carol left the bar with other men. The court explained that whether
a woman is dead or alive, she should not be “vilified” by her sexual history “on
the issue of consent.” On appeal, defendant claims the court erred in applying
Evidence Code section 1103, subdivision (c)(1) where, as here, none of the
enumerated sex crimes is charged as a substantive offense. However, we need not,
and do not, decide the issue. As explained above, the trial court properly excluded
the evidence on another viable ground — Evidence Code section 352.


under Evidence Code section 352, and excluded the evidence as unduly

prejudicial. The court emphasized that the offer of proof concerned “only one

very amorphous incident in which [Carol] left the bar with another man. For what

purpose, for what reason, it is unknown.”

Defendant argues here, much as below, that the trial court abused its

discretion under state law, and violated his right to present a defense and to

receive both a fair trial and reliable verdict under the federal Constitution. The

ruling allegedly prevented jurors from inferring that Carol, who was intoxicated,

voluntarily left the bar with defendant, and engaged in consensual sexual relations

with him. We disagree.

As defendant seems to concede, evidence that Carol previously left the

White Oak Inn with another man had no probative value other than to suggest that

she did so in order to have sex, and that she acted in a similar fashion when she

left the bar with defendant. However, in addition to any prohibition that might

apply under Evidence Code section 1103, subdivision (c)(1), the foregoing

inference was speculative for reasons the trial court explained. The offer of proof

contained no information about Carol’s conduct on prior occasions, and merely

insinuated that she was a promiscuous person. “The court is not required to admit

evidence that merely makes the victim of a crime look bad.” (People v. Kelly

(1992) 1 Cal.4th 495, 523.) Thus, the trial court did not abuse its broad discretion

in concluding that the evidence lacked probative value, and that the risk of

confusion and prejudice was great. We reject defendant’s contrary claim.

4. Carols Intoxicated State

During Dr. Cogan’s cross-examination, the parties stipulated that,

consistent with the toxicology report attached to the autopsy report, Carol had a

.26 blood-alcohol level, and was intoxicated. At the bench, defense counsel

complained that the stipulation was inadequate absent additional evidence about


Carol’s condition. Counsel wanted the jury to know, for instance, that a .08 blood-

alcohol level is sufficient to commit a drunk driving offense. (See Veh. Code,

§ 23152, subd. (b).) The trial court replied by sharing the prosecution’s relevance

concerns, and by saying it might exclude such evidence if the defense proffered it.

Nonetheless, the defense subsequently moved to introduce evidence

explaining Carol’s intoxicated state. First, in proceedings held largely in the

prosecutor’s absence, counsel sought funds to hire an expert to testify as described

below. Second, in another hearing held within the prosecutor’s presence, counsel

argued that such evidence was relevant and should be admitted by the court.

Fairly understood, and viewing these proceedings as a whole, defendant

offered to admit expert testimony that would establish: (1) the amount of alcohol

Carol consumed the night she was killed based on her height, weight, and blood-

alcohol content, (2) the general effect of that blood-alcohol content in lowering a

person’s sexual “inhibitions,” and (3) the general likelihood that a person whose

inhibitions had been lowered in this manner would have consented to sexual

relations. Defendant also sought admission of evidence that Carol’s blood-alcohol

level exceeded the .08 standard needed to violate the Vehicle Code.17

The trial court questioned whether defendant followed the proper funds

procedure in capital cases. (See § 987.9, subd. (a) [capital trial judge does not

decide funds motion].) The court declined to admit the proffered evidence in any

event. The court reasoned that the defense theory was speculative and irrelevant,

and that the potential for jury confusion and undue prejudice was great.


Defense counsel conceded that his expert witness did “not know how

intoxication would affect [Carol], because he didn’t personally know [Carol] or
her habits.” Instead, the expert would show “how a certain level of intoxication,
namely 0.26 blood alcohol, would affect people in general.”


Defendant claims here, as below, that the trial court abused its discretion in

not allowing him to prove that Carol was intoxicated according to Vehicle Code

standards, and that she therefore consented impulsively to sex. The error was

allegedly prejudicial because his pretrial statements about consent were otherwise

uncorroborated, and the prosecutor tried to minimize Carol’s intoxication in

closing argument.18

The trial court properly excluded defendant’s evidence on relevance

grounds. (See Evid. Code, § 210.) Nothing in the offer of proof showed how

Carol’s blood-alcohol content and intoxication affected her judgment and behavior

the night she was killed, or increased the chance that she did, in fact, consent to

vaginal and anal intercourse. Defendant essentially wanted jurors to speculate on

intoxication, inhibition, and impulse. Speculative inferences are, of course,

irrelevant. (People v. Kraft (2000) 23 Cal.4th 978, 1035.)

The trial court also did not abuse its broad discretion to the extent it

excluded the proffered evidence under Evidence Code section 352. (See People v.

Rodriguez (1999) 20 Cal.4th 1, 9-10 [such rulings receive great deference on

appeal].) Defendant essentially sought to prove that people act under the influence

of alcohol in ways they do not ordinarily behave. This is common knowledge.

Hence, the proffered evidence would have had little impact on lay jurors, who

presumably know as well as any expert how to assess the effect of alcohol on

impulse and inhibitions. (See People v. Seaton (2001) 26 Cal.4th 598, 654-655


Defendant also claims, without meaningful or independent analysis, that the

ruling violated his federal and state constitutional rights to present a defense, to
effective representation, to due process and equal protection, and to a reliable
verdict. Though he invoked none of these theories below, we assume without
deciding that the claims have been preserved. (See Yeoman, supra, 31 Cal.4th 93,
117-118, 133.) However, as discussed above, no error of any kind occurred.


[upholding exclusion of expert testimony on how defendant’s blood-alcohol level

affected criminal intent since evidence “contained little if any information a

layperson would not know”].) Nothing in the instructions prevented the jury from

concluding that Carol’s intoxication caused her to consent to sexual intercourse.

Finally, defendant could not have been prejudiced by any error in excluding

evidence that a .26 blood-alcohol level makes people too drunk to drive and

lowers their sexual inhibitions. Carol died after a violent struggle with defendant,

a virtual stranger. The condition and position of her body bore the classic signs of

murder in the course of a forcible sexual assault. On the one hand, jurors knew

Carol had been drinking in the bar and was intoxicated. Indeed, counsel argued

that Carol was the perfect “date” because she was a promiscuous person whose

resistance had been lowered by alcohol. On the other hand, the evidence also

showed that defendant had recently forced another vulnerable victim to have sex,

and that he likely acted with similar intent here. Defendant’s insistence that he

and Carol fought violently about bar-hopping (not about sex) seemed inherently

implausible, particularly in light of other patent untruths about their encounter

(e.g., his denial of anal intercourse despite the presence of his semen in Carol’s

anal canal). Because evidence that he murdered her during a forcible rape and

sodomy was strong, the challenged ruling could not have affected the verdict.

C. Instructional Issues

1. Self-Defense and Imperfect Self-Defense

During a conference on jury instructions, the trial court advised counsel that

it planned to instruct on both first and second degree murder in connection with

the alleged murder of Carol. Defense counsel replied by requesting additional

instructions on (1) the lesser offense of voluntary manslaughter based on

“imperfect” self-defense (see People v. Flannel (1979) 25 Cal.3d 668, 674-680;

CALJIC No. 5.17), and (2) the defense of justifiable homicide based on “perfect”


self-defense. (See §§ 197, 198; CALJIC Nos. 5.12, 5.13.) For support, counsel

cited defendant’s statements to police that Carol drew a knife in his car, as well as

Dr. Cogan’s testimony about the cuts on Carol’s hand. Counsel theorized that

Carol tried to kill defendant with the knife, that she cut her hand when he grabbed

the knife, and that he strangled her in self-defense.

Finding this scenario unduly speculative, the court refused to instruct in the

requested manner. Thus, as relevant here, the jury received first degree murder

instructions under both premeditation and felony-murder-rape theories. The jury

also received second degree murder instructions reflecting both an express and

implied malice approach.

Defendant insists he offered valid theories of imperfect and perfect self-

defense at trial, and that the court erred in refusing such instructions. This ruling

purportedly violated his right to present a defense, to trial by jury, and to due

process under the federal Constitution.

An unlawful killing involving either an intent to kill or a conscious

disregard for life constitutes voluntary manslaughter, rather than murder, when the

defendant acts upon an actual but unreasonable belief in the need for self-defense.

(See People v. Blakeley (2000) 23 Cal.4th 82, 87-89, 91; People v. Barton (1995)

12 Cal.4th 186, 199; In re Christian S. (1994) 7 Cal.4th 768, 771, 783; People v.

Flannel, supra, 25 Cal.3d 668, 679.) In addition, a homicide is justifiable and

noncriminal where the actor possessed both an actual and reasonable belief in the

need to defend. (People v. Barton, supra, 12 Cal.4th at pp. 199-200; People v.

Flannel, supra, 25 Cal.3d at pp. 674-675.) In either case, “the fear must be of

imminent harm. ‘Fear of future harm — no matter how great the fear and no

matter how great the likelihood of the harm — will not suffice. The defendant’s

fear must be of imminent danger to life or great bodily injury.’ ” (People v.

Humphrey (1996) 13 Cal.4th 1073, 1082, quoting In re Christian S., supra, 7


Cal.4th at p. 783.) The trial court need not give such instructions on request

absent substantial evidence to support them. (In re Christian S., supra, 7 Cal.4th

at p. 783; see People v. Flannel, supra, 25 Cal.3d at pp. 684-685 & fn. 12.)

Applying these principles here, no error occurred. Aside from the

inconsistent accounts defendant gave to police, there is no evidence Carol brought

a knife to the murder scene. According to her husband and other witnesses, Carol

never carried a knife when she went to the White Oak Inn. Also, the medical and

physical evidence showed that Carol — the victim of lethal force — struggled with

her attacker and suffered defensive knife wounds. Such evidence undermines the

present instructional claim by suggesting that defendant (not Carol) possessed a

knife, and that Carol (not defendant) defended against its use.

Even assuming the police interview constitutes substantial evidence that

Carol possessed and displayed a knife the night she was killed, there is no

substantial evidence of “actual fear of an imminent harm” sufficient to support

either imperfect or perfect self-defense instructions. (In re Christian S., supra, 7

Cal.4th 768, 783.) In fact, defendant’s statements affirmatively negate any such

fear or belief. Defendant told police that Carol pulled the knife from her purse

when a shadowy figure, perhaps her “old man,” appeared in front of the house.

Defendant also reported that Carol held the knife down by her side after they had

consensual sex and while they debated going to another bar. On the one hand,

defendant worried about Carol’s apparent plan to “hurt somebody.” On the other

hand, he maintained in the face of persistent police questioning that she showed no

interest in using the knife against him, and that she did not threaten him with it in

any way. This evidence shows that defendant did not perceive any imminent

threat of harm from the knife.

Thus, an essential element is missing from defendant’s claim that he could

not be convicted of murder because he acted either in self-defense or upon an


unreasonable belief in the need to do so. The trial court did not err in refusing to

instruct along such lines.

2. Reasonable and Mistaken Belief in Consent

In discussing felony-murder-rape instructions bearing on the first degree

murder charge, the trial court told counsel that it would not instruct on whether

defendant acted with an actual and reasonable, but mistaken, belief that Carol

consented to sexual intercourse. (See People v. Williams (1992) 4 Cal.4th 354,

360-361; People v. Mayberry (1975) 15 Cal.3d 143, 153-158; CALJIC No. 10.65.)

According to the court, no evidence supported such a defense, and only “straight

consent” could counter the prosecution’s claim that defendant forcibly raped

Carol. The court cited defendant’s statements to police that Carol agreed to have

vaginal sex, and that they only fought afterwards about going to another bar.

Defense counsel urged the court to change its mind, and to include CALJIC

No. 10.65 in its felony-murder-rape instructions. When asked to explain this

request, counsel pointed to Carol’s intoxicated state. Counsel theorized that,

because intoxication presumably impaired Carol’s ability to communicate,

defendant could have believed she consented to vaginal sex even if she did not.

However, the court found no evidentiary support for this view. The court returned

to its earlier theme that either defendant murdered Carol in the commission of a

forcible rape, or she actually consented to vaginal intercourse and clearly

communicated that fact to him.

Undaunted, defense counsel also asked for CALJIC No. 10.65 as part of the

sodomy-murder special-circumstance instructions. The court said it was not

prepared to discuss that matter, and that only the felony-murder-rape instructions

were under review at that time. A confusing exchange then occurred in which

counsel apparently agreed to save arguments concerning the special circumstance

allegation until later (“Okay”), but in which the court seemed to either misstate or


misunderstand counsel’s position concerning the requested instruction (“I agree

with you it doesn’t apply to the rape”). In any event, consistent with its own views

on the subject, the court declined to give CALJIC No. 10.65 as part of the felony-

murder-rape instructions. Regarding the latter theory of first degree murder, the

lone “consent” instruction the court ultimately gave was CALJIC No. 1.23.1,

which speaks in terms of a sexual act freely, voluntarily, and knowingly

performed. (See § 261.6.)

Defendant now asserts the trial court erred in rejecting his request for a

mistake of fact instruction as to the forcible rape of Carol. Defendant renews his

claim that Carol’s impaired state might have made it seem like she consented to

vaginal sex even if she did not. The court’s decision allegedly violated

defendant’s right to present a defense, to trial by jury, and to due process under the

federal Constitution.19

The mistake of fact defense reflected in CALJIC No. 10.65 has two

components. First, the defendant must have “honestly and in good faith, albeit

mistakenly, believed that the victim consented to sexual intercourse.” (People v.


The Attorney General argues that defendant “invited” any instructional

error, and is estopped from seeking reversal of the judgment on this ground.
Citing the trial court’s statement to this effect, the Attorney General claims
defense counsel “agreed” CALJIC No. 10.65 “should not be given as to rape.”
However, as explained above, the court appears to have misstated or
misinterpreted counsel’s stance. More to the point, the court’s decision to
withhold CALJIC No. 10.65 with respect to the felony-murder-rape theory was
not induced by defendant, but by the court’s unwavering belief that the instruction
lacked evidentiary support. (People v. Lang (1989) 49 Cal.3d 991, 1031-1032.)
There also seems to be no plausible tactical reason why defendant would forgo the
chance to escape a first degree murder conviction based on his reasonable belief in
consent as to rape. (See People v. Whitt (1990) 51 Cal.3d 620, 641.) Thus, we
reject the claim of invited error.


Williams, supra, 4 Cal.4th 354, 360-361. fn. omitted.) This subjective component

involves evidence of “equivocal conduct” by the victim that the defendant mistook

for consent. (Id. at p. 361.) Second, an objective component asks whether the

defendant’s mistaken belief regarding consent was “reasonable under the

circumstances.” (Ibid.) In order to give such an instruction upon request, the trial

court must find substantial evidence supporting each feature of the defense. (Ibid;

see People v. Maury, supra, 30 Cal.4th 342, 424 [sua sponte duty to so instruct].)

Any error was harmless. The trial court ultimately granted defendant’s

request for CALJIC No. 10.65 in connection with the sodomy-murder special-

circumstance allegation. This instruction said that defendant would lack the

requisite intent and would not be guilty of the crime of sodomy if he possessed “a

reasonable and good faith belief that [Carol] voluntarily consented to engage in

sodomy.” (CALJIC No. 10.65 (1990 rev.).) Jurors unanimously found the special

circumstance allegation true beyond a reasonable doubt. Hence, they necessarily

rejected mistake of fact as a defense to unlawful sodomy. Because the rape and

sodomy were closely connected in their commission, we conclude that, under any

applicable standard, the jury would not have reached a different conclusion under

CALJIC No. 10.65 as to first degree felony murder than it reached as to the

felony-murder special circumstance.

On this basis, we reject the claim of reversible instructional error.

3. “Sexual Intercourse

The standard rape instruction given here (CALJIC No. 10.00), like the rape

statute itself (§ 261, subd. (a)), does not define “sexual intercourse.” Defendant

claims the trial court erred in not sua sponte defining the term as vaginal

penetration, and thereby violated his federal and state due process rights to a jury

trial on all elements of first degree felony murder. Defendant assumes jurors

mistakenly used evidence of anal penetration to find he raped Carol.


However, as defendant concedes, we have held that “sexual intercourse”

has a common meaning in the context of rape, that no technical elaboration is

required, and that the term can only refer to vaginal penetration or intercourse.

(People v. Holt (1997) 15 Cal.4th 619, 676; cf. People v. Hughes (2002) 27

Cal.4th 287, 349-350 [presuming jurors do not know legal definition of rape

where court failed to instruct on rape as target offense of burglary].) Also, no risk

of confusion exists where the court properly gives other instructions defining

sodomy as anal penetration. (People v. Holt, supra, 15 Cal.4th at p. 676; see

§ 286, subd. (a); CALJIC No. 10.20.) Thus, defendant could not have been

convicted of nonconsensual sexual intercourse and rape based on anal penetration

used to prove sodomy. We see no basis on which to distinguish or reconsider

People v. Holt, supra, 15 Cal.4th 619. We therefore decline to do so.

4. Consciousness of Guilt

The trial court gave CALJIC No. 2.03, which states that the defendant’s

“willfully false” statement about the charged crime may show “a consciousness of

guilt,” but is “not sufficient by itself to prove guilt.” Defendant claims this

instruction violated his federal and state constitutional rights (effective

representation, due process, impartial jury, and reliable verdict).

However, the instruction applied based on defendant’s inconsistent and

contradicted statements to police attempting to minimize involvement in the

capital crime. (People v. Turner (1994) 8 Cal.4th 137, 202 [instruction proper

where evidence supports it].) We also have upheld CALJIC No. 2.03 against all

other challenges raised here. The instructional language sufficiently protects

against conviction based on the defendant’s false statements or consciousness of

guilt alone. (People v. Kelly, supra, 1 Cal.4th 495, 531-532.) Nor is it

argumentative or biased in the prosecution’s favor. (People v. Bacigalupo (1991)

1 Cal.4th 103, 127-128.) Finally, insofar as the jury believed defendant lied about


the charged crimes, the instruction did not generate an irrational inference of

consciousness of guilt. (People v. Holt, supra, 15 Cal.4th 619, 678.) No error


5. Circumstantial Evidence

Defendant argues that CALJIC No. 2.01, the standard instruction on

circumstantial evidence of guilt, violated his federal and state constitutional rights

(due process, trial by jury, privilege against self-incrimination, and reliable

verdict). He apparently faults the trial court for not deleting language barring the

jury from accepting an interpretation favorable to the prosecution and unfavorable

to the defense unless no other “reasonable” interpretation exists. (Ibid.) Though

defendant overlooks this fact, another instruction applied the same principles to

the special circumstance determination. (CALJIC No. 8.83.)

A long line of cases upholds these instructions against challenges

indistinguishable from those raised here. (E.g., People v. Snow (2003) 30 Cal.4th

43, 95-96; People v. Hughes, supra, 27 Cal.4th 287, 346-347; People v. Seaton,

supra, 26 Cal.4th 598, 667-668.) Consistent with these authorities, we reject

defendant’s assertion that jurors divorced the circumstantial evidence instructions

from other instructions giving defendant the benefit of any “reasonable doubt.” In

light of the reasonable doubt instructions, the circumstantial evidence instructions

did not impermissibly diminish the prosecution’s burden of proof or create a

mandatory presumption in favor of the prosecution’s theory of the case. Nor did

anything in the challenged instructions penalize defendant for not waiving his

privilege against self-incrimination and presenting a more favorable and

“reasonable” account at trial. Finally, there was no instructional error for the

prosecutor to exploit in this regard. He accurately described the circumstantial

evidence instructions for the jury.


Defendant also contends the trial court erroneously denied his request for

CALJIC No. 2.02, which applies the circumstantial evidence principles contained

in CALJIC Nos. 2.01 and 8.83 to the issue of mental state, including specific

intent. Under this view, the court should have at least given a modified version of

CALJIC No. 2.02 that deleted the language disputed above in connection with

other similar instructions. Defendant claims violations of his federal and state

constitutional rights to present a defense, to a jury trial, to due process, and to a

reliable verdict.20

The trial court followed settled law and properly concluded that the

requested instruction was subsumed in other instructions. “[T]here is no need to

give CALJIC No. 2.02 when the trial court gives a more inclusive instruction

based upon CALJIC No. 2.01, unless the only element of the offense that rests

substantially or entirely upon circumstantial evidence is that of specific intent or

mental state. [Citation.] Because mental state or specific intent was not the only

element of the case resting upon circumstantial evidence, the trial court did not

commit error by providing only the more inclusive instructions.” (People v.

Hughes, supra, 27 Cal.4th 287, 347; accord, People v. Cole (2004) 33 Cal.4th


The Attorney General insists defendant has forfeited his right to complain

about the failure to give CALJIC No. 2.02, because his request for that instruction
below did not embrace the modification he now claims should have been made.
However, the Attorney General concedes that defendant has not forfeited his
closely related claim that the trial court erred in giving an unmodified version of
CALJIC No. 2.01, even though defendant did not seek a similar modification at
trial. In making the latter point, the Attorney General relies on section 1259,
which allows appellate review of “any instruction given, refused or modified, even
though no objection was made thereto in the lower court, if the substantial rights
of the defendant were affected thereby.” This statute seems to preserve all
challenges to the circumstantial evidence instructions raised here. (See People v.
(1999) 20 Cal.4th 936, 976, fn. 7.)


1158, 1221-1222; People v. Marshall (1996) 13 Cal.4th 799, 849.) Defendant

presents no compelling reason to reconsider this analysis, which applies under the

circumstances of the present case. We thus decline to do so.

D. Alleged Prosecutorial Misconduct

Defendant contends the prosecutor made several statements during closing

argument that rendered the guilt trial fundamentally unfair (thus violating his

federal constitutional rights to due process and an impartial jury), and involved

deceptive and reprehensible conduct (thus violating state law). (See Darden v.

Wainwright (1986) 477 U.S. 168, 181; People v. Cole, supra, 33 Cal.4th 1158,

1202; People v. Farnam (2002) 28 Cal.4th 107, 167.) Such alleged acts of

misconduct, defendant urges, were prejudicial and compel reversal of the

judgment. As explained below, we disagree.

1. Alleged Misstatements of the Evidence

Defendant faults the prosecutor for conflating evidence of rape bearing on

first degree felony murder with evidence of sodomy used to prove the felony-

murder special circumstance. Defendant cites only one example, as follows: “[I]n

the autopsy report and the testimony itself, Dr. Cogan formulated the opinion of

not only the rape issue . . . but also sodomy.” (Italics added.) Defendant contends

this statement was false because the autopsy report mentioned only anal trauma

and sodomy, not genital trauma or rape.

Defendant’s failure to object at trial bars him from challenging this

comment for the first time on appeal. We agree with the Attorney General that the

alleged misconduct is not so serious that a curative admonition would have been

ineffective. (People v. Arias, supra, 13 Cal.4th 92, 159.)

We also reject the claim on the merits. The prosecutor did not state or

imply that proof of one sex crime constituted proof of the other sex crime, or that

the autopsy report alone reached any conclusions about rape as opposed to


sodomy. Instead, the prosecutor reasonably suggested that Dr. Cogan’s written

and testimonial opinions together showed that Carol was raped and sodomized

during the lethal attack. (See People v. Farnam, supra, 28 Cal.4th 107, 169

[noting prosecutor’s wide latitude to draw reasonable inferences from evidence].)

Furthermore, the prosecutor urged jurors to find rape and sodomy based on the

brutalized condition of Carol’s body, the sexually suggestive position in which it

was found, and the presence of defendant’s semen in both the vaginal and anal

canals. The prosecutor did not misstate the evidence of sexual assault, including

the contents of the autopsy report.

Defendant also claims the prosecutor misstated the evidence of Carol’s

intoxication. The relevant facts are as follows: Arguing that the prosecution did

not prove lack of consent to either vaginal or anal intercourse, defense counsel

portrayed Carol as a promiscuous woman who, though married, drank heavily and

sought “male attention” in bars. Counsel theorized that Carol’s intoxication

caused her to consent to sex and to provoke a fight out of anger or shame. In

rebuttal, the prosecutor urged jurors not to blame the victim. He first asked the

rhetorical question whether “somebody who has a drink or two gets to be raped

and sodomized and killed?” (Italics added.) Then, in describing Carol as a loving

wife and mother who fought to save her life, the prosecutor said she was “under

the influence a little” when she died. (Italics added.) Defense counsel

successfully objected and sought an admonition, as discussed below.

Defendant contends the prosecutor falsely portrayed Carol as only mildly

impaired, citing both comments italicized above. Assuming the claim has been

preserved for appeal, we conclude that, under any applicable standard, the jury

could not have “construed or applied the prosecutor’s remarks in an objectionable

fashion.” (People v. Arias, supra, 13 Cal.4th 92, 163.) The prosecutor prefaced

the first challenged remark with a reminder that Carol had a .26 blood-alcohol


reading and was intoxicated. Similarly, in sustaining defense counsel’s objection

to the second challenged remark, the trial court made clear that Carol was “under

the influence, period.” The prosecutor agreed, reminding jurors that the parties

had stipulated to Carol’s intoxication. Finally, the instructions advised jurors that

any stipulated fact was deemed conclusively proved, and that statements by the

attorneys were not evidence. Under the circumstances, no prejudicial misconduct

on victim intoxication occurred.

2. Alleged Misstatements of Law

Defendant insists the prosecutor repeatedly mischaracterized the crime of

first degree premeditated murder, as follows: The prosecutor initially suggested

that defendant could be convicted of first degree premeditated murder if he acted

with “intent to kill” and to eliminate Carol as a witness to her own sexual assault.

The trial court called both attorneys to the bench and ordered the prosecutor to

clarify that he needed to prove premeditation and deliberation in addition to intent

to kill. Later, the prosecutor said “all I have to [prove is]” that defendant

“inten[ded] to kill” Carol in order to cover up the rape and sodomy. The defense

objected and sought a curative admonition. As a result, both the court and the

prosecutor reminded jurors that first degree premeditated murder required

premeditation and deliberation as well as intent to kill. In keeping with this theme,

the prosecutor argued that even if the sexual attack on Carol was opportunistic,

defendant had decided to kill her by the time the struggle began in his car.

Defendant now claims the prosecutor misstated the law by excising

premeditation and deliberation from first degree premeditated murder. (See

People v. Hill (1998) 17 Cal.4th 800, 830-831 [prosecutor overlooked force or fear

element of robbery].) Assuming the claim has been preserved for appeal, the jury

could not have been misled as defendant suggests. The trial court took swift

action to correct any suggestion that first degree premeditated murder involved no


mental state other than intent to kill. The instructions also identified and defined

the elements of first degree premeditated murder, including the prosecution’s duty

to prove the “willful, deliberate and premeditated” nature of the killing. As noted

earlier, the jury knew statements made in closing arguments had no binding effect.

The instructions also told jurors to “follow the law” as stated by the court. We

assume the jury abided by the court’s admonitions and instructions, and thereby

avoided any prejudice. (People v. Jones (1997) 15 Cal.4th 119, 168.)

3. Reference to Penalty

In his rebuttal argument, the prosecutor urged jurors not to accept defense

counsel’s view of the evidence or to return a second degree murder verdict. The

prosecutor theorized that counsel wanted to avoid both a “penalty phase” and any

“special circumstance issue.” Counsel objected and requested a bench conference.

Anticipating counsel’s concerns, the trial court struck the quoted language from

the record. The court also told the jury not to consider “any issue of penalty phase

whatsoever.” The prosecutor agreed, explaining to the jury that only guilt was

then under review.

Contrary to what defendant now claims, no prejudice occurred. The

challenged reference was brief, fleeting, and mild. (See People v. Kipp (2001) 26

Cal.4th 1100, 1130.) The trial court told jurors to ignore the remark as soon as it

was made. They received another warning against considering penalty shortly

before guilt deliberations began. We can only assume jurors properly performed

their duty and followed their instructions in this regard.

4. Alleged Attacks on Counsel

Defendant contends the prosecutor repeatedly disparaged defense counsel

in rebuttal argument. The prosecutor told jurors to avoid “fall[ing]” for counsel’s

argument in favor of a second degree murder verdict, to view counsel’s argument

as a “ridiculous” attempt to allow defendant to “walk” free, to view counsel’s


statement as an “outrageous” attempt to demean the victim and treat her as a “Jane

Doe”, and to view counsel’s argument as a “legal smoke screen.”21

No misconduct occurred. This case does not involve such forbidden

prosecutorial tactics as falsely accusing counsel of fabricating a defense or

otherwise deceiving the jury. (People v. Bemore (2000) 22 Cal.4th 809, 846.)

The prosecutor simply used colorful language to permissibly criticize counsel’s

tactical approach. (Ibid.; see People v. Marquez (1992) 1 Cal.4th 553, 575-576

[upholding reference to defense as “smokescreen”].) These comments were

explicitly aimed at counsel’s closing argument and statement, rather than at him

personally. We see no improper attack on counsel’s integrity.

E. Cumulative Error

Defendant argues that the cumulative effect of all guilt phase errors

rendered the trial fundamentally unfair. However, we either have rejected his

claims and/or found any assumed error to be nonprejudicial on an individual basis.

Viewed as a whole, such errors do not warrant reversal of the judgment.


Regarding the Attorney General’s argument that defendant has forfeited all

of these claims, we reach the following conclusions. First, because defendant’s
objection to the “Jane Doe” remark was promptly overruled, his failure to request
a curative admonition seems justified. (People v. Hill, supra, 17 Cal.4th 800, 820-
821 [objection and/or request of admonition not required where futile or
impracticable].) Hence, this claim has been preserved for appeal. Second, when
the trial court sustained defendant’s objection to the “walk” comment, he should
have asked that jurors be admonished to disregard it — an omission that is
unexcused and that waives the claim. (Id. at p. 820) Third, defense counsel did
not object to any of the other alleged attacks on his integrity. Such claims of
misconduct clearly have been forfeited. (Ibid.)



A. Defendant’s Forcible Sodomy of his Daughters

1. Background

A week or so before the cause was called to trial on July 7, 1992, the

prosecution advised the defense both orally and in writing about witnesses who

might describe criminal activity involving defendant’s use or threatened use of

violence under section 190.3, subdivision (b) (factor (b)). The list included

defendant’s daughter, S., and his ex-wife, Deborah. The prosecutor also disclosed

his ongoing investigation of a 1981 arrest in Texas for sexual assault. The search

had been hampered, he said, by the lack of any record of conviction and the

difficulty obtaining interstate police reports. While he did not know who accused

defendant of the Texas crimes, the prosecutor promised to “immediately” disclose

that information if it involved “the daughters or someone I believe I can use at the

penalty phase.”

On July 17, 1992, the day after the jury was sworn, the prosecutor told both

the court and counsel that he had just received police records faxed from Texas

confirming that defendant’s 1981 arrest involved rape and/or sodomy against both

daughters. The prosecutor said that he had not yet located either victim.

Nonetheless, he gave notice of his intent to introduce their testimony about violent

sex crimes prompting the 1981 arrest. The prosecutor gave the defense copies of

the faxed material.

Counsel responded by accusing the prosecutor of delay in disclosing the

circumstances of the Texas sex crimes. Counsel sought exclusion of this evidence

under both section 190.3 and due process principles, because adequate notice was

not given until after trial had begun. However, the motion failed. The court

determined that the prosecution had acted diligently and fulfilled all notice

requirements. Finding no unfair surprise, the court cited preliminary hearing


testimony in which Valery C. said that S. had mentioned being sexually abused by


Shortly before the penalty phase, the court considered the admissibility of

the Texas sex crimes on grounds other than notice. The prosecutor said he had not

yet located S., and that only M. and Deborah might testify at trial. He called both

witnesses at the hearing as part of his offer of proof. (See Evid. Code, § 402.)

Specifically, M. testified that defendant threatened, frightened, and

sodomized both her and S. as children in Texas. According to M., the abuse of

both girls began when M. was five and ended when she was eight, and occurred

once or twice a week when their mother was not home. Deborah testified, in turn,

that M. told her and others about the abuse. The parties stipulated that these

accusations led to defendant’s 1981 arrest, and ended in a “no bill” grand jury

proceeding in Texas. It was further established by stipulation and judicial notice

that such a proceeding occurs when an insufficient number of grand jurors (i.e.,

fewer than nine of 12) find probable cause of a crime, and means the suspect is not

indicted or held for trial. Also, the grand jury may reconsider the case and issue

an indictment later.

The defense moved to exclude the Texas sex crimes on two grounds. First,

defendant claimed he had been acquitted by the grand jury, and that the evidence

was thus barred under factor (b). Second, defendant insisted the acts were stale

and prejudicial under Evidence Code section 352. He argued their admission

would be abusive and unfair.

These claims were rejected. The trial court declined to view the Texas

grand jury’s failure to indict as a “final adjudication on the merits.” The court also

refused to exclude the Texas sex crimes under Evidence Code section 352.

However, defendant was allowed to tell penalty jurors about the favorable

outcome of the Texas case.


As noted, M. and Deborah testified at the penalty phase consistent with

their accounts at the evidentiary hearing. The defense established that the Texas

grand jury did not indict defendant for sodomy against M. and S. An instruction

prevented penalty jurors from considering any violent criminal acts in aggravation

under factor (b) unless they were proven beyond a reasonable doubt.

On appeal, defendant contends use of the factor (b) sex crimes violated

state statutory law in several respects, and impaired his federal and state

constitutional rights to due process and a reliable verdict. We now address each


2. Notice Requirements

Defendant argues here, as below, that the trial court should have excluded

the factor (b) sex crimes because the prosecution did not timely disclose certain

details before trial, like the victims’ identities. We disagree.

The defense generally must receive notice of aggravating evidence “prior to

trial.” (§ 190.3.) Depending upon the circumstances, we have defined this

concept to mean either before the case is called to trial (People v. Daniels (1991)

52 Cal.3d 815, 879) or before the start of jury selection. (People v. Johnson

(1993) 6 Cal.4th 1, 51.) In any event, notice given later in time does not require

exclusion of the evidence where it is newly discovered, and the delay is not

unreasonable, unexcused, or prejudicial. (People v. Smith (2003) 30 Cal.4th 581,


The Attorney General summarily contends that defendant failed to object

on due process grounds below, and that he therefore has forfeited any such
constitutional claim on appeal. However, as noted above, counsel explicitly raised
defendant’s due process rights when litigating notice under section 190.3. Similar
fair trial concerns accompanied all other timely defense objections to admission of
the factor (b) sex crimes. Hence, it appears defendant has preserved his present
claims insofar as they are framed in due process terms.


619.) At no point must the section 190.3 notice recite every circumstantial fact

surrounding a factor (b) crime. The purpose of the statute is met where the

defendant has a reasonable chance to defend against the charge. (People v. Arias,

supra, 13 Cal.4th 92, 166; People v. Pride, supra, 3 Cal.4th 195, 258.)

The trial court properly applied these rules here. The prosecution informed

the defense well before trial that at least one daughter, S., would describe factor

(b) crimes — crimes that logically included the incest S. had revealed to Valery C.

At the same time, the prosecution disclosed that the factor (b) evidence might

include sex crimes underlying defendant’s 1981 Texas arrest, and that his two

daughters might be the victims. While the prosecutor did not confirm the latter

fact until after the jury was sworn, he shared such information as soon as it arrived

from out of state. Only a few weeks passed between the first and second

notifications. Even the latter notice came near the start of trial, before any guilt

evidence was introduced. Thus, defendant was adequately apprised of the

prosecution’s intent to admit evidence of the sodomy involving his daughters.

3. Acquittal Defense

Defendant contends he was “prosecuted and acquitted” for the factor (b)

sex crimes in Texas, and that such acts were therefore barred under section 190.3.

According to this theory, the grand jury’s failure to indict defendant under a

probable cause standard constituted an implied determination that he was not

guilty beyond a reasonable doubt. Defendant is mistaken.

Section 190.3 expressly permits proof of any violent criminal activity,

whether or not it led to prosecution and conviction, except as to any offense

resulting in an acquittal. (People v. Melton, supra, 44 Cal.3d 713, 754.) We have

strictly limited this statutory notion of an acquittal to a judicial determination on

the merits of the truth or falsity of the charge. (People v. Bacigalupo, supra, 1

Cal.4th 103, 133-134; People v. Jennings (1991) 53 Cal.3d 334, 390.) Thus, an


acquittal after prosecution does not occur for purposes of section 190.3 where the

trial court dismissed the case under section 995 for lack of probable cause as to

guilt. (People v. Ghent (1987) 43 Cal.3d 739, 774.) We have reached the same

result even where a statutory bar prevents refiling of the dismissed charge.

(People v. Medina (1990) 51 Cal.3d 870, 907.)

Here, there was no judicial determination on the merits as to whether

defendant forcibly sodomized his daughters. The Texas proceeding involved a

discretionary charging decision by the grand jury. Indeed, it seems even further

removed from an “acquittal” than a section 995 proceeding in which pending

criminal charges are dismissed by a judge. Nothing in the grand jury proceeding

itself prevented defendant from being later charged, prosecuted, and convicted of

the same crimes. None of the features commonly associated with acquittals exists

here. (Cf. People v. Hatch (2000) 22 Cal.4th 260, 271 [double jeopardy principles

bar retrial if court finds evidence at trial was insufficient to support conviction as

matter of law].) The trial court properly reached the same result.

4. Evidence Code Section 352

According to defendant, Evidence Code section 352 virtually compelled

exclusion of the factor (b) sex crimes because they were too remote and

prejudicial, and because M.’s testimony was untrustworthy. However, the trial

court did not abuse its discretion in this regard.

The prosecution may offer, in aggravation, violent criminal acts committed

at any time in the defendant’s life. (People v. Rodrigues (1994) 8 Cal.4th 1060,

1158; People v. Bacigalupo, supra, 1 Cal.4th 103, 134.) The time gap between the

forced serial sodomy of defendant’s daughters and the present trial is not

unusually long by capital standards. (E.g., People v. Anderson (2001) 25 Cal.4th

543, 585, and cases cited.) Also, because factor (b) expressly permits admission

of criminal violence at the penalty phase, the trial court cannot exclude all such


evidence as unduly prejudicial. (Id. at p. 586.) This information shows the

defendant’s propensity for violence, and helps jurors decide whether he deserves

to die. (People v. Ray (1996) 13 Cal.4th 313, 349-350.) As for M.’s credibility,

this issue affects the weight, not the admissibility, of her factor (b) testimony. It

was for the jury to decide, based on proper instruction, whether she properly

recalled and recounted defendant’s violent acts. (People v. Catlin, supra, 26

Cal.4th 81, 172; People v. Anderson, supra, 25 Cal.4th at p. 587.)

B. Photograph of Carol while Alive

Near the start of the penalty trial, the court and counsel repeatedly

discussed the admissibility in the prosecution’s case-in-chief of two photographs

of Carol while she was alive. One depicted Carol and her husband Delbert

together, and the other depicted Carol with several family members. The

prosecution offered the pictures as victim impact evidence under Payne v.

Tennessee (1991) 501 U.S. 808 (Payne), and its progeny. The defense opposed

admission of the photographs on these grounds. Counsel argued that the photos

were irrelevant and prejudicial because they were taken at unknown times, and

because they did not show the kind of harm contemplated by the cases on which

the prosecution relied.

The trial court excluded the group family photo, but admitted the photo of

Carol and Delbert, marking it exhibit No. 85. The prosecution introduced the

latter item while Delbert was on the witness stand. In the process, the prosecution

asked one substantive question, “How did you feel about your wife?” As noted,

Delbert said she was his “whole life.”

Defendant argues here, much as below, that exhibit No. 85 was irrelevant.

Its admission purportedly violated his right to due process under the federal and


state Constitutions, and his right to a reliable verdict under the federal

Constitution. We disagree.23

In 1987, the United States Supreme Court held that the Eighth Amendment

barred evidence of a murder victim’s personal traits and the effect of the murder

on surviving relatives. (Booth v. Maryland (1987) 482 U.S. 496, 509 (Booth); see

South Carolina v. Gathers (1989) 490 U.S. 805, 811-812 [barring prosecutorial

argument on the matter].) Four years later, in Payne, supra, 501 U.S. 808, the

high court reversed itself, and held that the states could choose to admit evidence

of the “specific harm” the defendant had caused, to wit, the loss to society and the

victim’s family of a “unique” individual. (Id. at p. 825.) According to Payne, the

federal Constitution bars such evidence only if it is “so unduly prejudicial” as to

render the particular trial “fundamentally unfair.” (Ibid.)

Shortly after Payne, this court held that victim impact evidence is generally

admissible as a circumstance of the crime under section 190.3, factor (a). (People

v. Edwards (1991) 54 Cal.3d 787, 835-836.) Payne and Edwards apply even

where, as here, the murder occurred while Booth, supra, 482 U.S. 496, was in

effect. (People v. Brown (2004) 33 Cal.4th 382, 394-395.)

The challenged photograph helped illustrate Delbert’s expression of love

for Carol — testimony that defendant does not contest. As a whole, such evidence

implied that Carol’s loved ones suffered grief and pain over her loss. Thus, the


The Attorney General insists defendant moved to exclude this evidence

only under Evidence Code section 352 below, and that he therefore has forfeited
his constitutional claims. However, as noted above, the court and counsel debated
both the relevance and fairness of admitting exhibit No. 85. In so doing, they
referred to the same authorities that defendant cites here, including the
constitutional principles in Payne, supra, 501 U.S. 808. We therefore reject the
proposed procedural bar.


jury could consider this evidence in determining whether death or LWOP was the

appropriate punishment. (E.g., People v. Boyette (2002) 29 Cal.4th 381, 444

[allowing photos of murder victims taken at unspecified times].) Contrary to what

defendant implies, the photograph was not irrelevant or unduly prejudicial simply

because it did not depict Carol exactly as she appeared to defendant, or because he

knew nothing about her marriage. (People v. Pollock (2004) 32 Cal.4th 1153,

1183 [rejecting claim that victim impact evidence involves “only circumstances

known or reasonably foreseeable to the defendant at the time of the crime”].) No

error occurred.

C. Carol’s Intoxicated State

Before opening statements at the penalty phase, the defense moved to

explore the issue of Carol’s intoxication — a request the trial court had denied at

the guilt phase. Once again, counsel sought to present both argument and

evidence, including expert testimony, concerning the .08 blood-alcohol standard

used for drunk driving (see Veh. Code, § 23152, subd. (b)), and the general effect

of a .26 blood-alcohol level on sexual consent. Defendant claimed such evidence

would rebut any victim impact testimony that Carol was an ideal wife, and would

raise lingering doubt as to his guilt of forcible rape and sodomy.

Ruling on the issue, the trial court allowed defendant to tell jurors that

Carol was “highly intoxicated” when she left the bar with him. Also, if the

prosecution idealized Carol, the court promised to allow appropriate rebuttal,

apparently about her drinking and socializing in bars. However, alluding to its

guilt phase ruling, the court otherwise denied defendant’s motion on relevance

grounds. The court found nothing in the offer of proof linking Carol’s blood-

alcohol content and intoxication to her own sexual behavior. Later, before closing

arguments, the court denied another defense request to mention the .08 blood-

alcohol standard contained in the Vehicle Code.


Here, much as below, defendant maintains that evidence offered to explain

Carol’s intoxication was relevant and admissible for reasons given at the guilt

phase, and that the trial court continued to err insofar as it excluded such evidence

at the penalty phase. The argument in favor of admission is purportedly stronger

at the penalty phase, because of defendant’s federal constitutional right to present

relevant mitigating evidence in the form of lingering doubt as to his guilt of the

capital crime. Defendant claims prejudice insofar as the prosecution argued that

Carol’s intoxication did not cause her to consent to vaginal or anal sex with him.

Defendant’s claim fails at the threshold. A capital defendant has no federal

constitutional right to have the jury consider lingering doubt in choosing the

appropriate penalty. “Such lingering doubts are not over any aspect of [a

defendant’s] ‘character,’ ‘record,’ or a ‘circumstance of the offense.’ ” (Franklin

v. Lynaugh (1988) 487 U.S. 164, 174, quoting Eddings v. Oklahoma (1982) 455

U.S. 104, 110; accord, People v. Cox (1991) 53 Cal.3d 618, 676.) In any event,

nothing the high court has said about the constitutional significance of mitigation

makes such evidence more relevant, competent, and admissible at the penalty

phase than it is at the guilt phase. Evidence that is inadmissible to raise reasonable

doubt at the guilt phase is inadmissible to raise lingering doubt at the penalty

phase. (See McKoy v. North Carolina (1990) 494 U.S. 433, 440 [same test of

relevance applies to mitigation at penalty phase as in any other context]; People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 116 [trial court retains discretion at

penalty phase to exclude proffered mitigation as irrelevant or unduly prejudicial].)

Defendant’s evidence of victim intoxication at the penalty phase suffered

from the same logical gaps that justified its exclusion at the guilt phase. Nothing

showed that Carol’s blood-alcohol content and intoxication affected her

willingness to consent to sex. In seeking to create or reinforce lingering doubt, the

defense simply wanted jurors to assume that because Carol’s .26 blood-alcohol


content far exceeded the statutory limit for drunk driving, she must have consented

to sexual relations with defendant. Such speculative inferences would have added

nothing to what jurors presumably knew. No abuse of discretion occurred.

Even so, defendant could not have been prejudiced. The penalty evidence

showed that defendant threatened and sodomized his daughters while they were

quite young. The abuse lasted several years, and defendant repeatedly ignored the

victims’ cries of pain. More recently, defendant choked and raped Valery C. —

one of the convictions entered in the present case. At the time, Valery was a

pregnant teenager who had moved into defendant’s home, and who had never been

alone with him before. Again, defendant refused the victim’s pleas to stop.

Finally, with respect to the capital crime, the evidence showed that defendant

brutally raped, sodomized, and murdered Carol. Carol apparently died struggling

to save her own life, and likely experienced great pain. The crime occurred as

soon as defendant — who perceived Carol as drunk — got her alone in his car.

Thus, in choosing the appropriate punishment, jurors knew that defendant had a

long history of sexually assaulting females who were vulnerable or in his care, and

that his crimes had escalated in violence. The admission of evidence either

comparing Carol’s blood-alcohol level to the drunk driving standard or exploring

the general effect of intoxication on sexual impulse could not have produced a

more favorable sentence under any applicable standard.

D. Alleged Prosecutorial Misconduct

Defendant contends that prosecutorial misconduct occurred throughout the

penalty trial in violation of his federal constitutional rights to due process and an

impartial jury. He presents these alleged improprieties in the order they occurred

at trial, providing a brief analysis of each one. We first categorize, and then reject,

these claims.


1. Alleged Inflammatory Remarks

Defendant insists the prosecutor prejudiced the jury against him in the

following ways: (1) referring in opening statements to the aggravating evidence as

“shocking,” “vicious,” and “unspeakable”, (2) asking M. on direct examination to

describe defendant’s “bad” acts even though they might be “difficult” to discuss,

and (3) suggesting in closing argument that defense counsel should not have cross-

examined M. about the “tissues” she used to clean herself after being sodomized

as a child.

Defendant objected successfully to the foregoing remarks. However, he

failed to request a curative admonition below, and offers no excuse for not doing

so on appeal. We agree with the Attorney General that the claims are barred.

(People v. Hill, supra, 17 Cal.4th 800, 820.) Nevertheless, we see no harm even

assuming some misconduct occurred. None of the incidents seemed so serious or

inflammatory that they would prevent jurors from following their instructions and

ignoring material as to which an objection had been sustained. (People v. Padilla,

supra, 11 Cal.4th 891, 956-957.)

Defendant also claims the prosecutor improperly referred in closing

argument to Carol and Valery C. as innocent victims who suffered pain and

degradation at defendant’s hands. The prosecutor observed that, at the time of the

crimes, Carol was a wife and mother, and Valery was a pregnant and homeless


First, defendant failed to object at trial. We therefore agree with the

Attorney General that defendant has forfeited the present claim. (People v. Cole,

supra, 33 Cal.4th 1158, 1233.)

Second, the challenged remarks constituted permissible victim impact

argument under Payne, supra, 501 U.S. 808, 825. As noted earlier, the prosecutor

was free to ask penalty jurors to consider any special traits that made the victims


vulnerable to attack, and the unique pain that either the victims or their families

experienced as a result of the charged crimes. The record supports the

prosecutor’s arguments. The trial was not fundamentally unfair in this regard.

(E.g., People v. Cole, supra, 33 Cal.4th 1158, 1233-1234 [allowing argument

about physical pain defendant inflicted on victim during surprise attack]; People v.

Boyette, supra, 29 Cal.4th 381, 444 [allowing argument about emotional grief and

loss experienced by victims’ families].)

2. Alleged Disregard of Evidentiary Rulings

Twice during his examination of M., the prosecutor asked about events not

disclosed during the in limine hearing concerning evidence of the factor (b)

crimes. One question asked whether M. had “tried to interrupt” a fight between

her mother and defendant, and the other question asked if she had heard a “taped

message” between defendant and her mother in the months before trial. When the

defense objected to the first question, the court summoned counsel to the bench to

discuss the matter. However, as soon as the second question was asked, the court

called a conference without any prompting from the defense. Counsel then

objected at the bench. Each time, the court reprimanded the prosecutor for trying

to admit aggravating evidence not included in his offer of proof. During the

second hearing, the court threatened to admonish the prosecutor in front of the jury

or to grant a mistrial if the problem recurred.

Defendant maintains the prosecutor improperly tried to elicit inadmissible

evidence in violation of a court ruling. (People v. Silva (2001) 25 Cal.4th 345,

373.) It appears the claim has been preserved for appeal even though no request

for an admonition was made at trial. The court made clear after sustaining the

second defense objection that it was not prepared to take any other curative action

at that time. (People v. Hill, supra, 17 Cal.4th 800, 820-821.) But, any

impropriety was not so egregious as to render the trial unfair or to prejudice


defendant. (People v. Silva, supra, 25 Cal.4th at p. 373.) The disputed questions

involved events that were extremely minor compared to the sodomy murder of

Carol, the rape of Valery C., and the forced serial sodomy of defendant’s

daughters. The court also intervened before M. could give any damaging details.

We reject the claim.

3. Alleged Misstatements of the Evidence

In closing argument, the prosecutor reminded jurors not to allow personal

feelings about capital punishment to interfere improperly with their oath and the

court’s instructions. To illustrate such bias, the prosecutor referred to defendant’s

ex-wife Deborah, who testified that she opposed death for defendant or anyone

else in his situation. The specific comment was that if Deborah had undergone

voir dire, “she would have been excused for cause.” The trial court overruled

counsel’s timely objection — an objection that the Attorney General reasonably

suggests was sufficient to preserve the claim for appeal. (See People v. Hill,

supra, 17 Cal.4th 800, 820-821.)

Defendant now contends the challenged remark was unfounded and

incorrect. However, even assuming the prosecutor misspoke for the reasons

defendant suggests, jurors were merely being asked to perform their lawful

sentencing function. Defendant could not have been prejudiced as a result.

Defendant next argues that the prosecutor incorrectly summarized the facts

concerning defendant’s sodomy of his daughters. First, the prosecutor said that

defendant began sodomizing S. when she was “three years old.” Second, the

prosecutor said that “each” girl was sodomized “twice weekly” for “[t]hree and a

half years.” Defendant suggests that even though these comments mirrored M.’s

testimony at the in limine hearing, they found no support in her trial testimony,

which was less specific in this regard.


Preliminarily, the trial court overruled two defense objections to the first

comment and told the prosecutor to continue with his argument. As the Attorney

General seems to concede, defendant’s failure to request an admonition does not

forfeit the claim, because the request would probably have been denied. (People

v. Hill, supra, 17 Cal.4th 800, 820-821.) However, defendant failed to object to

the second comment. We agree with the Attorney General that it cannot be

challenged for the first time here. (Id. at p. 820.)

On the merits, the challenged comments do not warrant reversal of the

judgment. First, as to when the molestation of S. began, M. testified at trial that

defendant started molesting her (M.) at age five, and that the abuse lasted three

and one-half years, ending when she was eight years old. M. also testified that

during the same three and one-half year period, S. was “typically” or “normally”

sodomized on the same occasions as M. (M. also saw S. being abused more than

once.) Hence, the evidence does not foreclose the inference that defendant started

molesting S. at the same time he started molesting M. Since S. was two years

younger than M., defendant’s sodomy of S. could have begun when she was three

years old. No factual misstatement occurred.

As to the second comment about the frequency of these acts, M. testified at

trial that they usually happened on Saturdays when her mother ran errands with R.

M. also described a typical encounter as one in which defendant first sodomized

M. and then sodomized S. Even assuming this testimony did not support the

prosecutor’s twice-weekly estimate as to each girl, we see no harm. M. indicated

that defendant regularly and brutally sodomized both daughters for several years

while they were young and vulnerable.

Defendant further contends no evidence supported the prosecutor’s

assertion in closing argument that defendant might commit sodomy in prison if

sentenced to LWOP. (See People v. Millwee (1998) 18 Cal.4th 96, 153 [argument


on future dangerousness proper where based on evidence of past crimes].)

However, even where a capital defendant has shown a preference for sexual

violence against women, it is not improper to suggest that he might prey on

inmates and/or prison staff. (People v. Welch, supra, 20 Cal.4th 701, 761; People

v. Bradford, supra, 15 Cal.4th 1229, 1380.) In any event, the trial court sustained

defense counsel’s objection and told jurors to disregard the reference to future

sodomy. We can only assume they followed the instruction, and did not allow this

isolated remark to affect the verdict.

4. Alleged Misstatements about Sentencing Discretion

In closing argument, the prosecutor emphasized the standard instruction on

sentencing discretion (CALJIC No. 8.88 (1989 rev.)), and used a chart of that

instruction as a visual aid. He said that if jurors decided that aggravation

substantially outweighed mitigation, then “it’s your responsibility, duty and

obligation pursuant to your oath, if you think it’s warranted,” to impose the death

penalty. He later made similar remarks about death as the “appropriate” penalty.

The prosecutor also described the aggravating and mitigating factors in detail (see

§ 190.3, factors (a)-(k)), including defendant’s character and background

evidence. (Id., factor (k).)

Defendant seems to contend that the prosecutor mischaracterized death as

automatic, mandatory, or nondiscretionary in the present case. As defendant

suggests, jurors are “free to reject death [based on] any constitutionally relevant

evidence or observation that it is not the appropriate penalty.” (People v. Brown

(1985) 40 Cal.3d 512, 540, fn. & italics omitted, revd. on other grounds sub nom.

California v. Brown (1987) 479 U.S. 538.) The law also does not “require any

juror to vote for the death penalty unless, upon completion of the [individual and

normative] ‘weighing’ process, he decides that death is the appropriate penalty

under all the circumstances.” (Brown, supra, 40 Cal.3d at p. 541.)


First, we agree with the Attorney General that because defendant failed to

raise any objection at trial, he has forfeited the present claim. (See People v.

Davenport (1995) 11 Cal.4th 1171, 1221.)

Second, no misconduct occurred. Consistent with applicable law and the

court’s instructions, the prosecutor made clear that in order to return a death

verdict, jurors must determine that aggravation substantially outweighed

mitigation, and that death was the appropriate penalty. Indeed, the prosecutor

tempered his “duty” reference by urging jurors to choose death only “if [they]

think it’s warranted.” Consistent with the court’s instructions, prosecutorial

argument clearly and correctly implied that sentencing involved a normative

weighing process, and that all relevant mitigation should be considered. Nothing

indicated that jurors lacked discretion in the manner defendant suggests.24

E. Cumulative Error

Defendant complains about the cumulative effect of alleged constitutional

defects at his penalty trial, including prosecutorial misconduct. We have

individually rejected his claims of error and/or found any assumed error to be

nonprejudicial. Such errors are no more compelling or prejudicial when

considered together. We decline to reverse the death judgment on this ground.


Defendant cites two other alleged improprieties in the prosecutor’s closing

argument, namely, that defense witnesses testified “under subpoena”, and that
defense counsel might refer to capital punishment as “state murder.” Counsel
successfully objected each time, and the prosecutor admitted in front of the jury
that no evidence supported the subpoena reference. Whatever the precise nature
of defendant’s vague misconduct claims, the remarks were brief and mild, and the
trial court immediately disapproved their use. No harm could have ensued.


F. Constitutionality of the Death Penalty Law

Defendant contends that, in many respects, the 1978 death penalty law

under which he was sentenced denied him a fair and reliable penalty determination

under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and under parallel

provisions of the California Constitution. As defendant concedes, we have

rejected these claims before. We do so again here.

1. Death Eligibility

The homicide and death penalty statutes adequately narrow the class of first

degree murderers eligible for the death penalty. The scheme is not overbroad

because it permits capital exposure for many first degree murders (People v.

Crittenden, supra, 9 Cal.4th 83, 154-155), including unintentional felony murder.

(People v. Anderson, supra, 25 Cal.4th 543, 601.) Nor are the special

circumstances overinclusive in number or scope. (People v. Ray, supra, 13

Cal.4th 313, 356.) Prosecutorial discretion to invoke the death penalty law does

not render its application unconstitutional. (People v. Maury, supra, 30 Cal.4th

342, 438.) The prosecutor has not been delegated the judicial sentencing function

in violation of separation of powers principles. (People v. Bemore, supra, 22

Cal.4th 809, 858.) Defendant has not shown on this record or through any

judicially noticeable means that his contrary claims are empirically accurate and

legally meritorious. (People v. Michaels, supra, 28 Cal.4th 486, 541.)

2. Core Adjudicative Principles

The trial court did not err in failing to modify the standard capital

sentencing instructions by requiring the jury to (1) find proof of aggravating

factors (in addition to other violent crimes) beyond a reasonable doubt, (2) find

that aggravation outweighs mitigation beyond a reasonable doubt, (3) find that

death is the appropriate penalty beyond a reasonable doubt, (4) reach unanimity as

to the aggravating factors, and (5) presume that LWOP is the appropriate sentence.


(People v. Jones, supra, 15 Cal.4th 119, 196; People v. Arias, supra, 13 Cal.4th

92, 190.) Contrary to what defendant implies, the death penalty scheme does not

violate either constitutional or statutory law insofar as it fails to allocate a burden

of proof, or establish a standard of proof, for finding aggravating and mitigating

circumstances and for selecting the appropriate penalty. (People v. Welch, supra,

20 Cal.4th 701, 767-768.) Recent high court decisions, such as Blakely v.

Washington (2004) 542 U.S. __ [124 S.Ct. 2531], Ring v. Arizona (2002) 536 U.S.

584, and Apprendi v. New Jersey (2000) 530 U.S. 466, do not require

reconsideration or modification of our long-standing conclusions in this regard.

(People v. Morrison (2004) 34 Cal.4th 698, 731; People v. Prieto (2003) 30

Cal.4th 226, 262-263, 275.)

3. Death Selection

The sentencing factors contained in section 190.3, particularly factor (a)

(circumstances of the capital crime) and factor (b) (other violent criminal activity),

are not impermissibly vague. (Tuilaepa v. California (1994) 512 U.S. 967, 975-

980, affg. People v. Tuilaepa, supra, 4 Cal.4th 569, 594-595.) These factors also

did not bias the jury in favor of death insofar as they allowed evidence of guilt to

be used as evidence in aggravation. (People v. Ray, supra, 13 Cal.4th 313, 358.)

In addition, the trial court did not err in failing to (1) delete assertedly inapplicable

sentencing factors, (2) instruct as to which sentencing factors are aggravating and

which are mitigating, (3) instruct that the absence of mitigation in certain statutory

categories was not aggravating, and (4) instruct on the definition of mitigation.

(People v. Hughes, supra, 27 Cal.4th 287, 404.) The standard instructions in

CALJIC No. 8.88 (1989 rev.) adequately advised jurors on the scope of their

discretion to reject death and to return an LWOP verdict. (People v. Rodrigues,

supra, 8 Cal.4th 1060, 1192; People v. Duncan (1991) 53 Cal.3d 955, 978-979.)

The trial court did not prevent meaningful appellate review by failing to require a


written statement of the jury’s findings and reasons for imposing a death sentence.

(People v. Davenport, supra, 11 Cal.4th 1171, 1232.) No instruction on the

meaning of LWOP was required. (People v. Holt, supra, 15 Cal.4th 619, 688-


4. Appellate Review

California’s automatic appeals process is constitutional even though it

affords no intercase proportionality review. (People v. Anderson, supra, 25

Cal.4th 543, 602; see Pulley v. Harris (1984) 465 U.S. 37, 50-51.) Although his

death sentence is theoretically subject to intracase proportionality review (People

v. Anderson, supra, 25 Cal.4th at p. 602), defendant apparently raises no such

claim. His sentence is not grossly disproportionate to his moral culpability in any

event. In addition, the appellate review process is not impermissibly influenced by

political considerations in capital cases. (People v. Kipp, supra, 26 Cal.4th 1100,


G. Determinate Sentencing

After denying the automatic motion to modify the death verdict and

pronouncing judgment on the capital count (§ 190.4, subd. (e)), the trial court

imposed a determinate sentence on the noncapital count. (See § 1170, et seq.)

Consistent with the probation report, which it read solely for noncapital sentencing

purposes, the court chose the upper term of eight years for the rape of Valery C.

(See § 264, subd. (a).) The prison term was then made consecutive to the death

sentence. As explained further below, the court relied on “both the youth and

vulnerability of the victim” in making these decisions. (Italics added.) However,

the court stayed execution of the determinate term because it had relied, in part, on

the facts of the noncapital crime in refusing to modify the death verdict.

Defendant insists we must reverse and remand for resentencing because the

trial court cited insufficient reasons to support its sentencing choices. Defendant


did not raise this claim below. However, his hearing predated our decision in

People v. Scott (1994) 9 Cal.4th 331, 353, 357-358, which imposed a prospective

contemporaneous objection requirement on complaints like those raised here. We

therefore agree with the parties that the claim has not been forfeited, and that it

may be raised for the first time on appeal. (People v. Davis, supra, 10 Cal.4th

463, 552.) Nevertheless, it fails on the merits.

Under the statutes and rules in existence at the time of defendant’s hearing,

the trial court was required to state its reasons for making discretionary sentencing

choices. Two such choices included imposition of the upper term and the decision

to make one sentence consecutive to another. In deciding to aggravate a sentence

in this manner, the court was prohibited from using the same reason more than

once, and was required to cite different circumstances to support each choice.

(See § 1170, subds. (b) & (c); People v. Scott, supra, 9 Cal.4th 331, 349-350.)

The record shows compliance with these rules. The trial court cited two

factors in aggravation and no factors in mitigation when sentencing defendant for

the forcible rape of Valery C. First, the crime seemed aggravated in the court’s

view because the victim was relatively young, i.e., 16 years old. Second, the court

found the victim to be “particularly vulnerable.” The court explained at the

hearing to modify the death verdict that Valery was pregnant, that she depended

on defendant for shelter, and that she had no other apparent place to go. Contrary

to what defendant claims, a crime victim can be deemed vulnerable in this context

for reasons not based solely on age, including the victim’s relationship with the

defendant and his abuse of a position of trust. (People v. Clark (1990) 50 Cal.3d

583, 638.) The court properly applied these principles. The record supports the

determinate sentence challenged here.



We affirm the judgment in its entirety.





See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Stitely

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: March 21, 2005

County: Los Angeles
Judge: Howard J. Schwab


Attorneys for Appellant:

Joel Levine and Jo Anne Keller, under appointments by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Peggie Bradford Tarwater, Deputy Attorneys
General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Joel Levine
695 Town Center Drive, Suite 875
Costa Mesa, CA 92626
(714) 662-4462

Jo Anne Keller
P.O. Box 8032
Berkeley, CA 94707
(510) 558-0459

Peggie Bradford Tarwater
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 620-6097

Opinion Information
Date:Docket Number:
Mon, 03/21/2005S028970

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Peggie Bradford Tarwater, Deputy Attorney General
300 South Spring St., 5th Floor
Los Angeles, CA

2Stitely, Richard (Appellant)
San Quentin State Prison
Represented by Joel Levine
Attorney at Law
695 Town Center Dr., Suite 875
Costa Mesa, CA

3Stitely, Richard (Appellant)
San Quentin State Prison
Represented by Jo Anne Keller
Attorney at Law
P. O. Box 8032
Berkeley, CA

Mar 21 2005Opinion: Affirmed

Sep 14 1992Judgment of death
Sep 28 1992Filed certified copy of Judgment of Death Rendered
  September 14, 1992.
Dec 9 1997Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Joel Levine is hereby appointed as lead counsel, and Jo Anne Keller is appointed as associate counsel, to represent appellant on his automatic appeal now pending in this court, including any related habeas corpus proceedings.
Jan 22 1998Application for Extension of Time filed
  By Applt to request Record correction
Jan 23 1998Extension of Time application Granted
  To March 30,1998 To request Record correction
Mar 30 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Mar 31 1998Extension of Time application Granted
  To Applt To 5-29-98 To request Corr. of Record.
May 28 1998Application for Extension of Time filed
  By Applt to request Record correction
Jun 2 1998Extension of Time application Granted
  To 7-28-98 To request Record correction
Jul 24 1998Received copy of appellant's record correction motion
  appellant's request for correction, for additional record and to examine sealed documents and transcripts (9 pp.)
Sep 2 1998Compensation awarded counsel
Sep 29 1998Compensation awarded counsel
May 6 1999Filed:
  Applt's Applic. for Reversal of Trial Court's Ruling on Applt's request to Make Paper Exhibits Part of the C.T. on Appeal.
May 28 1999Opposition filed
  By Resp to Applt's Applic. for Reversal of Trial Court's Ruling on Applt's request to Make Paper Exhibits Part of the C.T. on Appeal.
Sep 22 1999Order filed:
  "Appellant's Application for Reversal of Trial Court's Ruling on Appellant's Request to Make Paper Exhibits Part of the Clerk's Transcript" is denied.
Feb 24 2000Record on appeal filed
  C-16 (3,781 Pp.) and R-29 (2,488 Pp.) Including Material Under Seal; Clerk's Transcript includes 3,279 pages of Juror Questionnaires.
Feb 24 2000Appellant's opening brief letter sent, due:
Mar 15 2000Compensation awarded counsel
  Atty Levine
Mar 29 2000Filed:
  2 Vols. of R.T. (190 Pp.)
Mar 31 2000Application for Extension of Time filed
  To file Aob.
Apr 7 2000Extension of Time application Granted
  To 5/4/2000 To file Aob.
Apr 13 2000Order filed:
  Order filed on 4/7/2000 Is Amended To: Applic of Applt to Serve and file AOB Is extended to and Including 6/5/2000.
Jun 1 2000Application for Extension of Time filed
  to file AOB.
Jun 8 2000Extension of Time application Granted
  To 8/7/2000 To file Aob.
Aug 7 2000Application for Extension of Time filed
  to file AOB. (third request)
Aug 8 2000Extension of Time application Granted
  To 10/6/2000 to file AOB.
Aug 9 2000Counsel's status report received (confidential)
  from atty Keller.
Sep 27 2000Counsel's status report received (confidential)
  from atty Keller.
Oct 10 2000Application for Extension of Time filed
  To file AOB. (4th request)
Oct 17 2000Extension of Time application Granted
  To 12/5/2000 to file AOB.
Dec 4 2000Application for Extension of Time filed
  To file AOB. (5th request)
Dec 6 2000Counsel's status report received (confidential)
  from atty Keller.
Dec 8 2000Extension of Time application Granted
  To 2/5/2001 to file AOB.
Feb 2 2001Application for Extension of Time filed
  To file AOB. (6th request)
Feb 9 2001Counsel's status report received (confidential)
  from atty Keller.
Feb 16 2001Extension of Time application Granted
  To 4/6/2001 to file AOB.
Apr 4 2001Application for Extension of Time filed
  To file AOB. (7th request)
Apr 11 2001Counsel's status report received (confidential)
  from atty Keller.
Apr 23 2001Filed:
  Supplemental decl. in support of application for ext. of time to file AOB.
Apr 24 2001Extension of Time application Granted
  To 6/5/2001 to file AOB.
Jun 5 2001Application for Extension of Time filed
  To file AOB. (8th request)
Jun 21 2001Extension of Time application Granted
  to 8-6-2001 to file AOB. No further extensions of time are contemplated.
Jun 22 2001Counsel's status report received (confidential)
Jul 19 2001Application to file over-length brief filed
  (285 Pp. AOB submitted under separate cover)
Jul 20 2001Order filed:
  Appellant's application to file a brief in excess of the page limit is granted.
Jul 20 2001Appellant's Opening Brief filed. (285 Pp.)
Aug 8 2001Compensation awarded counsel
  Atty Levine
Aug 10 2001Application for Extension of Time filed
  to file respondent's brief. (1st request)
Aug 14 2001Extension of Time application Granted
  To 10/18/2001 to file resp.'s brief.
Sep 10 2001Motion filed
  by respondent to unseal transcript of in camera proceedings.
Sep 21 2001Counsel's status report received (confidential)
Sep 27 2001Order filed:
  Respondent's "Motion to Unseal Transcript of In Camera Proceedings," filed on 9-10-2001, is granted. The clerk is directed to unseal Volume 10 (July 27, 1992), pages 1078 to 1085, of the reporter's transcript on appeal, and is further directed to transmit a copy thereof to respondent.
Oct 12 2001Application for Extension of Time filed
  to file resp's brief. (2nd request)
Oct 17 2001Extension of Time application Granted
  To 12/17/2001 to file resp.'s brief. Counsel anticipates filing brief on or before 1/16/2002.
Nov 20 2001Counsel's status report received (confidential)
Nov 26 2001Counsel's status report received (confidential)
  (supplemental) from atty Levine.
Dec 11 2001Request for extension of time filed
  to file resp's brief. [3rd request]
Dec 21 2001Extension of time granted
  To 2/15/2002 to file resp.'s brief. Only one further extension totaling 30 additional days is contemplated.
Jan 16 2002Counsel's status report received (confidential)
  from atty Levine.
Feb 7 2002Request for extension of time filed
  to file resp's brief [4th request]
Feb 14 2002Extension of time granted
  To 3/18/2002 to file resp.'s brief. Dep. AG Tarwater anticipates filing the brief by 3/17/2002. No further extension is contemplated.
Mar 14 2002Counsel's status report received (confidential)
  from atty Levine.
Mar 14 2002Respondent's brief filed
  (222 pp.)
Apr 2 2002Request for extension of time filed
  To file reply brief. (1st request)
Apr 4 2002Extension of time granted
  To 6/3/2002 to file reply brief.
May 13 2002Counsel's status report received (confidential)
Jun 5 2002Request for extension of time filed
  To file reply brief. (2nd request)
Jun 10 2002Extension of time granted
  To 8/2/2002 to file reply brief. Counsel anticipates filing that brief by early 12/2002. Two further extensions totaling 120 additional days are contemplated.
Jul 15 2002Counsel's status report received (confidential)
  from atty Levine.
Aug 1 2002Request for extension of time filed
  to file appellant's reply brief. (3rd. request)
Aug 8 2002Extension of time granted
  To 10/1/2002 to file appellant's reply brief. After that date, only one further extension totaling 60 additional days is contemplated. Extenstion is based upon the representation of counsel Joel Levine that he anticipates filing that brief by early 12/2002.
Sep 13 2002Counsel's status report received (confidential)
  from atty Levine.
Sep 30 2002Request for extension of time filed
  To file appellant's reply brief. 4th request)
Oct 2 2002Extension of time granted
  To 12/2/2002 to file appellant's reply brief. After that date,no further extension is contemplated. Extension is granted based upon counsel Joel Levine's representation that he anticipates filing that brief by 12/1/2002.
Oct 29 2002Compensation awarded counsel
  Atty Levine
Nov 13 2002Counsel's status report received (confidential)
Nov 26 2002Appellant's reply brief filed
  (78 pp.)
Jan 9 2003Counsel's status report received (confidential)
Mar 7 2003Counsel's status report received (confidential)
May 9 2003Counsel's status report received (confidential)
May 15 2003Related habeas corpus petition filed (concurrent)
  no. S115894.
Jun 5 2003Filed:
  Declaration of attorney Joel Levine (confidential).
Jun 9 2003Compensation awarded counsel
  Atty Levine
Jun 9 2003Compensation awarded counsel
  Atty Levine
Sep 21 2004Exhibits requested
  People's: 17, 18, 46, 47, 48, 52, 61, 62, 79, 80, 81 and 85.
Sep 28 2004Exhibit(s) lodged
  People's: 17, 18, 46, 47, 48, 52, 61, 62, 79, 80, 81 and 85.
Nov 19 2004Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the January calendar, to be held the week of January 3, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Dec 1 2004Change of contact information filed for:
  attorney Levine.
Dec 8 2004Case ordered on calendar
  1/4/05 @1:30pm - San Francisco
Dec 21 2004Filed letter from:
  appellant's counsel, dated 12/17/2004, re focus issues for oral argument, request to be represented by two counsel at argument and request for 45 minutes for argument.
Dec 21 2004Filed letter from:
  respondent, dated 12/16/2004, re focus issues for oral argument.
Dec 22 2004Order filed
  Appellant's request for permission to be represented by two counsel at oral argument is granted.
Dec 30 2004Filed letter from:
  appellant's associate counsel, dated 12/29/2004, re focus issues for oral argument.
Jan 4 2005Cause argued and submitted
Jan 24 2005Compensation awarded counsel
  Atty Levine
Mar 21 2005Opinion filed: Judgment affirmed in full
  Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Brown, & Moreno, JJ.
Apr 21 2005Remittitur issued (AA)
Apr 28 2005Exhibit(s) returned
  People's 17, 18, 46, 47, 48, 52, 61, 62, 79, 80, 81, and 85.
Apr 28 2005Received:
  acknowledgment of receipt of remittitur.
May 9 2005Received:
  acknkowledgment of receipt of exhibits.
May 13 2005Received:
  acknowledgment of receipt of remittitur.
May 25 2005Order filed (150 day statement)
Jun 24 2005Application to stay execution filed
  application for emergency stay of execution of sentence of death.
Jun 28 2005Received:
  letter from U.S.S.C., dated 6/22/2005, advising cert petition filed as No. 04-10679.
Jul 20 2005Stay of execution order filed
  Application for emergency stay of execution of sentence is GRANTED.
Jul 21 2005Order filed
  The order filed on July 20, 2005, granting the stay of execution of sentence of death is amended to read, in its entirety; The "Application for Emergency Stay of Execution of Sentence of Death," filed on June 24, 2005, is granted. Execution of the judgment of death entered against Richard Stitely by the Superior Court of Los Angeles County and affirmed by this court on March 21, 2005 (35 Cal.4th 514), is hereby stayed pending final determination of (1) the petition for certiorari pending in the United States Supreme Court (04-10679) and (2) the petition for writ of habeas corpus pending in this court (S115894).
Oct 3 2005Certiorari denied by U.S. Supreme Court

Jul 20 2001Appellant's Opening Brief filed. (285 Pp.)
Mar 14 2002Respondent's brief filed
Nov 26 2002Appellant's reply brief filed
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