*1 Aug. No. 21532. [Crim. 1984.] PEOPLE,
THE Plaintiff and Respondent, ALCALA, RODNEY JAMES and Appellant. Defendant Aug. No. 23258. [Crim. 1984.]
In re RODNEY JAMES ALCALA on Habeas Corpus.
Counsel Court, Monroe, David A. Keith C. under Supreme appointment and Appellant Zimmerman and Monroe & Riddet for Defendant Petitioner. Denvir,
Quin Defender, Millman and Public Michael G. Joseph State Levine, Defenders, Robert R. Gross and C. State Public Samuel Deputy Defendant and Appellant. Vanderet as Amici Curiae on behalf of General, Robert Attorneys and John K. Van de George Deukmejian Kamp, Kremer, Philibosian, General, J. Daniel Attorney H. Chief Assistant General, D. Harley Mayfield, Assistant Michael D. Attorney Wellington, Hanoian, Benke, Deputy Patricia D. Bruce Daniel Rosen and Louis R. General, for Plaintiff and Attorneys Respondent. Huffman, Miller, Jr., (San Richard D. Diego),
Edwin L. District Attorney District Chief and Paul M. Morley, Deputy District Deputy Attorney, as Amici Curiae on behalf of Plaintiff and Attorney, Respondent.
Opinion on one count
GRODIN, J. Alcala was convicted Rodney James Defendant Code, 187-189) of a (Pen. deadly weapon of first with use murder degree §§ (id., (b)) subd. one (id., 207). count of § forcible kidnaping § (All statutory indicated.) references are to the Code Penal unless otherwise Defendant admitted a lewd conviction and prior prison sentence *10 lascivious (§§ 288, conduct upon a child under 14. 667 et Under the seq.) law, 1978 death penalty a circumstance that the murder occurred in special true, the of (§ 190.2, course a (a)(17)(ii)) subd. was found and kidnaping defendant was sentenced to death. This is automatic. Defendant has appeal also filed a related petition for habeas corpus.
We will conclude that the convictions and circumstance finding special reversed, be must since the admission of offenses constituted prior preju- error However, dicial on those issues. will defendant’s contention reject we that the double of jeopardy clause bars retrial certain because allegations the valid at evidence the trial legally first was insufficient to them. support We will also hold current may be retried all counts of the information of regardless preliminary hearing. asserted his irregularities
Investigation the 20, 1979, On of afternoon June Robin left the 12-year-old Samsoe of Huntington Beach her friend apartment bicycle Wilvert to a Bridgett ballet lesson. On July William a of a service member forest Poepke, crew, came in spraying Robin’s scattered a remote mountain upon remains neck, ravine above Sierra The skull the and Madre. was from the separated lower teeth were fractured in a a manner consistent with blow from a hard object. left foot and of the hands were portions missing.
A “Kane Kut” kitchen knife was found It bore a of nearby. minute drop blood, human A in unknown. beach towel discovered the con- type vicinity tained of A “wipe” stains A blood. blood was mixed with rocks Type type and leaves in found the area.1 No was for one tennis shoe clothing except which bore name Because of advanced state of Robin. decomposi- tion, death, it was of to determine the time and impossible medically cause had whether Robin been molested. sexually that,
The police shortly learned before she and Robin’s disappearance, had been accosted at the beach a their Bridgett man. With strange per- mission, had several two stranger including taken of the pictures girls, a carefully He or ran posed away quickly Robin. walked photograph when an Jackye Young, adult acquaintance Bridgett’s, approached. of the Young a sketch Bridgett helped police composite prepare Defendant’s former photographer. recognized drawing. officer probation apparently type 1Robin’s blood was type A. molester, known penchant a child on defendant’s record as
Based the area that he children, frequented indications prurient photography warrant to arrest found, obtained the police where Robin’s was body arrested defendant was and car. On July defendant and search his home carried search Park, the residential Monterey in his bedroom found; was dated the receipt locker was A for a Seattle storage out. receipt house, which set in Kut knife There was a Kane after Robin’s death. set. from the mother, missing but no knife was with his defendant shared Police dis- warrant. under was later searched The Seattle locker storage kitchenware, of photographs quantities covered cold-weather clothing *11 film, earrings. and a of gold-coated and pair
Guilt Trial
A. case. People’s Murchland, they then testified then and Joanne
Toni Esparza, identified as both they A man were at Beach on June 1979. Huntington He also contest.” for a “bikini photo defendant asked to take their pictures numbers. to their get phone offered them a ride and and he tried marijuana, television on contacted saw defendant’s they picture when They police news. the beach Werts, with defendant at 15, told of a
Lorrie similar experience Her locker. storage her in the Seattle on June 20. Police had found photo Elmendorf. Patty her narrative was confirmed in large companion, part beach in early at the Several other testified to seeing people varied. 20th, mid-afternoon and clothing appearance on the details of though court, defendant as the photog- In identified Wilvert Bridgett positively 2 and June between and Robin had met at the beach on she rapher confirmed that identification. Jackye p.m. Young to Bridgett’s apartment she and Robin returned According Bridgett, lesson; was ballet she to a 4 about 3:10. Robin said she had to hurry p.m. her Robin offered Bridgett to toe.” excited because she was “moving up handlebars, which bike, turned-up Schwinn 24-inch model with a yellow lightly Robin left dressed building. in the of the laundry apartment was room been since. T-shirt, shorts, missing bike has and tennis shoes. The in a red owned a mother, who Frazer, Fleming, Beverly Robin’s Marianne due Beach, that Robin was confirmed dance studio in Huntington children’s and gym- ballet She had taken at a 5 dance class. but never arrived p.m. nasties since she was four was about her After her dancing. serious recent accident, mother’s Robin had to answer at the studio arranged phones for her pay classes. Both would said Robin never Bridgett Fleming miss a class from disinterest. worker,
Dana a Crappa, forest service She key evidence. presented member crew which on spraying had discovered Robin’s body July 2. She had been interviews and evasive at uncooperative police pre- new, what liminary hearing. Much of she said trial was she displayed great distress the witness stand. had
Crappa admitted a near-collision with a Datsun previously distinctive like defendant’s on the of June at Ren- evening 21. Datsun was parked Turnout, dezvous less a mile than from the crime the car was scene. Beside a man levis wearing and a stained The car to have dirt T-shirt. appeared kicked under the up tires. information, confirmed that
Crappa but now revealed under persistent questioning she had seen the same Datsun on the evening, previous *12 June between 5 and 5:30 The June encounter took p.m. place 11,” “Marker a turnout less than 300 feet from where Robin’s was body her, found. said two Crappa with their backs to a man and a small people hair, with girl long blonde were ravine the the from road. walking up away man, The T-shirt, wearing levis and a the forcefully steering” was “sort girl the could up gully. not see whether he was her or Crappa touching a The turned holding weapon. man and looked “straight through” Crappa, who be thought but continued on. something might wrong had testified at the that the June 21 encounter
Crappa hearing preliminary occurred between 10 and 10:30 since her Having retraced activities p.m. day, court, that she now it was more like 8 to In thought 8:30.2 Crappa certain, declared she was almost but not “100 that de- percent positive,” the fendant was man she seen on had both occasions. further testified for the first time that she returned to Marker 11
Crappa between and 7:30 the on the of June and walked ravine evening up with a flashlight. With extreme the elicited she difficulty, prosecutor had discovered a of the body. Part face was and the apparently gone, corpse, unclothed, was but missing, cut The hands and feet were “pretty up.” Crap- say could not whether had been and “remember” pa they cut off could not whether legs body, the were hacked The head was “next to” the up. timing significant, presented spoke by 2The the evidence that since defense Kelleher, girlfriend, telephone p.m. the 21st. Beth from his home around 10 tennis a and yellow saw blue if it was she Nearby she could not tell severed. no knife. There She found and a T-shirt. and what looked like shorts shoe no Horrified, told one. left tire in the she quickly were tracks area. crew which recounted, of a later, she was days spraying Four Crappa part in the bones same a pile included William came Poepke. Poepke upon a deer, he bone and up those a picked area. the remains were Thinking it at She no tossed her. knew it was deer. but, dark, It was again.
That visited scene night, said she the Crappa, She could a shiny object. closer to the beam roadway, flashlight caught her it was. She saw but now that say not for sure that it a knife believed was then, She arm body, by right missing. “drawn out” and skeletal shorts, T-shirt, and tennis shoe were still found blonde some hair. skull, the authorities were there. Three later discovered days Poepke called. Frazer, mother, that the recovered earrings
Marianne Robin’s confirmed from Seattle like a Robin have may defendant’s locker looked storage pair borrowed from her. lost from “dangle” Frazer that after explained of the one she off the with nail so clippers other pair, pinched dangle them, would match. had been earrings they Robin sometimes borrowed Frazer, since her the recovered ear- missing disappearance. According removed, and a resembled her after had been rings closely pair dangles blemish on one of the looked mark left her clip- like earrings pinch tests Frazer’s caused the pers. Laboratory to discover whether clippers blemish were inconclusive. *13 Rob-
Two witnesses. Orange County jail inmates as appeared prosecution ert Dove he between defendant and an- testified overheard a conversation inmate, Dove, other Michael defendant denied stab- Herrera. According Robin, he unconscious.” bing had her saying only “slapped Later, her.” They told seen me take “nobody defendant Dove himself that “film” him, defendant, would and the never convict said without “bike,” about would not find the In a conversation they photog- bike. defendant said he to a in mountains that liked to raphy, vaguely go place mentioned Big near towers where see He also lights. water one could city not (The Canyon, Big scene in Santa Anita Tujunga Canyon. death was towers, were it was water visible Tujunga, city lights but near fairly friend—apparently from the victim’s nearby.) road Defendant said the under hypnosis.” Wilvert—had been unable to him “even Bridgett identify Herrera who lawyer thought testified that defendant said he had seen a beach,” at the the case no to take pictures was weak because “it’s crime and there was no positive identification anyway. Defendant said he had gotten Robin into car by offering pay magazine her which photos, wouldn’t event, take long.3 In any he told her he would her her drop He had appointment. trouble getting bicycle into the car. Once under- he locked way, Robin’s door. Defendant was evasive about the route he took, but talked about the Pacific Coast Highway and said “the scenery nice.” Herrera “worried, indicated that he “thinks” Robin was scared” and “wanted to out of the get car.”
At some point, Herrera, according if asked her she had ever posed nude. She was crying, and defendant started the shit out “slapping her”; it was a “weird situation” and “a Robin trip.” became “uncon- scious,” and defendant mountains”; about her thought to “some taking Herrera remembered the name San Gabriel. Defendant finally decided to leave her where she was. Later he abandoned the bike behind a “Thrifty or Drug Store Thriftimart or some store,” kind thrift he believed the would not police version, find As in it. Dove’s defendant denied shooting Robin. stabbing The However, missing bicycle was never found. of a manager charity thrift store in El Monte testified he had found a yellow bicycle Schwinn with turned-up handlebars behind the store during July sold it. bike inwas unusually condition for good donation. charity
Over defendant’s strenuous objection, evidence of his conduct on prior occasions was introduced. It tended to show that defendant had a history car, enticing into his young girls them to taking isolated and sub- places, them jecting to forced sexual and violence. This activity evidence dis- cussed in detail greater below.
A coroner deputy testified Robin’s that remains had been chewed an- imals, which accounted for much of their scattered and mutilated state when However, found on July 2. a forensic dentist the lower opined chips teeth were very likely produced by forceful contact with a blunt object, *14 whether before or after death.
theAt conclusion of case, the prosecution’s defendant moved for acquit- (§ 1118.1.) tal. denied, The motion was that an of child except allegation molestation as a circumstance was special stricken from the information. 3Beverly Fleming, the operator, dance studio had that Robin to a testified wanted be movie a star or model so her mother would not work have to so hard. B. case. Defense he Robin disappeared, after day
Tim Fallen testified that on June before 20 minutes Beach only her a riding yellow Huntington saw bicycle a was wearing was sure she him her Fallen a showed policeman picture. one. a red T-shirt, last seen in white all other witnesses said she was though he blonde another girl, When with that of asked Robin’s compare photo identified them as the same person. Vasquez
The on one Raul Vasquez. defense to cast sought suspicion his encounter each described Sierra Madre Police Officer Gerald Crawford According of June 22. at the Marker 11 turnout at 11:15 on the night Crawford, the ravine. Crawford the road from was toward Vasquez walking was himself relieving asked what he that he was doing, Vasquez replied name when asked. for did not his give waiting girlfriend. Vasquez in his back Crawford him and found wrench heavy pocket. down a patted “nervous,” and “up- In Crawford’s “shaky,” seemed opinion, Vasquez set,” either something, as “he didn’t want me to locate someone though window of Vasquez’ inside his car or in the The left rear area.” passenger out, back seat. car broken covered the was and a brown beach towel large There of Budweiser was broken on the rear seat floor and a glass six-pack is often used the front floorboard. Crawford conceded that the turnout activities. drinking illegal drug Rose, witness, the owner a rebuttal Robert prosecution produced According a where in June 1979. body shop Vasquez employed Rose, full on June days time card showed he had worked Vasquez’ June through after always leaving p.m. Cerda, De La
The defense alibi Christine several witnesses. presented sister, him near Montebello defendant’s at her home stated she saw sister, Troiano, 4:30 testified that on June 20. Marie another p.m. Her bill her on June 20.
called collect at her Fremont home at 5:54 p.m. house Park Monterey reflects that a call was made to her number from at that time. Kelleher, that defendant former stated
Elizabeth defendant’s girlfriend, 21st, on the leaving made her home at p.m. a one-minute call to 9:15 At 10:08 residence. bill for defendant’s That call on the message. appears back, she called him 19 minutes. speaking residence, Park mother, Monterey he
Defendant’s with whom shared She Beth Kelleher. or the one to denied either the Fremont call making *15 admitted that of many hers, the Fremont on calls her bill and she were that had with spoken by phone Beth Kelleher on a number occasions since defendant’s arrest. She also conceded that her Christine often used daughter her phone.
David a defense Carpenter, testified he drove from investigator, Marker 11 to the Monterey Park residence of the El Monte thrift On by way store. instructions, counsel’s he afternoon, left Marker 11 at 5:15 on Thursday a route, used the most logical and drove at the limit. He arrived about speed 5:58.4
Next, the defense concentrated on discrediting Dana William Crappa. that, Poepke testified just after their first payday as he cooked firefighters, a dinner pizza “from first She Crappa mentioned she paycheck.” [their] had had just a near-accident at Rendezvous Turnout. received their They first 14, checks on June 13 or and in June was the middle of pay a She period. accident, never mentioned another and they both that agreed the incident must have occurred the first two weeks Juné. during
Under cross-examination, intense had testified that her extreme Crappa reluctance to come forward with her evidence was caused by overwhelming horror, denial, feelings guilt, and had She described recur- depression, ring nightmares about the she had seen. The never things were nightmares details, quite said, identical in all she rise to some concern that giving they had confused her actual memory. She wanted to be certain of completely her facts before she revealed them to the authorities.5
The defense now to sought show that much of was testimony Crappa’s confabulated, a product of which methods improper police interrogation played upon Crappa’s confusion and emotional turmoil.6 were intro- Tapes duced of extensive interviews conducted with Detec- separately Crappa tives Droz and Robison. Defense and conflicting prosecution experts gave apparent purpose 4The suggest was to gotten defendant could not have home from Marker 20th, Crappa allegedly where saw him between in 5:30 time make 5:54 Simple call Fremont. proof is persuasive. mathematics demonstrate that not cross-examination, 5During there been her re sparring had much about whether evasive sponses police questioning, preliminary hearing, outright at were lies. For ex ample, she was hearing lights asked whether its on” when she the Datsun “[had] it confronted on the 21st anybody that could whether “there inside see.” [she] [was] trial, only She answered thing that seeing Grappa “[t]he I remember is At char car.” “answering [literally] acterized this as question response I asked” conceded the was but misleading light in of her true knowledge. process by 6Confabulation gaps memory which the with witness fills false information, others, imaginary implanted by often and comes to believe in the truth of his (See reconstruction. Shirley 64 [181
621 “brainwashed” had been views on whether the that Crappa tapes suggested state, led, or in memories. otherwise while false a suggestible evi- intended to undermine the defense witnesses Finally, produced inmate, Drake, insisted dence Dove and another by Joseph Herrera. given Rather, trial. that in jail awaiting defendant had no information while given Drake, he, Dove, “admissions” said had fabricated defendant’s Herrera inform- strike an as of a from television part plan newspaper reports, Jones, public ers’ with the a former deputy authorities. bargain Gregory defender, revocation he Herrera in a declared that had probation represented for Herrera’s matter; court and counsel there had discussed consideration enforcement with two law this case. testimony responded prosecution his repu- that witnesses who had used Drake as an informant. stated They tation for was credibility low.7
Principal Phase Guilt Issues in- at trial was legally Defendant that the valid evidence argues because sufficient to show either murder or forcible kidnaping, premeditated aside, and that be set finding convictions circumstance must special the double further are barred proceedings allegations unproved 1, 16-18 clause. States 437 U.S. jeopardy (E.g., Burks v. United 1, 12-14, 2141]; (1980) 27 Cal.3d L.Ed.2d 98 v. Green People S.Ct. [57 information 62 609 He also that the P.2d Cal.Rptr. urges evidence at his must be insofar as it since the quashed charges kidnaping, on that was to establish cause preliminary hearing insufficient probable (See et count. 995 seq.) § However, alternate
We both we defendant’s reject contentions. accept have af- may that trial of his crimes premise prior disclosure at improper fected the We must therefore reverse jury’s guilt deliberations. in detail. special reasoning circumstance determinations. We discuss our Evidence A. kidnaping. of forcible force that,
All concede at the time of Robin’s disappearance, parties or was from fear was a unless necessary kidnaping asportation element 209; state, (§ former outside the or done extortion. slavery, robbery, for Green, 1, 64; 207; Camden v. People supra, § 1110].)8 813-814 De- Cal.3d urges and Dove’s trial petition corpus 7The for habeas also that Herrera’s filed herein testimony perjured. any asportation child under 207 was amended in that of a provide 8Section 1982 to (See (b).) purposes molesting kidnaping. him or new subd. her is fendant contends vigorously of force or fear was We lacking. proof *17 think a rational trier of fact could find doubt that force beyond a reasonable or fear was used to (1980) Robin. 26 Cal.3d transport (People v. Johnson 557, 431, 738, 578 1255].) P.2d Cal.Rptr. [162 606 16 A.L.R.4th Even if the victim’s initial obtained without force or cooperation is “ the of force, threat if occurs the restrains kidnaping accused ‘subsequently his victim’s by force liberty the victim to him compels accompany Camden, 808, further.’” (People 814, v. supra, quoting People Gallagher v. (1958) 414, 164 464]; 420 Parnell v. Cal.App.2d [330 Superior 906].) Court 119 402 Cal.Rptr. Cal.App.3d [173 “The force used the ‘need against victim not be The movement is physical. forcible where it is the which the accomplished through orders giving victim feels to compelled because he or fears harm from obey injury she or the accused and such is not the circum apprehension unreasonable under (Parnell, stances.’” supra, (1974) 10 People v. Cal.3d quoting Stephenson 660 820].) 517 P.2d Cal.Rptr. for Imprisonment in a vehicle is any substantial distance moving Thus, forcible asportation. where the victim the desire to leave expresses car, or the not to but accompany going, defendant the direction he is the defendant the victim ignores plea and continues to drive so fast that Camden, cannot escape, force fear is 16 supra, established. v. (People 808, 811-812; Cal.3d Salle 146- People La Cal.App.3d Such a to a threatening situation is particularly (Parnell Court, 392, 402.) child. v. Superior supra, Cal.App.3d
Here, there is both direct and circumstantial support charge of forcible The Robin kidnaping. introduced evidence that child, ballet responsible motivated to meet her late-afternoon highly ap Yet she never pointment. arrived and Dana for that appointment, Crappa time, claimed to have seen her in defendant’s at the scheduled company some 40 miles from Defendant distant both her home and the dance studio. him was a virtual found stranger, testified that Robin had Jackye Young could “strange.” infer she had not jury reasonably accompanied that him voluntarily.
Moreover, inmate that he had Herrera testified to defendant’s statement lured Robin into then his automobile with a ruse magazine photos, about circumstances, locked the car’s only jury door. Under the passenger-side could conclude that the door to Robin’s escape. was locked prevent
Thereafter,
Herrera,
told
High-
defendant
he drove toward Pacific Coast
this
Robin
she
out of the car” and
way. During
get
said
“wanted
period,
asked
be
let out
next corner. Defendant failed
comply.
that
suggesting
Coast Highway,
from Pacific
The death scene was far
after she
and distance
a substantial period
Robin
in the car for
was kept
that she gave
to assume
was not required
for her freedom. The jury
asked
Her motivation
no further protest.
by voicing
new consent to the asportation
ig-
defendant
when
created
elsewhere, and the coercive atmosphere
to be
remote.
of new consent
her
make
possibility
nored
original plea,
kid
doubt
a reasonable
beyond
We need not be convinced
“any
rational
whether
determine
merely
We must
Robin
force.
naped
*18
Johnson,
26
supra,
(People
v.
could be
trier of fact” at all
so persuaded.
307, 318-
443 U.S.
Jackson
576,
(1979)
Virginia
557,
v.
quoting
Cal.3d
den.,
suggests of credit” as a matter law.9 411 provides Evidence Code section
The contention lacks merit. statute, direct by evidence is required the where additional “[ejxcept for proof full credit is sufficient evidence of one witness who is entitled to ap forth the (Italics added.) exceptions The Penal Code sets fact.” any 1103; also Cal. (§ see include treason They in criminal cases. plicable (§ 1103a I, witnesses]), Const., 18 or two perjury art. confession § [court insufficient]), abortion other by single of testimony person [contradiction (§ testimony prose 1108 for enticing away prostitution [uncorroborated (§ 1110 token insufficient]), theft without false [false cutrix pretense (§ 1111 testimony witnesses and accomplice [in or two writing required]), Moreover, uncorroborated]). corpus if for conviction sufficient admissions. the accused’s solely by of a crime not be may proved delicti 313, P.2d 441, 492 455 (People Beagle (1972) Cal.Rptr. 6 Cal.3d v. [99 discussion, post.) 1]; see interested witness’
But for these an “entitle[ment] exceptions, (E.g., trier of fact. matter for the under 411 is a full credit” section we corpus, but for habeas argument fully petition more in his develops 9Defendant appeal. properly consider it as raised 624 904, v.
Thompson 918-919, Occidental (1973) Ins. Co. 9 Cal.3d Life 473, fn. 6 Thus, 513 Cal.Rptr. 353].) P.2d for there is no example, [109 bar to conviction of a crime sex on the uncorroborated solely testimony 284, complaining (E.g., (1978) witness. v. Scott People 296 876, 123]; Cal.Rptr. 578 P.2d 54 Sylvia [145 v. Cal.2d 781], Cal.Rptr. on other grounds, People disapproved Kelley Cal.2d 424 P.2d for exception which defendant deems accomplice testimony, most analogous, arises from motive to shift overwhelming accomplice’s blame so, to defendant. He must do own either minimize his liability trial, or to convince the authorities it him to is worth obtain his immunizing testimony against defendant. Whatever consideration a jailhouse infor mant direct, may expect to lie testifying, motive is ab compelling sent.
Here, the jury of the selfish motives for Her- fully apprised possible *19 (See fn. (9) rera’s testimony, and it was labeled false another inmate. by !9*) No basis for a appears judicial to the of section clear exception policy 411.10
Though does the defendant not address we note that the point, delicti of a corpus crime must be of accused’s ex the proved independent 441, 455; trajudicial admissions. v. 6 1 (People Beagle, supra, Cal.3d see Witkin, 89, Cal. (1963) Thus, Crimes before 85.) p. jury § Robin, could find that a case or must defendant of force fear kidnaped from appear evidence other than account of conversation with Herrera’s defendant. The jury (CALJIC 2.72, modified.) was so No. as instructed. be independent may (People circumstantial evidence proof by
v. (1977) 1, 275]), Manson 71 25 and it need Cal.App.3d Cal.Rptr. [139 not be a reasonable doubt. A facie beyond showing, slight prima per- law, 10Even if Herrera’s statements must be “corroborated” as a matter such corro boration testified to independent support by exists here. There need not be for each fact witness; suspect purpose corroboration if it to connect the de is sufficient this “tends reasonably may [charged] way satisfy fendant with the commission offense in such a of the as ” 74, jury (1965) People that the 63 Cal.2d telling (E.g., is truth. v. [witness] Holford , 423], 245, Cal.Rptr. Lyons (1958) 82 50 People 167 403 v. Cal.2d 257 quoting [45 P.2d Green, 1, 32-34].) grounds, supra, P.2d v. 27 Cal.3d People [324 on other 556] [overruled sufficient, entitled, “although slight Circumstantial evidence evidence ‘is when such ’ ” itself, (Holford, supra, People standing by quoting to but v. McLean little consideration. 480, 32].) 84 482 the abduction here surrounding Cal. P. The circumstances [24 Moreover, purpose. jury serve that to believe of defendant’s was entitled the truth Robin, portions statement to Herrera that even if it other he refused release disbelieved of the remarks Herrera attributed defendant.
625 committed, is sufficient. that a crime the reasonable inference mitting 391, 641 P.2d Cal.Rptr. 115 (1982) 31 Cal.3d v. Towler (People [181 12], cert. 535, 545 P.2d 1253]; Cal.2d Mehaffey [197 v. People 399].) proof If the den., independent L.Ed. 69 S.Ct. U.S. 900 [93 then be may admissions the accused’s meets this threshold requirement, McMonigle (People on all issues. considered to the case strengthen 745].) P.2d (1947) [177 evi standard, preliminary was adequate this there by
Measured was ab admissions, that Robin dence, to suggest from defendant’s aside seen, pre evidence the circumstantial ducted force or fear. As we have will had accompanied it that Robin unlikely sented made highly to the death scene. ingly “conjec- not “speculative,”
An inference of force or fear on this basis is delicti. tural,” establishing corpus or “fantastic” in the context of 390, 395- (1979) 96 Cal.App.3d Jones v. Court (Compare, e.g., Superior 809]; (1945) 71 Cal.App.2d v. Schuber satisfied, there 776-777 delicti rule was The corpus was sufficient evidence forcible kidnaping. Evidence
B. murder was premeditated. and deliber
Defendant evidence argues premeditation murder. We disa ation is degree insufficient to sustain a verdict of first gree.11 *20 550, 447 (1968) 70 15
People Cal.Rptr. v. Anderson Cal.2d [73 evidence of circumstantial (Anderson) isolated three categories 942] which, that an inten combination, in the finding might justify appropriate The first concerns “plan tional was than killing calculated rather impulsive. the actual killing did prior about how and what defendant ning”—“facts toward, and expli in directed activity which show that was engaged [he] “mo in, involves . . The second cable as intended to result . .” killing with and/or conduct relationship tive”—“facts about the defendant’s prior to kill infer a ‘motive’ reasonably the victim from which the could jury of killing “the manner . The third on methodology—whether . . .” focuses intentionally have must was so that the defendant exacting particular in a his victim’s life to take killed to a design’ according ‘preconceived degree, murder in the first theory a verdict of 11Premeditation was the sole available for (arson, crimes specific additional charge any no one of the since there was or evidence degree support will a first robbery, burglary, mayhem, molesting) which rape, or child degree on second (§ 189.) jury was instructed finding felony-murder under the The doctrine. 187-189.) (§§ murder, kidnaping. felony upon charge based of forcible 626 way for a
particular ‘reason’ which . jury reasonably can infer . . .” 26-27, all (Pp. in italics original.) in
Evidence one of these only areas most often is insufficient. Where fewer than all three indicia are we “at least present, extremely require (1) evidence of strong or in [planning] (2) evidence of conjunction [motive] (1) with either or (3) (P. 27.) manner of killing].” [deliberate brutal, The fact that a was or involved slaying unusually multiple wounds, cannot alone a determination of oth support Absent premeditation. evidence, er a sudden, brutal manner of is as with a ran killing consistent dom 24-25; of violence with “explosion” as calculated murder. People (Pp. (1982) 21, Robertson 33 77, 279]; Cal.3d 48 655 P.2d Cal.Rptr. [188 People v. Smith 33 698], over Cal.App.3d Cal.Rptr. ruled on other grounds, v. Wetmore Cal.3d 265, 583 P.2d evidence,
Here the viewed to the favorably most People, suggests Robin, defendant met and photographed devised executed a scheme her, to abduct kept fear, her his car a by force drove her considerable distance area, from urban surroundings to a rural then took her on foot away from road to an even more secluded “where others were spot unlikely (Anderson, to intrude.” supra, 27.) Cal.2d could jury conclude he carried a knife with him to the scene used it kill death Robin. Dana testified Crappa that Robin’s was “all cut A Kane body up.” Kut knife blood, human and towel containing a with stains of “wipe” type blood, A were found There a set of similar knives at defend nearby. ant’s home. course,
Of use of a not evidence deadly weapon always plan Anderson, Moreover, kill. (E.g., supra, [knife].) 21-22 as out, not all points “actively conduct with the victim is “planned” toward, directed in, as intended to . .” explicable result . . killing [a] (Id., 26.) Defendant p. his conduct to the homicide was suggests prior *21 (id., and, felonious, “highly 31) ambiguous” at however showed no p. (id., 33, preconceived “intention to kill his in victim” italics original). p. However, victim, when one a a far weaker takes her plans felony against location, force or fear to by an isolated along deadly weapon brings which he it infer he subsequently is reasonable to that considered employs, the possibility of homicide Has- People from the outset. v. e.g., (Compare, (1982) 841, 640, 776]; kett 30 Cal.3d 850 640 People P.2d Cal.Rptr. [180 30, cf., (1965) 692, 382]; v. 62 Hillery Cal.2d 704 401 P.2d Cal.Rptr. People Quicke (1964) 155, 617, v. 390 61 Cal.Rptr. Cal.2d 158-159 [37 Thus, of killing—the there substantial evidence a “planned” most of the Anderson test. important prong killing. record also discloses a motive for the Apparently plausible were and his vic-
there no to the defendant eyewitnesses abduction except tim. If the ravine at defendant saw Dana drive as he walked up Crappa Robin, Marker 11 with he have attached may any significance not then Dove, the even after encounter. to Robert defendant felt safe his According her,” arrest “never find “nobody because seen me take would they bike.”
The evidence committed thus that had a serious suggests felony, on who kidnaping, the victim and believed was the could only she person ., her implicate him. he could . . he by killing “[H]ence [surmise] Haskett, would eliminate the only (.People [witness] [crime].” 841, supra, 850.) Cal.3d
Finally, Dana of the cut Crappa’s body—“all up”—conveys description the impression of and jaw stab wounds. to the teeth also multiple Damage indicated a blow to head in with a blunt When object. light considered of evidence, and motive planning killing this brutal method of supports the inference death, of a calculated to ensure rather than an uncon- design Anderson, 15, sidered (See “explosion” violence. 29- supra, 30.)12 circumstances, Under all the find premeditation we evidence of ample and deliberation.13
C. Motion to quash probable lack cause. information for
Defendant filed a under to set motion section 995 aside pretrial the information on that the failed to estab grounds had preliminary hearing lish probable cause. He strike on the court’s refusal to this challenges ground charge circumstance of special kidnaping. that, recognize 12We both jailhouse Dove’s and accounts of their conversa Herrera’s defendant,
tions with stabbing he denied His and Herrera Robin. comments to Dove also suggested that he only upset reacted with sudden violence when she became resisted Nonetheless, him. jury obliged accept not defendant’s version. intentional, killing, 13Because there premeditated was substantial evidence of an which 11, ante), jury (see evidence the must relied to find murder we do not degree have first fn. problem face the Superior Cal.Rptr. addressed in Carlos v. Court Cal.3d 131 [197 862], i.e., 672 P.2d charged “whether a defendant be or convicted murder with can special [here, felony kidnap circumstance of murder murder in the course of a forcible ing; 190.2, (a), (a)(17)(ii)] see penalty under the §§ subd. subd. 1978 death initiative added; (Italics if he did not killing.” intend to kill or to aid in the of a see commission 913], v. Sedeno Cal.3d overruled 720-721 518 P.2d *22 668, 684-685, grounds, (1979) People Cal.Rptr. on other v. Flannel 25 Cal.3d fn. 12 [160 1].) 603 P.2d in
Illegalities commitment pretrial other than those proceedings, which are “jurisdictional in sense,” the fundamental are not reversible error se on an per from appeal Rather, the trial. “defendant subsequent [must] show that he was deprived of a fair trial or otherwise suffered as prejudice ” a result of the error at the preliminary examination. v. (People Pompa- (1980) 27 Cal.3d Ortiz 612 P.2d [165
Defendant that suggests a failure of evidence at the preliminary is a hearing Such, jurisdictional course, case; defect. of is not the were it so, the jurisdictional would swallow exception the rule.
Prior to Pompa-Ortiz, People
v. Elliot
An evidentiary at the deficiency does not meet that preliminary hearing standard. The statutes have that lack of long provided cause at the probable preliminary is waived all hearing if not purposes timely pursued prior (§§ 995, 996, 999a; Elliot, trial. 505.) It that a supra, follows p. failure of probable cause is not an unwaivable “jurisdictional” defect the reversal, commitment which information, warrants or a of the quashing even though defendant’s trial was fair.14
Defendant claims he was
at trial
the
court’s
prejudiced
superior
failure to strike the
for lack of
At
kidnaping charge
cause.
probable
preliminary hearing, jail inmate
Ricky
direct
Rodriguez provided
only
evidence on the kidnaping
charge;
alleged conversations
description
with defendant suggested that Robin had not been
in defendant’s car
kept
by force or fear. The
to the
no
People urged
of force
magistrate
proof
or fear was
necessary
demurred,
show
cor
kidnaping.
magistrate
rectly citing People
v. Stephenson,
v.
supra,
14Indeed, it
probable
was a
began
cause case which
confusion about
effect on
appeal
noted,
pretrial
errors in
proceedings.
Pompa-Ortiz
commitment
Greenberg
As
Superior
713],
Court
“jurisdictional”
629 Camden, 16 808, but still over on supra, kidnaping Cal.3d bound defendant charges. Herrera, trial,
At the Dove and who inmates Robert People produced testified that Defend- forcibly. defendant admitted Robin in his car keeping ant urges that the “misled” then magistrate, improperly thus the People the facts” at trial “fit the “changed law.”
However, theories, bound evi- People by are not at trial factual dence, cf., or testimony (But adduced at the Coleman preliminary hearing. 396-397, 387, Alabama 1, 9-10 90 S.Ct. U.S. L.Ed.2d 1999]; 584, Hawkins v. Court Superior 435, 586 value of as de- preliminary hearing [general 916] fense tool].) he discovery Defendant does not claim was trial surprised by the use of Dove and rather different Rodriguez, Herrera than their motion, If error testimony. occurred on the section we find no can prejudice.
D. prior Introduction crimes. court,
inAs the trial defendant stren urges that uously evidence of admitted uncharged conduct prior improperly and considered as evidence of his He on the rule guilt. general against relies use of prior conduct to show a to commit” the crime “disposition charged. (Evid. Code, (b).) crimes (a), subds. He argues prior also § should have been in event any excluded as than prejudicial probative. more (Id., (b).) subd. §
In response, the invoke the allows ad- which statutory exception intent, mission of “motive, conduct prior to show . . . . . . . . . plan, [or] identity, (Id., (b).) . . .” it subd. was instructed that could jury § consider (See the evidence on each of those issues. fn. post.)
We theories, conclude were on prior acts inadmissible all these and that the error was all We summarize chal- prejudicial charges. lenged evidence. 25, 1968,
Witnesses testified that on the morning September S., Tali an stopped eight-year-old girl walking along who was school ride, Sunset Boulevard Los He her a entered offered and she Angeles. home, his car. When he detour proposed nearby panicked a short to his she but could not out of moving auto. get house,
Inside the her a of forests defendant showed psychedelic poster Meantime, who trees. a witness had followed defendant called the po- *24 defendant, unclothed, peering and saw lice. arrived minutes later They on found lying door. Tali was down the They out the front window. broke had a se- unconscious, She naked, breathing. and floor, barely the kitchen There was a steel her vagina. vere wound blood was from coming head and equipment. bar her The house was full of photography over neck. 1972, In a and became fugitive. Defendant the rear door through escaped Penal Code section violating returned to California and convicted of he was (child molesting). On in 1974. conviction August on the section 288 Defendant paroled small, J., undeveloped Julie a of October he approached morning Beach. Huntington school in as she was for a bus to waiting 13-year-old, and, conversation, with he himself to her According testimony, ingratiated hesitation, They to school. passed offer of a ride after some she his accepted first, defendant let out. At she asked several times to be her and building, but long, wouldn’t take in the area and said he was an checking apartment be She became frightened. he told her finally rudely quiet. beach (apparently overlooking
When defendant at the cliffs stopped Samsoe), Julie tried to Robin area where he same general photographed door, he and run, grabbed around to her out and but defendant had come get cliffs, her to forced her foot to a spot along her arm. He steered on leave. He then put tried to and her when she leg smoke seized marijuana, liked kiss, boys if she her, and asked arms around her a French gave a ended when The incident when “loaded.” and was she was passionate Defendant’s parole violation. the marijuana arrested them both for ranger he was paroled when until was revoked. He was returned prison again. confession, on this appeal, not challenged to defendant’s
According taped County Riverside H., in hitchhiking who was he up Monique picked The two 15-year-old. well-developed was a 1979. February Monique in engaging together, the night to defendant’s residence and spent drove mountains, where went to some they The next morning, consensual sex. nude, two and of the performing in the took of Monique pictures became frightened At Monique acts some point, simulated sex together. in T-shirt a tied her stuffed up, Defendant to scream and struggle. began He anally. unconscious, her mouth, vaginally and raped her beat her violence, frightened “incoherent” but was not said he had planned Monique he drove Ultimately, of hand. had out about a gotten situation civilization, notified the police. where she back to three nearly criminal propensity evidence of excluding
The rule 1940) (3d Evidence ed. (1 Wigmore, law. in the common centuries old 646-647.) not be objectionable, Such evidence “is pp. § [deemed] value, cause it has it has too much.” no but because appreciable probative (Italics added.) “the ... excessive Inevitably, give it tribunal tempts exhibited, to the vicious to allow it weight record of crime thus either to bear of it too on the take the as strongly or to present charge, proof (Id., justifying condemnation guilt present charge.” irrespective 646; 761, 773, fn. 6 p. v. Schader quoted *25 1, 457 841].) P.2d Cal.Rptr. [80 Code, (Evid.
California’s of law rule codification the common 1101, (a)) is to com subd. absolute where it However probative § applies. sense, 1101, mon (a), evidence must be excluded under section subdivision if the it inference to seeks establish is one of to directly solely propensity commit in crimes general, (People Thompson or of class. v. particular (1980) 303, 289, 27 Cal.3d 883].)15 317 P.2d Cal.Rptr. 611 [165 conduct,
This absolute rule of
exclusion does not apply
prior
criminal,
even if
criminal
which is
than
relevant
more
mere
prove
pre
The
disposition.
test of
is
logically,
relevance whether the evidence “tend[s]
naturally,
by
inference,
reasonable
material
any
establish
fact[s]
the
intent,
as
people
motive,
or
identity,
plan,
opportu
preparation,
[such
nity] or to overcome
to be
the defense.”
any material matter
proved by
sought
(Pe
306,
924],
v. Peete
28
ople
(1946)
Cal.2d
315
P.2d
cert.
[169
den.,
677,
356],
(1947)
However, other-crimes because evidence is so its inherently prejudicial, be is to relevancy “examined with care.” received “extreme It is to be with caution,” and all be doubts about its connection to crime must charged 194, resolved in the 203 (People (1969) accused’s favor. v. Sam 71 Cal.2d 804, Peete, 700]; 454 Cal.Rptr. [77 P.2d supra.)
Moreover, because of its of other evidence inflammatory impact, offenses sometimes must be under a excluded if is relevant [it] “[e]ven . . . that does v. theory (People not . . . .” rely proving disposition 303, Thus, 27 Thompson, 318.) if not rel supra, Cal.3d it inadmissible evant to 315), an issue if in at expressly dispute (Thompson, supra, p. cumulative “merely with to other which the may evidence respect People sound, may 15However venerable and persons the rule can cause frustration. “Reasonable incorrigible fret over the of permitting wisdom an to ‘start his life afresh’ when scoundrel charged umpteenth particular with the of some repetition (People offense. ...” v. Wills- (1979) 451, 289], Watkins Cal.App.3d Cal.Rptr. opn. 99 457 fn. omitted [160 [conc. Kaus, J.].) P. 632 Cal.3d
use to same v. 16 prove (People issue” Guerrero Schader, 366], supra, v. People 548 P.2d Cal.Rptr. quoting all 761, 775), under or if more than prejudicial probative 318; v. Haston (Thompson, p. People circumstances. supra, Cal.2d Robin Sam fundamental in this was the identity
The issue case of defendant’s soe’s and killer. that evidence abductor contend similarity since the crimes was admissible on prior question same person earlier offenses to the current ones that the suggests strongly committed them all. We agree. cannot seeks to fix for a particular
Where prosecution responsibility must crime on modus there be a consistent showing operand!, combination, which, common singly support marks considered (People that the crime signature. inference current bears strong *26 738, 467, 267], Thornton 11 523 P.2d Cal.3d 393, 1118], (1975) 420 overruled cert. den. U.S. 924 L.Ed.2d S.Ct. Flannel, 684, 12; on other 25 Cal.3d fn. grounds, People v. supra, Haston, Sam, 194, 204; supra, v. 69 Cal.2d People supra, Cal.2d in the 247.) to common elements charged various People point to note defendant’s offenses here. that They pattern ap uncharged conversation, them into in entice them proach underage girls, engage leave, automobile, to and take them when wish them they restrain force by locations, he assaults them to remote often outdoor where settings, scenic instances, the In many People emphasize, commits forcible sexual acts. cooperation. he uses as a to the victims’ photography ploy gain H. Monique But the down under examination. similarities break alleged trick, fear. Neither was in force or never restrained defendant’s car by in the Tali S. incident nor the of figured outdoor use settings photography house). The strained People’s in there was camera the (though equipment a showing that Tali by psychedelic those elements theory supplied of was no element pho- of and trees is not There forests poster persuasive. was pho- of the three cases all in the Julie J. incident. In none tography consistent and there seems introductory nothing used as an tography ploy, or unusual to himself. ingratiate in the defendant used techniques defendant, to that locale was important
Despite People’s suggestion Moreover, widely were scattered and dissimilar. the sites of his offenses in cases not consistent of sexual conduct the other was defendant’s pattern “French a kiss” but made no further physical or He Julie J. gave distinctive. mature, and Monique he was arrested. H. was physically advances before of consensual only on her occurred after sessions lengthy the acts committed sex. killed, Most Robin earlier victims were while the importantly, not.16 incidents,
To the extent a is entirely can be found in these it “pattern” unremarkable. The be by similarities noted must common to People definition, substantial of the their portion of child molesters. population By children, victims are who must be to under induced submit circumstances in which of escape detection is The use charm or unlikely. deception, of transportation are means places privacy, logical accomplishing So, those aims. tragically, is violence. The have not convinced us People that a peculiar as pattern defendant’s conduct establishes his past identity Robin’s killer him sex from the class of violent setting apart general offenders against children.
Nor can admission of the crimes be their asserted prior justified by relevance to the question defendant’s “intent” when he Robin approached and her friend at the beach. Aside from modus operandi, prosecutor urged jury consider the crimes on “intent” was this theory an intermediate fact (See the ultimate issue bearing identity. However, Thompson, supra, 14.)17 in seek fn. to connect
ing crimes, events on the and the he beach charged simply assumed issue, the critical fact at that defendant namely get “actually [did] Robin ... with go him.”
The beach encounter certainly has some on the of relevance question that, It is identity. suspicious within her de- hours before disappearance, Robin, fendant know, had a child he did hurried approached not had away when another adult that of intervened. There is no evidence question this encounter was properly admitted. 16The evidence suggests that Tali S. was left for She was in for two and half dead. bed a
months and out of school for four. person who committed young girls which would tend to further show determine consider the when beach would know that he was refer to [the] Samsoe to not [1] 17As There is a report other offenses just taking pictures the taking Joanne a him.” a go prosecutor and a very plan defendant’s motive. with her tremendous Murchland, we don’t short or man who is a up him. may scheme . . . similar to the of declared in period the crime be offered young girls the hills and [f] just difference between man down at Patty It shows motive. of have a man down at time after he tries to sex ... Elmendorf, to the existence of .... pervert, It show why closing argument: is trying [t] important, he intent, It or had who a shows method, Lorrie get to kill her to determine his method of other acts are also available the is a child the we those beach get why Werts], intent, felt, plan “The court will instruct girls he was girl taking afterwards, molester, to show or . . he to scheme ... beach . go actually kidnapping go pictures and the you with with who taking so that she would this, him him; does of identity operation, young girls. down Robin, so pictures [this to especially get this you that you of the Robin could case, why that you to to of
However, crimes add valid to that evidence. ex- prior nothing They hibit no of that specific points which probative similarity might suggest defendant’s to Robin was a to her abduction approach unobserved precursor fact, inference, all, some hours In later. invite if at they such an only by extent, exposing defendant’s To for child molestation. that penchant prosecutor’s theory “intent” was but a the iden- euphemism proving tity Robin’s killer defendant’s to com- by establishing general disposition course, mit similar crimes. Of effort to use crimes for that any prior purpose is expressly forbidden Evidence Code supra, section 1101. (Thompson, 320-321; at pp. see also People v. Guerrero 548 P.2d Cal.Rptr. reasons,
For similar
the evidence
in on
could not be bootstrapped
the theory that it showed defendant’s
or scheme.” Mere use of those
“plan
words adds
to a case for the
nothing
admission of
offenses. The
prior
prof
fered evidence must still be
to determine whether it
some
analyzed
proves
material,
thing
bare
disputed,
beyond
(Thompson, supra,
disposition.
There was no contention in this nor there could Robin’s and murder were kidnap of a or part single conception, plot conspiracy, 1968, 1977, which the 1979 incidents were also com- February integral (See, ponents. v. Covert 85-86 e.g., People Cal.App.2d 220].) Rather, here synonymously or scheme” was used “plan Indeed, with the theories of discussed. both admissibility already pros- ecutor’s argument and the modified instruction “char- employed phrase method, acteristic with interchangeable scheme” as it was plan, though hand, modus on the operandi one and with defendant’s intent in approaching Robin on the other. of the no different rules to use Accordingly, prior- apply crimes evidence than those we have outlined.18 previously *28 we that the crimes were ad
Finally, reject any implication prior missible to in establish a motive for murder. Common sense premeditated dicates that one who commits to avoid its a another wishes felony upon Here, detection. That lead him of victim. may to the calculated murder his could killed Robin in cold jury consider that defendant possibility 18A separate developed prior may rule had in be admitted to sex cases that sex offenses plan, bearing show design,” “common scheme or without further examination of their on intent, issue, identity, any disputed they other if are “are not too remote and similar the offense charged persons prosecuting and are committed with to the witness similar (See 457, 215, People (1978) v. Thomas . . . .” 573 Cal.Rptr. 20 Cal.3d 465 P.2d [143 433]; 232, 243.) People Kelley, supra, Thomas-Kelley v. 66 Cal.2d Whatever relevance the charged, People case, (1984) v. Tassell rule has in this where no sex offense is 36 Cal.3d 567, 87-89, 8.) effectively 77 overruled Cal.Rptr. (Pp. 679 P.2d has it. & fn. [201 1]
635 discussion, (See blood to her prevent from him as her naming kidnaper. ante.)
However, the in defendant’s crimes prosecutor argued prior effect that witness, increased his incentive to since they eliminate Robin as a might result in more severe We cannot for the current offense. punishment accept the notion that evidence on If it of offenses is admissible this basis. past were, him one’s criminal he could be introduced when past always against was accused of in premeditated murder the course of a offense. subsequent The accused’s mere as status an would him under an place ex-criminal evidentiary not effect disability shared first offenders. The of by prejudicial the prior-crimes revelations would their vastly outweigh specu- slight lative It probative value. is such which the restrictions evi- just dangers dence of past seek offenses to avoid.
People den., v. Durham 70 (1969) (cert. 171 395 Cal.2d U.S. 968 [74 262, 198], 449 Cal.Rptr. cert. sub Robinson v. den. nom. California (1972) 406 671, U.S. 971 2416]) L.Ed.2d 92 not S.Ct. is contrary. [32 There, defendants shot and killed a police during officer routine automo bile This stop. court held that could hear evidence jury outstanding uncharged offenses for which defendants feared 186- (Pp. apprehension. 189; 88, see also People (1960) v. Robillard 55 100 Cal.2d Cal.Rptr. [10 167, 295, 358 P.2d 1086], (1961) 886 A.L.R.2d cert. den. 365 U.S. 199, L.Ed.2d 1043], S.Ct. overruled on other v. Morse grounds, People Cal.2d 648-649 388 P.2d Robillard, A.L.R.3d In cases like Durham the motive of escape central, Here, it can be shown in no other the issue of witness way. event; elimination was before the that defendant was jury any speculation also worried about record is remote and cumu implications past lative. Under these circumstances the trial court erred in evidence admitting of prior crimes.19
We cannot say the error was other harmless. The evidence that defendant kidnaped and killed Robin was but not overwhelm fairly strong, and it was ing, largely circumstantial. Besides defendant’s approach Robin, and his at the crime Dana placement scene Crappa, People’s case centered on his “admissions” to informants whose cred- jailhouse argues 19Defendant prior also sex there crimes are never admissible unless is evidence Guerrero, (See supra, sexual misconduct in the current case. *29 727-728.) because, He claims the challenged only pretrial trial court allowed the in evidence proceedings prosecutor produce under section the misled the court to believe he would evidence that sexually Robin been the prior Samsoe had molested. Our conclusion that incidents were any they pattern inadmissible in of simi event because exhibited no distinct larity bearing intent, identity, on unnecessary explore plan, or motive makes it this related contention. Seattle, (2) hotly travelling was his behavior” in ibility disputed, “guilty locker, in the locker (3) where he rented filled a and storage possession worn, the Kane Kut (4) of the have and of earrings discovery victim might based in knife near a alibi body. plausible part Robin’s Defendant presented in his home crucial calls he made received telephone allegedly times; a vigorous bills calls He mounted confirmed the were made. also material incon- to the of and challenge credibility pointed up Dana Crappa in from the Kane Kut sistencies her There was no knife testimony. missing in his set residence. circumstances, by been influenced
Under these well have jury may crimes, which highly prejudicial consideration of other were improper nature, who abducted and in their that was the deciding person defendant that, absent instruc killed Robin. It thus reasonably probable appears error, have been reached. tional defendant would result more favorable to 243], cert. v. Watson 836-837 (People Cal.2d we Accordingly, den. 78 S.Ct. U.S. L.Ed.2d the related finding set aside the convictions of murder and kidnaping, as a circumstance. kidnaping special Other Issues selection, jury Defendant numerous claims of error at the raises other above, we need of his In of our light analysis trial. guilt, penalty phases not reach them.
In his contends related for habeas defendant petition corpus, witnesses, Herrera, testimony two Robert Dove and Michael gave perjured our reversal by him at is Any dispelled his trial. against resulting prejudice on other therefore moot.20 grounds, and is petition is denied as reversed. for habeas judgment corpus The petition moot. J., J.,
Bird, Kaus, J., Broussard, J., concurred. Reynoso, C. MOSK, J. dissent. I that the admission conclude, colleagues,
I cannot with the assurance of my erroneous, or that offenses defendant evidence committed prior trial. If the under oath after perjury 20The claim of is based on Dove’s recantation retrial, as he did witness testifies any prosecution recalls either accused witness on trial, intervening recantation. may with the at the first seek to him impeach *30 its admission under requires reversal v. Watson Cal.2d 818, 836 P.2d There were in the sufficient similarities prior 243]. offenses, children, all introduction on against female their permit issue identity.
That the little in a prior offenses did not result is not against girls killing sufficient justification to find and to conclude that the trial court dissimilarity exercised improperly its discretion in the evidence. admitting (People McCarty Cal.App.2d
I would affirm the on the conviction that there has been no ground mis- carriage (Cal. Const., justice. VI, art. 13.) §
Respondent’s Mosk, petition for a rehearing was denied October 1984. J., Lucas, J., were of the that the should be opinion granted. petition