*1 Apr. Crim. No. 24475. S004666. 1990.] [No. PEOPLE, Respondent, Plaintiff and
THE DOUGLAS, Defendant and Appellant. FRED BERRE *16 Counsel Schwartz, Court,
Amitai under appointment by the Supreme for Defendant and Appellant. General,
John K. Van Attorney de Kamp, Steve White and Richard D. General, Iglehart, Chief Assistant Attorneys Harley D. Mayfield, Assistant General, Attorney D. Michael Robert M. Foster and Pat Wellington, *17 General, Attorneys Zaharopoulos, Deputy for Plaintiff and Respondent. Opinion
LUCAS, C. J.Defendant Fred Berre from a Douglas appeals judgment death imposing following his conviction of two counts of first degree mur- Code, der (Pen. et all further seq.; statutory references are to this code § unless otherwise indicated), by the circumstance accompanied special 190.2, of finding multiple (§ murder subd. (a)(3)) connection with the 1982 killings 19-year-old Beth 16-year-old Jones and Margaret Kreuger. We affirm judgment entirety. in its
I. Facts Procedure A. Guilt Phase Evidence
The case defendant against substantially was based on the testimony of Hernandez, his accomplice, Richard who was granted immunity from pros- witness, ecution in for his exchange testimony. Another Kathy also Phillips, testified for the to a prosecution pursuant immunity. Hernan- promise dez’s statements Phillips’s substantially were corroborated physical evidence and other witnesses.
1. Phillips’s Testimony addict, a Phillips, money heroin wanted buy to Her drugs. friend, Hernandez, Richard worked next to door defendant’s furniture refinishing shop Santa Ana. Hernandez often supplied Phillips with defendant, drugs. He introduced who told her he Phillips would her pay if she posed for nude photographs while bondage. Phillips agreed to pose for defendant and shortly thereafter defendant took her to his shop, where he tied her hands and ankles and her gagged mouth. According Phillips, defendant showed her photographs of several other women to indicate how he wanted her to He also pose. instructed her to “look but scared” did not $40 harm her during photo session. Defendant paid Phillips after he had taken of her pictures with Polaroid camera for about an hour. Phillips Hernandez, eventually left the shop with who then her. purchased drugs for incident, Two weeks after the above defendant asked if she would Phillips assist him in killing young women the desert while sex films that making Defendant believed that and homosexual scenes. bondage, included sadism the victims to make it easier for filming would presence during Phillips’s According Phillips, easier to commit. trust him—thus his crime making be the bodies so that no evidence would bury defendant told her he would money (around $35,000) discovered and that he would make lot Vegas.” the films to in Las selling “people to the going testified that her habit her from
Phillips although drug kept She she told defendant she did not want to in the crimes. participate police, *18 she furniture even after shop also stated continued to defendant’s frequent his because she on Hernandez to her with proposition dependent supply drugs.
About a month after to enlist as an accom- defendant attempted Phillips scheme, in his film plice sex-and-murder went to defendant’s Phillips shop defendant, in order to meet Hernandez. She instead encountered who asked her going “what she was to do” about his earlier On another proposition. occasion, said Phillips defendant called her to tell her he “had a woman with him” “carry and wanted to out his told defendant she plan.” Phillips did not want to be of his scheme. Her with part contact defendant ended when she was convicted of burglary county and sentenced to for one jail year.
2. Hernandez’s Testimony Hernandez began working for defendant at his furniture refinishing shop food, beer, He 1981. was paid and occasional lodging spending money. He lived in defendant’s boat that was behind the Hernandez parked shop. drank beer throughout day. each After Hernandez had been working for months, defendant for almost eight defendant asked him to have a coworker drive arrived, Hernandez to his house Costa Mesa. When Hernandez he saw an unconscious naked woman on a sofa bed in the lying room. living Defendant told Hernandez he had drugged the woman. He Her- instructed nandez to take off his clothes so he could take of Hernandez pictures with the woman. Hernandez removed his clothing, and with posed the woman. Defendant told Hernandez to insert a baton inside the woman’s vagina, but Instead, it would not fit. Hernandez butter on the put object and inserted it inside her rectum. Defendant then told Hernandez to his place penis woman’s mouth so that defendant could take a When the woman picture. later, awoke days three defendant and let Hernandez her go. day
On the of the murders the two victims met defendant and Hernandez in a drove, car, 7-Eleven parking lot. The foursome in defendant’s to the drive, beer,
desert south of Indio.1 During Hernandez drank and he and desert, Kreuger marijuana. they smoked When arrived at the Kreuger marijuana, Hernandez smoked more and Hernandez followed defendant’s instructions to lay sheet on the rum and ground prepare Cokes for four of them. hour,
After the foursome relaxed for an defendant instructed the victims to remove their asked if clothing. Kreuger defendant she could see the $100 money, and defendant showed her a bill. Defendant then Her- gave testified, nandez a rope (which, Hernandez “awas bit thicker than Venetian cord”) blind and told him to tie the victims. Hernandez tied their feet up at the ankles and then tied their hands behind their backs. When Kreuger camera, asked defendant where he he kept and Hernandez walked to the car, where defendant retrieved a rifle from the trunk. Hernandez testified victims, that he became scared when he saw the On gun. returning to the defendant in the put clip rifle and told them “[hjere’s the camera.” He then told the victims to “make love to each other.” *19 minutes,
Hernandez testified that for the next 10 to 15 defendant paced forth, victim, back and shouting instructions first to one and then to the other. He (Hernandez ordered one victim could not remember whether it feet, was Jones or Kreuger) to kiss the other’s and then stated he wanted “some tongue drink, on her crotch.” When the victims requested a Hernan- dez them gave each a of soda. sip Hernandez recalled that he continued to drink alcohol during the time defendant was shouting instructions to the victims, because he was “afraid of defendant.” drink,
Hernandez testified that after he gave the women a defendant cut on the Kreuger neck with a razor blade and sucked on the wound for open cut, about 10 minutes. When defendant stopped sucking he retrieved a beer from the cooler and told Hernandez that the women “just couldn’t go back.”
Thereafter, defendant told the victims to suck on his penis, they while remained in a The kneeling position. victims next to began orally copulate erection, Hernandez. When he was unable to sustain an he told defendant bush, that he had to urinate. As he to defecate squatted behind a Hernandez heard one of the yell victims “Leave her alone!” Hernandez stated that as he victims, walked back toward the he saw defendant Jones. He choking also dead, noticed that was Kreuger blood from her spurting mouth. Hernandez Jones, claimed he attempted to knock defendant off of but that defendant murders, Several months before the place defendant told Hernandez he wanted to find a pictures girls. the desert to take of naked Hernandez testified that the two men drove to the Indio, eventually desert satisfactory near and spot found a between two hills. Hernandez, he was too “messed to According him down instead. knocked beer, choking After to defendant. stop and using drugs drinking after up,” rifle, her. his Jones, killing butt of hit her with the wooden defendant him, he and bothering the heat was then told Hernandez that Defendant covered the victims with Hernandez to a drink at a bar town. get wanted a bar two men went to behind a bush before the and hid their bodies a sheet they drinks each. When they several Borrego where consumed Springs, desert, to to untie the ropes to defendant told Hernandez returned be anything else that could (along all from the victims with jewelry remove be Defendant told Hernandez the items would identify them). used to to County. He also told Hernandez away Orange on the back to trip thrown left the for an hour bury bodies. Defendant then scene grave a and to dig returned his instructions. When defendant to while Hernandez followed sheets, desert, they to where Borrego Springs placed two men drove behind market. The men clothing dumpster the victims’ ropes then drove back to defendant’s shop. to return to the murder day,
The next defendant instructed Hernandez find neck. Hernandez Kreuger’s site to the razor blade that he used cut told, he did as but failed to find blade.
When it shop, Hernandez returned he found locked. Defendant told him that someone had called the and asked for “Jack” and that shop had in.” persons unknown tried “break Defendant instructed Hernandez returned, *20 that if the he to call Garden Grove at a “burglars” police was him, certain number. then a rifle and told gave Defendant Hernandez comes, Hernandez, “Anybody According shoot at them.” defendant told him to a “glue on table” inside sleep shop.
After defendant left the a woman called and asked for “Jack.” shop, he evening, by Later Hernandez called the after was awakened police Hernandez, on roof. at one According noise least officerbelieved that those to break into over a attempting shop angry “drug defendant’s were burn.” day,
The and at the questioned next Hernandez defendant were Garden and Grove Police about the Jones. Department disappearances Kreuger days an Hernandez recited alibi that defendant had concocted a few before murders, of murders telling day the authorities that the two day men in Oceanside then traveled to Corona to spent fishing and brother, they That evening, search for Hernandez’s whom never found. north, later Victo- days defendant and Hernandez drove several arriving Canada, ria, at Furniture they employment Strong’s where both obtained later, six weeks defendant told he
Refinishing Shop. Approximately Strong Instead, leaving was for Seattle to seek medical attention for in his gout leg. Reno, Nevada, they defendant and Hernandez drove to bought where a car in order to days trade its license with those on defendant’s car. Two plates later, they drove to the murder site grave. to check the
Toward the end of defendant and Hernandez returned to Victoria with a man named “Bob.” Defendant instructed Bob to Hernandez provide left, food and shelter. Defendant then his destination unknown to Hernan- Canada, dez. While in by Hernandez was Canadian detectives questioned victims, about the on several occasions. At one disappearance point, Hernandez declined offers immunity and Canadian in ex- citizenship testimony. for his change
The bodies of were Kreuger Jones discovered in the Anza-Borrego National Park and his photographer during wife the 1983 Easter excavated, teeth, holidays. Once the burial site was collected human police hair, barrettes and bones. Forensic Norman odontologist Sperber examined the skulls found at the site and two weeks later the skeletal remains were matched with the victims’ dental charts X-rays.
Meanwhile, County. Hernandez had returned to Orange After defendant disturbed, and Hernandez discovered that the site had been grave and that arrest, Loreto, warrants had been they issued for their traveled to Mexico. Defendant left Loreto after three spending weeks from the authori- hiding stayed ties. Hernandez in the city for he approximately months before authorities, custody by taken into Mexican who had been told American Anaheim police (Johnson detectives and Martinez of the Police Department) that Hernandez was wanted in the United States. Apparently, below, as discussed further he before to the American officers Her- spoke nandez had confessed murders to the Mexican after they authorities Johnson, beat him. Hernandez was then turned over to Detective did who not question Hernandez the murders regarding on the return to the trip United States. *21 Nevada,
Defendant was eventually arrested North Las Vegas, Feb- arrest, ruary Shortly 1984. after his he signed waiver of extradition and was returned to California. Both defendant and charged Hernandez were with murder and (§ 187) to commit conspiracy prostitution (§ subd. (b))-
3. Other Testimony Dana Lee testified for the immunity under a while prosecution grant he was incarcerated on a parole violation out of his conviction for arising before a month had met defendant heroin. Lee and burglary possession murders, defendant days before that several He stated the murders. nude for photographs. who would pose women him if he knew asked $100 $50 introduction. for an him that he would pay told Lee Defendant offer, defend- Kreuger Lee introduced initially defendant’s refusing After to her roommate Lee, defendant then introduced Kreuger According ant. Defendant then defendant. they would for pose women said Jones. Both session where the photo him to the desert Hernandez to accompany asked “meet some defendant to to with agreed go to take Hernandez place. was Hernandez met day, defendant and that later the same Lee recalled girls.” and drove in Garden Grove lot and Jones in a 7-Eleven Kreuger parking a restaurant for pizza. them to roommate, Alimón, that after the victims recalled
Terry the victims’ Hernandez, they told with defendant and initially meeting returned from $500 for nude they “making quick posing Alimón that planned Alimón, if and Kreuger Jones stated that she According to photographs.” Alimón day, “something wrong.” were not back noon the next was did not return called Jones’s mother after she became worried when Jones day. home the next Stevens, apartment “Dave” who had been in the victims’
George staying that he since one month before their testified approximately disappearance, day at 1:30 a.m. on the saw the victims leave their apartment approximately of the murders. testified that he had worked in defendant’s Mondragon
Leoncio Garcia that the days” night for “a few before the murders. Garcia recalled shop hours, murders, but early evening before the defendant left his shop Hernandez, a.m.) sleeping returned and woke who (at approximately saw backyard. employee defendant’s boat in the Garcia and another leave the front door of the business and through defendant Hernandez they Hernandez until enter defendant’s car. Garcia followed defendant and the next nearby at a station. Garcia returned to the stopped gas shop neither defend- stayed there until 3:30 He testified that morning, p.m. ant nor Hernandez to the while he was there. shop returned B. Defense Akers, had known Henry
Defendant an alibi defense. who presented near de- years, refinishing shop defendant for about 10 owned a furniture *22 murders, fendant’s Akers testified that on the morning establishment. 6:30, Hernandez he to defendant between and the same time spoke the murder to the desert with driving that he and defendant were testified victims. Hemmer, told him boyfriend, Kreuger testified that Kreuger’s
Donald to According murders that she was to visit friends. day going before the Hemmer, Lee about a man victims he confronted disappeared, after the that Lee then described or Hemmer stated Douglas “Doug.” named hair, beard, thirties, early a about late forties.” as “dark “Doug” having Bobie, she thought Karen an stated she Finally, acquaintance Kreuger, after Grove Mall in one month September, saw both victims at the Garden Jones, Bobie she had never met Although the murders were committed. flyer. a missing persons she became familiar with her from picture testified extensively All cross-examined the prosecution. three witnesses were Penalty C. Phase Evidence 190.3, (b), section factor of three
The introduced evidence under People activity. A different woman testified as to each incidents of criminal prior below, and in detail witnesses McGettrick greater incident. As explained incidents in when defendant forced separate Pendleton testified about sex acts or them into for nude or frightened posing photographs performing woman, Williams, testified that in 1977 with him the desert. The third make movies involving defendant her sought participation plan Defendant was with killing girls charged attempt- torture and or women. and, after the ed murder and other crimes out of this arising plan deadlocked, to solicitation to commit eventually he nolo contendere pleaded testimony by 653f. various felony under section Defendant presented character, his his nonviolent regarding good relatives and acquaintances rebuttal, nature and his as an and an abused child. background orphan wife of 33 had years (who introduced evidence that defendant’s the murders on his had lost contact with defendant before behalf) testified committed, custody. had not seen him until he was again were and
II. Guilt Phase Issues A. Lack Territorial Jurisdiction court, defendant moved hearing again superior
At the and preliminary As stated County jurisdiction. to dismiss on the lacked ground Orange above, initially were with charged conspiracy defendant and Hernandez to commit (§ 182), (§ 187) conspiracy prostitu- commit murder murder was based on (§ (b)). conspiracy charge tion subd. The prostitution Kreuger that the men in sex with planned engage evidence two had *23 493 for exchange in immunity granted When Hernandez was money. for Jones and defend both Hernandez against testimony, conspiracy charges his the conspiracy the contends that once ant dismissed. Defendant were Courts County Municipal Superior Orange the dropped, were charges to no evidence his case because there was jurisdiction territorial over lacked from County aside and Jones to Kreuger Orange the murders of connect made defendant arrangements” between preliminary “inconsequential arrangements, Such minor killings. preliminary to the prior Hernandez County. Orange on jurisdiction are insufficient to confer argues, defendant 817, 137].) P.2d 32 429 (1967) Cal.Rptr. v. Powell 67 Cal.2d (See People [59 asserts, only Instead, were dismissed charges after the conspiracy defendant County—where jurisdiction. crimes were committed—had San the Diego that, need not rise although arrangements Defendant observes preliminary offense, nonetheless, under section to the level of an element of the the offense” must be to the consummation of arrangements “requisite such in jurisdiction for lie. order to concluded, motion, “there is
In on defendant’s the court ruling municipal matter, try relying in the jurisdiction County Orange territorial of this theory the that which to the commission preliminary arrangements, led offense, the in in County; being were held Orange principle upheld which, [(1976)] 245], v. Tabucchi People Cal.App.3d turn, in court similar- relies on section 781 of the Penal Code.” The superior case, ly lacked over his rejected argument jurisdiction defendant’s that it the of the notwithstanding conspiracy charges. dismissal noted, courts jurisdictional ques- As both lower section 781 resolves the tion. That section states: is in in one “When a offense committed public part another, jurisdictional territory and in or the or effects thereof acts part constituting or to the consummation of occur in two or requisite offense territories, jurisdictional more is in jurisdiction such offense Powell, court within jurisdictional territory.” either competent county, officers and one kidnapping police began two one of the was killed in held that officers another. We under section county in for made was preliminary arrangements which the crime were county to even acts proper prosecute though offense the preparatory 62; did not constitute an essential element of the crime. Cal.2d at see (67 p. Abbott P.2d People he did not ground Defendant seeks to Powell on the distinguish victims; County to murder or engage planning kidnap Orange rather, claims, voluntarily Diego he him to San accompanied women observe, however, County. leading As the several acts preliminary in Orange County. example, consummation crimes occurred For *24 County; in for the desert Orange arrangements defendant met his victims murders, there; morning made and on the of the session were photography defendant, for county leaving met in that before Hernandez and the victims of the acts sufficient to County. totality the desert in San We find the Diego (Powell, 67 at County. p. on Cal.2d jurisdiction Orange supra, confer Moreover, that the conspiracy charge we with defendant once disagree Powell, dismissed, the County jurisdiction try lost to case. Orange Abbott, rejected distinguish supra, we the defendant’s to attempt 362, in Abbott the defendant was with ground charged on the in Powell there was no kidnapping both murder and whereas kidnapping, jurisdiction In so we stated: “We are satisfied that territorial charge. doing, than in criminal cases should the acts committed rather depend upon upon . accusatory the the . . The section was intended to pleading. form of limits fixed the common jurisdiction beyond rigid broaden criminal . . . jurisdiction. law in cases of crimes committed in more than one Since murder, may 790 is not exclusive in cases of section 781 be properly section in Los although here. It follows that of applied kidnapping [the officers] have an element the murder Angeles may not constituted essential of offense, County there in sufficient acts place Angeles preliminary took Los jurisdiction county the murder to to attach in that under section allow 781.” Cal.2d at (67 pp. 62-63.) court,
Like the Powell we find the made preliminary arrangements County defendant in were sufficient to confer Orange jurisdiction territorial County necessary on the courts. The first execution of Orange toward steps find no Orange County. Accordingly, the ultimate crimes occurred we crimes rulings allowing charged error the court’s prosecution in Orange County.
B. Venue Improper
Defendant contends the trial court erred in his denying pretrial motion for a of venue on the that he could not receive a fair change ground trial in Orange County publici because of the combined effect on the ty trial and his 1977 arrest and trial for surrounding present subsequent murder. he attempted argues Defendant was successful although a arrest and trial excluding (pursuant pretrial limine) prior motion trial, from the tactical decision to do so under guilt present his phase Evidence it (b), impossible Code sections subdivision made for him to dire the effect of the pretrial publicity conduct voir jurors exactly without that created exposing prejudicial publicity the potential for bias. if can show must a defendant granted
A of venue motion be change relief, not likelihood he will receive there is a reasonable that absent such 1112, 1125 48 Cal.3d (1989) trial. v. Williams (People fair and impartial v. Harris 146]; People 774 P.2d Cal.Rptr. raised on for writ petition Whether conviction, “the reviewing judgment or on from appeal of mandate *25 de and determine novo examine the record independently court must 48 Cal.3d at p. a or (Williams, supra, fair trial is was obtainable.” whether 207, 231 763 P.2d 1125; Adcox (1988) Cal.Rptr. People gravity the and of The factors to be considered on review are nature 906].) offense, the size of the coverage, the the nature and extent of the media community, of and the of community prominence the status the defendant 1125; v. Salas 7 supra, victim. 48 Cal.3d at (Williams; p. the 818 58 A.L.R.3d Williams, however, in differs from writ As we observed review appeal in is 3d at (48 p. 1125.) review that after trial the review Cal. retrospective. words, “any in is unneces change other favor of venue presumption analyzed voir dire the sary, may light for the matter then be in of the of actual, (Id. the at jury pool jury panel pp. available and actual selected.” whether, of 1125-1126.) light change The then is in the failure question venue, reasonably it a fair trial not had. 47 likely (Adcox, supra, is was Cal.3d at p.
Our review of record trial denial the reveals the court’s of the venue motion was The record the determined that the proper. shows court status of the defendant victims’ in community and the the were prominence neutral factors. murder victims were with Although the their popular families, they friends in there is no indication that were “prominent” Harris, Next, County. 28 Orange (See supra, although Cal.3d at the p. 949.) gravity court observed that the nature and of the offense was a “major stated, factor” in the determining (at venue one court “this is proper point with, regular dealing not the run of the mill that we are type homicide case, was nor the Hillside nor the Manson nor the Strangler, attempt shoot court Reagan”), community President also believed that the context, County, size of defendant could receive a fair trial. In this Orange million, 2 Orange County’s it noted that was population approximately it the 10 making largest one of counties in the United States. (Compare Williams, 48 1126 Cal.3d at on venue p. grounds when [reversed trial “relatively county”; sensational murder held small defendant was Black and the White from a family].) victim was prominent received,
As to the were publicity “high- court observed there arrest, ly inflammatory” articles written about defendant’s newspaper murders. When de- only 9 articles regarding whereas there were effect of the that he was concerned with combined argued fense counsel stated that in of the jury, light passage on the court present articles trials, county large enough between the first and second time their own and decide prejudices could be found who could set aside jurors the evidence presented. the case on dire, voir the court
Initially, conducting spoke panelists had heard anyone about whether and asked groups general questions a bell” with “rang prospective of defendant or whether his name Later, heard of defendant or his trial. jurors. juror having prior No recalled examination, after she juror individual one was excused for cause during at a the case people discussing revealed to the court that she overheard dinner she had attended. party *26 addition, jurors the remem- indicating defendant no evidence presents on, all, trial.2 at let alone relied evidence 1977 improperly
bered Moreover, jurors record reveals none of the selected remembered the that defendant, knew about his criminal back- to none anything damaging prior or innocence. guilt and none had formed an his ground, opinion concerning 2 Camarillo, challenge the peremptory After defense counsel exercised a to excuse Juror present. following prosecutor requested an in chambers discussion with defendant The collo quy occurred: just I think “Mr. Rackacaus I wanted to raise this idea for the record because [Prosecutor]: thinking possibly—it’s something I’ve been about. I think it’s dramatized with the—Miss it’s raising figured that was a case that she had Camarillo the idea that she—once she out this about, developed a mind felt that she heard of and she knew she became—she frame of she before, case, [j|] thought prejudiced. be I’ve about this a little bit couldn’t sit on the she would strategical purposes and I assume that for the defense did not want to discuss with any probably might appeared newspapers, have in the didn’t want to of the old articles that possibility jurors finding has been tried back raise the or the fact of the out that defendant I,—that’s strategical that the de- past, in the and back in so I assume that’s a decision made, my may jurors sitting is that when we have—we have some fense But concern [fl] they they’re publicity put together, going it remember that there was back in ’78 when to case, that, murder, you Douglas, pretty snuff know—snuff Fred and about a murder and develop soon a similar frame of mind as Miss Camarillo did. thought, given “Mr. I this and Mr. Rackacaus Peters have considerable Counsel]: [Defense mean, [, (b) right. [jj] brought mo- is tion, . . . I we an Code 1101 section] subdivision] [Evidence it, obviously try ... I the case on and we were successful on so I have avoided. want to prosecutor relitigate have case. I the facts that the has in this case and not to [][] consciously you anything mentioning question, ‘Have heard about a snuff mur- avoided conscientiously might something happened people relate back to der’ because it could— years ago they Douglas prior problem, Seems which made the connection Mr. had some [fl] three, maybe ought only thing going have two to me the we can do is we can—is we’re to or alternates, four, maybe juror point in and some at some to select more than two or three this,’ ‘Oh, God, says, my something it a—because trial I remember about then deal with prospective problem.” it’s a prob- agreed approach “prospective The court with counsel that it would be best to juror lem” with a on a “one-to-one basis.” facts, likely defend- reasonably not find it is we that under Accordingly, 1132; Cal.3d at see p. (Williams, supra, a fair trial. ant denied was Balderas Testimony Admissibility C. Hernandez's
1. Facts Loreto, Mexican was arrested police In March Hernandez in- Department of the Anaheim Police Mexico. Detective Johnson thereafter, and United States shortly the arrest and he other formed of States. to the United traveled to Mexico to return Hernandez police officers Mexico, States informed the local police On arrival in the United officers Jones, the affidavit the arrest Kreuger showed them for murders warrant, The officers with some Mexican provided them photographs. Hernan- they informed the United States officers that intended question dez,3 recorder, and asked to the Americans tape provided. borrow which they contact- The United States authorities were then advised that would be ed when was concluded. questioning they were proceeded question
Mexican officials Hernandez. When in their claims resorted to inquiries, they unsuccessful initial Hernandez violence, him a minute Hernandez physical beating.4 15-20 subjecting *27 The interrogation, still did not talk. Mexican but informed police ceased that he even As evening. Hernandez could treatment that expect worse the officers returned later Hernandez had earlier promised, evening. that noticed that one of had carried an The officers weapon. them automatic they informed Hernandez were “take him the beach.” that to out to going life, At this a full His point, fearing gave for his Hernandez confession. statement was and after told it would not be typed signed given he was officials, United States but instead be in the Mexican simply placed would files. police authori-
Mexican thereafter released Hernandez to United States police ties, them States gave and of Hernandez’s statement. The United copy border, ar- officially officers escorted across the where he Hernandez was rested, he was then taken to in Anaheim for Before arraignment. court Hernandez interviewed Detective arraigned, was at the station police Attorney give Johnson and District Rackacaus. Rackacaus did not Deputy v. Arizona 384 U.S. Hernandez Miranda warnings required Hernandez, nor, request interrogate American officers that The did not Mexican officials they apparently, interrogation. were invited to attend the Mexican sides, face, pulled Hernandez testified hit in the hair was that he was stomach his and that a rib was fractured. rather, 974]; he informed 10 A.L.R.3d 86 S.Ct. L.Ed.2d could and that it “off the record” was to be Hernandez that their discussion he him the charges informing him at trial. Before be used against
not therefor, he Hernandez that Rackacaus told faced and the possible penalties Hernandez’s he wanted to know Rackacaus stated in “serious trouble.” Hernandez defendant. against as a witness see if he could be used story to Hernandez if he wanted then asked story. tell his Rackacaus agreed not. stated he did and Hernandez taped, interview interview, Mexican the alleged Rackacaus never mentioned During had confession, United States authorities Hernandez that nor did he inform the American Although suspected it. Hernandez any knowledge of statement, if his he did not know the Mexican may given have been police were borne out. suspicions interview, but indicated leniency before the
Rackacaus made no offer him be against might the charges that if Hernandez cooperated, afterward interview, arrived at the police counsel for Hernandez reduced. During fact, he and Hernandez indicated Hernandez of this station. Rackacaus told Hernandez’s with counsel. his statement before giving speaking would finish Mexican he had to the closely given to the one statement conformed Rackacaus were that his statements to He testified subsequently officials. voluntarily. freely made interview, between the negotiations pros- following
A few weeks after the counsel, immunity in was granted Hernandez’s Hernandez ecution and extraordi- sought defendant.5 Defendant testimony against for his exchange to vacate the order in an effort nary Appeal writ relief the Court rejected relief and we immunity. summarily The court denied granting hearing pursuant The trial court next held a for review. petition defendant’s Hernandez’s statment 402 on the voluntariness of to Evidence Code section Rackacaus, to a moral a reasonable doubt and “beyond and concluded *28 here in voluntary indeed by Hernandez were certainty that statements that it had excluded stated for the record the U.S.” The court subsequently involuntary. as the Mexican confession
2. Contentions Defendant’s as a testimony “was inadmissible Hernandez’s trial
Defendant asserts and and coercive by police it obtained improper matter of law because was conduct,” in permitting therefore erred and that the trial court prosecution 5 testify conformity in grant, required to placed and he was not No conditions were however, was, prosecuted be for that he could representations. He informed with his earlier untruthfully. perjury if he testified
499 tactics employed the coercive (i) He argues into evidence. its admission at- are initial confession in Hernandez’s extracting Mexican by police authorities, initial from the (ii) the “taint” States tributable to United aggravated was in fact (and never “purged” coerced confession was testimony (iii) misconduct), subsequent police prosecutorial on these “coercion” sufficient itself a form of immunity under grant below, we As we explain of the trial statements. facts to mandate exclusion each contention. reject
3. Law Review Governing matter, The this issue. governs we address what law As a preliminary 1982. Before the offenses August murders of and Jones occurred Kreuger committed, however, state the initiative adopted the voters of this were 3 8. Section of the initiative designated measure on the ballot as Proposition 28, That subdivision to article I of our state Constitution. (d), added section section, declares that labeled the to Truth-in-Evidence” “Right provision, criminal proceeding.” “relevant evidence shall not be excluded 692, 667 P.2d (1983) v. Smith 34 Cal.3d 258 People Cal.Rptr. [193 after 149], we held that to offenses committed on or Proposition applied its effective date of June 1982. 63, 65,
Recently, in v. Markham (1989) 49 People 273, 775 determined that the “Truth-in-Evidence” Cal.Rptr. 1042], P.2d we v. Jiminez abrogated the rule provision Proposition adopted 672], a imposing stricter standard of on the voluntariness of confessions than that used proof Thus, by the federal courts. we determined that the voluntariness of confes sions or admissions must be shown of the evidence. preponderance mind, (Markham, 49 Cal. 3d at With this standard we p. review defendant’s substantive arguments.
4. Proving Burden Involuntariness
Defendant correctly observes that the federal and California courts
consistently
have
the “admission at trial of
recognized
improperly
obtained
in a
unfair trial
fundamentally
statements which results
violates
fair
v. Ford
right
(Wilcox
(11th
defendant’s Fifth Amendment
to a
trial.”
1140, 1148;
Cir.
1987)
(7th
Cir.
F.2d
see also United States Chiavola
1271, 1273-1274;
Cunningham
744 F.2d
United States ex rel.
v. DeR
1984)
*29
892, 895-896;
v.
(7th
obertis
Cir.
719 F.2d
United States
Fredericks
1983)
470, 480;
(5th
1978)
Bohlinger (1st
1974)
Cir.
586 F.2d
LaFrance v.
Cir.
499
29,
92,
34-35;
41
102-104
(1985)
F.2d
v. Leach
People
[221
826, 710 P.2d
v. Varnum
500
108, in which a defendant But unlike those situations v. Twomey (1972) involuntary (see Lego his own statements prior challenges 627, must S.Ct. government L.Ed.2d 92 U.S. 619] [the of evi by confession preponderance voluntariness of defendant’s prove Markham, seeks [same]), when a defendant dence]; supra, codefendant, testimony a witness or involuntary allegedly to exclude that the admitted statements bears the burden of proving the defendant 102-104). 41 Cal.3d at involuntarily (Leach, pp. obtained supra, were Leach, tradi courts have heightened protections As observed in we are designed in the self-incrimination context tionally afforded defendants him, will not be used against that an accused’s coerced confessions to assure involuntary from his own guilt emanating and to evidence of protect against is no such need for (41 103.) prophylactic statements. Cal.3d at p. “[T]here even the at our fear of the innocent—or assuaging convicting rules directed obtained in violation of due when process, means of evidence guilty—by case, we see no reason victim of the violation is not the defendant. such that a is ordinary ‘claiming person for from the rule that a departing party (Evid. . . . burden of on that issue.’ wrongdoing proof has the guilty Code, 520).” (Id. 104.) at p. § he Although
Defendant fails to meet his burden here. emphasizes informal assertedly Mexican confession and the subsequent coerced Rackacaus, between Hernandez and this emphasis misperceives interview testimony. nature of the exclusion for coerced third recognized party the limited on 41 Cal.3d at Because the exclusion is based (L each, p. unreliable, testimony inherently is and that its admis the idea that coerced trial, fair this exclusion sion therefore violates a defendant’s to a right necessarily only actually whether the evidence admitted was focuses Here, Mexican by none of the statements made Hernandez to the coerced. Accordingly, pre introduced at defendant’s trial. defendant can was police testimony only vail claim if he can show that the trial on his suppression involuntary given. (Ibid.) Hernandez was at the time it was given 5. Amendment Claim Fifth alleged before us involves an though
We reiterate that even issue confession, right against forced it does not involve a violation of defendant’s discov- People’s self-incrimination under the Fifth Amendment. Neither witness, testimony Hernandez’s trial ery of Hernandez as a nor potential (Cf. United incriminatory from statements made defendant. gained L.Ed.2d 98 S.Ct. States v. Ceccolini U.S. 1054] exclusion of may justify Fourth Amendment rights defendant’s [violation testimony result]; Superior live discovered as a accord People witness
501 113, P.2d 883, 649 892-894 31 Cal.3d (Sosa) (1982) Court [185 Moreover, object perceived to standing lacks to defendant is right That self-incrimination. against Hernandez’s privilege violation of Wilcox by (See, e.g., another. vicariously asserted be may and not personal, Fredericks, Ford, 1148, v. 13; United States fn. 813 F.2d at p. v. supra, 524 F.2d 1975) Cir. (7th v. 480; United States 586 F.2d at p. supra, Shaffner U.S. 165 v. United States 1022; see also Alderman testimony Hernandez’s excluding for 961].) Any basis L.Ed.2d 89 S.Ct. defendant. to right personal in a federal constitutional must be found 71.) at (Markham, supra, p.
6. Discussion one 1972) F.Supp. v. (E.D.Mich. In Johnson Bradford nondefendant, testimony by the exclusion of coerced first cases to consider him to a subjected prolonged and Payne arrested suspect officers police torture, only Payne implicated after ceasing and beatings period in exchange him at trial testify against (apparently agreed defendant testimony was so Payne’s trial torture). holding for the cessation trial, the court to a fair right violate the defendant’s untrustworthy as to He arraignment. appeared before Payne noted that “was tortured physically by the visibly magistrate beaten and was returned arraignment at incriminat- until he confessed and custody of his torturers. He was tortured he incri- only his torture after ed He was cessation of promised petitioner. testimony . . . of a to himself. The minated another addition [trial] himself immedi- means he must surrender witness obtained these when him, does not comport who tortured ately testifying persons after those at process.” (Id. p. with due however, note, does not careful to The court was “[t]his Bradford necessarily all poison coerced torture
mean that incriminations of others 1337; also United States testimony.” at see (354 F.Supp. p. future [trial] Ceccolini, have L.Ed.2d at p. 435 U.S. at supra, p. 278] [“we under circumstances hold that a confession ‘making refused to specifically use, making from disables the confessor preclude perpetually which its Indeed, in the ”].) have been removed.’ usable one after those conditions few, ordered Bradford, any, suppression if have following numerous cases (See coerced. itself shown to be unreliable or testimony trial that was not [recognizing 764 F.2d (5th 1985) United States v. Merkt Cir. also earlier following an testimony reliable trial distinction between suppressing statement, statement only the coerced out-of-court coerced and suppressing DeRobertis, . . . LaFrance contrast to 719 F.2d at itself]; p. [“in was not intro- confession this Bradford, allegedly coerced [in case] in the may have aided at trial. While the confession duced petitioner’s *31 502 ... there crime, relief no basis for this use presents of the
investigation if States v. United added]”]; about the trial nothing improper was [italics itself rule on to required 1022 court not 524 F.2d at Shaffner, p. supra, [trial voluntary because was coerced confession codefendant’s possibly whether and stat- government, behalf of the testified on guilty, pleaded codefendant LaFrance, F.2d 29 [prohi- 499 supra, cf. voluntary]; was ed the confession impeachment purposes statements for use of coerced biting out-of-court statements].) recanting the coerced at trial testified when codefendant case, that Hernan to demonstrate defendant fails In the present any to subjected was not testimony was coerced. Hernandez trial dez’s thus, authorities, unlike the defendant and by United States violence immediately testifying after “surrender himself not forced to Bradford, was at p. (Bradford, supra, F.Supp. him.” who tortured to those persons contrast, immunity, of grant under a general Hernandez testified 1336.)6By his in connection with any of statements made use him against precluding only after Hernandez was reached immunity agreement The testimony. and the between counsel negotiations and after consulted with counsel that only agreement required The prosecution. murders, was of the and knowledge as to his testify truthfully Hernandez his earlier out-of-court testimony his with consistency of not conditioned statements, U.S. ex rel. (Cf. of the defendant. ultimate conviction or on 151, 154 (N.D.Ill. 1981) F.Supp. v. Franzen Blackwell [coercion would taint codefendant’s by codefendant out-of-court confession involving “consistently testify to bargained testimony plea when codefendant trial Moreover, under Hernandez testified confession”].)7 challenged with [his] voluntarily and were not freely made and were oath that his statements His trial he made Mexico. earlier statements that by the compelled and impeachment. cross-examination thorough was to testimony subject testimony may have been obliquely, Hernandez’s argues, Defendant somewhat trial, charged custody he was with con prior to defendant’s because while he was coerced drug paraphernalia. marijuana and smuggle jail possession with of spiracy heroin into and trial, al defendant fails to Although charges until after defendant’s these were not resolved leniency these made in connection with lege any implied promises or of express or threats charges Her Accordingly, link between these collateral charges. we discern no causal testimony present in the case. nandez’s immunity testimony grant is it pursuant to a of suggest rendered Defendant seems to subject punish testify involuntary renders the witness because failure to self “coerced” or is not de We have held that a defendant by contempt. is without merit. ment The contention testimony of a codefen the immunized right fair virtue of admission of nied the to a trial dant, only that he immunity made on condition long grant the codefendant is as the of so charge (People v. arose. testifyfully fairly knowledge out which as to his facts defendant is Because Allen 1252 [232 immunity granted on the impermissible conditions unable to demonstrate that there were Hernandez, immunity agreement itself rendered cannot conclude that the existence we right to a fair trial. testimony fundamental improper and violated defendant’s Hernandez’s Ford, was case, 813 F.2d the defendant Wilcox In a similar until eight discovered body was not victim whose murdering accused witness The primary prosecution committed. after the crime was years man, employ in the Wrentz, company’s had been illiterate who elderly, an *32 testified, immunity, that of grant under years. 30 He apparently for over into a victim’s corpse men load the and several other he defendant helped body. they buried the box, where they spot drove to a secluded after which testimony ground on the exclude Wrentz’s sought Defendant to had been impermissibly statement to police Wrentz’s earlier consistent the rejected of Appeals him. The Eleventh Circuit Court coerced from interro- claim, employed improper “Even that the noting: assuming police implicat- . . . Wrentz’s out-of-court statements to obtain gation techniques crime, . . . is at trial. There in were introduced [they Wilcox the ing not] testimony his trial testify to or that incompetent no that Wrentz was proof however, reliability of . . . Even the assuming, was coerced. [If] . . . the defendant had testimony suspect, Wrentz’s direct was somewhat reliability jury. the The tools in hand to before adequate challenge . . . interrogation, defense had full of the nature of Wrentz’s knowledge to sessions interrogation prior had access to the and tapes transcripts trial, in examining and had a full to use those materials opportunity [him]. Furthermore, in to a full to cross-examine wit- opportunity addition [the evidence to ness], independent Wilcox had to on adequate opportunity put in such evidence. testimony discredit the and did fact challenged put Finally, on reasonable charges the trial court gave appropriate doubt, the value of the credibility, immunity assessing and to aid them factors, all these we conclude that evidence of question. Considering fundamentally any did receive a fair trial in of spite government Wilcox Ford, v. 813 F.2d at (Wilcox misconduct that have occurred.” might p. case,
Similarly, in the defendant does not claim that Hernandez’s present coerced statements were admitted at trial. allegedly improperly out-of-court Wilcox, Rather, Here, testimony. as in only he Hernandez’s trial challenges im- testimony trial to cross-examination and accomplice’s subject tools” with which to chal- and defendant peachment, possessed “adequate all testimony, fully of lenge reliability being apprised Hernandez’s in Mexico. interrogation the circumstances Hernandez’s earlier surrounding Moreover, way subject we are that Hernandez was unpersuaded at the he at defendant’s trial. under Accordingly, coercion time testified case, Hernandez’s say circumstances of this we cannot that the admission of testimony trial a fair trial. defendant of deprived maintains, nonetheless, testimony trial and
Defendant
that Hernandez’s
admissibility
are
for
purposes,
his out-of-court statements
inseparable
to determine volunta-
“totality
must examine the
of circumstances”
that we
cases
the Fifth
“successive confession”
riness here.
Analogizing
L.Ed.2d
(1967)
Clewis v. Texas
U.S.
(e.g.,
Amendment context
[18
L.Ed.
Even that such arguendo *33 a allegedly in a third challenges party’s cable to cases which defendant statement,8 fail on these facts. we believe defendant’s claim must coerced concerning The federal9 constitutional standard successive confessions Oklahoma, v. 322 Court in by Supreme Lyons supra, was enunciated the here, U.S. was with situation in which Lyons 596. As the court faced a confession, obtain but that assertedly methods were used to a “improper Later, at trial. in and with place confession was not used the another (Id. the told the facts of the crime.” again different accused persons present, volun Lyons at 602 at observed that p. p. 1485].) L.Ed.2d “[t]he tary by a is determined a conclusion involuntary or character of confession accused, confesses, in of possession as to whether the at the time he is deny or suspected participation ‘mental freedom’ to confess to is . . . . . the earlier later crime. . relation between the [ft] that confession If the say so must control the character not close one the one facts of of other, conclusion, their in such an is triers of fact inference for situation, voluntary, be as uncertain should admitted confession ” (Id. cannot be a denial due at 602-603 L.Ed.2d at process. pp. pp. of 1485-1486].)
Here, Her surrounding we are that the asserted facts unpersuaded Mexico, of they may offensive as be to our notions nandez’s confession as conduct, necessarily testimony giv civilized “control the character of” First, by assertions that disagree en Hernandez at trial. we with defendant’s can be applied by coercion Mexican authorities somehow attributed “joint to the United States or that United States authorities were police, Leach, 92, 102, analysis we purposes supra, 8For of Cal.3d footnote “assumefd]” expressly . . We decide the this “doubtful of. law” in defendant’s favor. declined to issue] ] time, issue at that however. noted, considering in this con As the remedial exclusion of otherwise relevant evidence Markham, text, (See guided by supra, principles. we are federal constitutional 68-71.) is no contrary, there interrogation. venturers” in the Mexican On of at the behest United acting the Mexican authorities were evidence that officials, knowledge even had or that the United States authorities States they fact that United States beatings at the time occurred. The alleged Hernandez, they officials knew the Mexican would or police question authorities them a shared information about the crime with Mexican or lent by hardly indicates or tape upon request, knowledge approval recorder uti- assertedly interrogation United States officials of the tactics improper by lized the Mexican police.
Moreover, we believe Mexican any “taint” from Hernandez’s remaining confession escort border dissipated following was Hernandez’s across the account, United officials. Hernandez’s By any remaining States own threat border, once he crossed the and he confident beatings disappeared that physical coercion could not and would be used him here.10 against not He was at point this outside the his earlier completely reach tormentors and had no reason to further v. (See mistreatment. Leon Wain- anticipate wright (11th 1984) Cir. 734 F.2d 772-773 found [subsequent confession Oklahoma, voluntary Lyons under U.S. police when threats, obtained earlier statements physical force and but subsequent *34 statements were obtained “a different completely police group officers” “meticulously who explained” defendant’s constitutional rights before taking statement].) addition, Rackacaus,
In we note that in his interview with subsequent Hernandez, scrupulously avoided mention of the Mexican confession and, Hernandez although suspected possible United States awareness of his confession, Mexican he was never informed of threatened or with that fact. Nor was leniency statements, Hernandez offered return his for although he was told of the potentially grave charges he .faced and possible their penalties. Finally, Rackacaus although did not apparently read Hernandez his rights, Miranda arraignment briefly his was delayed, he was told in the informal interview that his not statements could be used him. against Thus, we are not persuaded that Hernandez’s statements to were Rackacaus coerced, unlawfully or they were a direct Mexi- product coerced can confession. we
Accordingly, conclude that subsequent events States United sufficiently any “taint” purged after the Mexican remaining confession. Even that a assuming analysis “successive confession” v. Lyons under Okla homa, 596, here, 322 U.S. is are appropriate we satisfied that Hernan- States, 10Hernandez go testified that after he returned to the United he “knew wasn’t [he] ing get say anything up beat or forced to didn’t to.” want [he] 506 so confession his Mexican sufficiently unrelated to testimony was
dez’s trial sum, we the earlier statements. “taint” from any possible to dissipate as fair to a right constitutional not denied his that defendant was conclude testimony. trial of Hernandez’s by virtue of the admission trial that Rack claim reject must also defendant’s In so we concluding, initial Hernandez’s obtaining misconduct” alleged “prosecutorial acaus’s testimony did not Hernandez’s If admission of merits reversal. statements fortiori, trial, efforts to pretrial prosecutorial of a fair defendant deprive fair trial. to a right defendant’s testimony did not impair secure that must be his conviction claim that reject we defendant’s Finally, testimony, made at hearing Hernandez’s preliminary reversed because codefendant, involuntary, and there was still a time when Hernandez defendant over binding the court in have been relied on fore should not other than those proceedings, commitment “Illegalities pretrial for trial. sense,’ se per are not reversible in the fundamental ‘jurisdictional are which Rather, show that ‘defendant trial. subsequent on an from appeal [must] a result of as a fair trial or otherwise suffered prejudice he was deprived (1980) (People Pompa-Ortiz examination.’ the error at the preliminary 851, v. Alcala 519, 941].)” 612 P.2d (People Cal.Rptr. Cal.3d 529 [165 Because we 1126].) (1984) Cal.Rptr. fair, “sufficiency of the his pretrial trial was conclude that defendant’s (1986) Cal.App.3d v. Moore (See must fail. People evidence” claim v. Flint 237]; Cal.App.3d Cal.Rptr. 1017-1018 [230 17-18 Evidence Corroboration—Sufficiency D. *35 that, by was found assuming Hernandez argues
Defendant insufficient corroboration be an jury accomplice, People presented “A cannot be 1111 conviction testimony. Section provides, Hernandez’s such it be corroborated testimony of an unless accomplice had upon the commission the defendant with evidence as shall tend connect proper merely if shows the not sufficient it offense; and the corroboration is The is key inquiry offense or the circumstances.” commission of the that defendant with the crime so tends to connect the whether the evidence the truth.11 telling (People is may accomplice be satisfied that jury 11 accomplice, because he did not know People argue Hernandez was not an The also (People v. Beeman the murders. purpose and intent to facilitate of defendant’s unlawful Rather, 60, urge 1318].) us to deter (1984) Cal.Rptr. 674 P.2d 35 547 Cal.3d [199 testimony independent require not whose did Hernandez was an aider and abettor mine that (no accomplice lia 3.14 under CALJIC No. Because the was instructed corroboration. 3.10 knowledge purpose) and CALJIC No. bility aiding assisting of unlawful if or without 71, 756 P.2d Bunyard 1206-1207 (1988) Cal.Rptr. Moreover, evidence if it connects the de 795].) corroborating is sufficient crime, to little fendant with the such evidence is and entitled although slight 3d consideration when alone. v. Garrison 47 Cal. standing (People Finally, evi “Corroborating nature, may may dence be circumstantial in consist of evidence of defendant’s conduct at (Garrison, p. or his declarations.” supra, Hernan- Assuming for the of this determination that purpose testimony dez was an whose corroboration under sec- accomplice required fully tion we are convinced that there was sufficient corroborating testimony at trial. above,
As explained testimony, addition to Hernandez’s statements of several other witnesses tended to connect defendant to the murders. Lee testified that days two before the victims he introduced Kreu- disappeared, ger to defendant after she told Lee that she was in need of Thereaf- money. ter, home, Lee testified that he drove Kreuger to her where he met Jones. Lee, According girls both discussed a “photo session” with defendant. committed, Garcia testified that on the morning the murders were he saw defendant and Hernandez leave defendant’s refinishing at a.m. At shop time, roommate, Stevens, the same the victims’ testified he saw the victims leave their 1:30 apartment at a.m.
On friend, the afternoon before her disappearance, Jones told her best Alimón, $500 that she and were Kreuger going “to make an easy by posing for nude pictures.” Alimón also testified that Jones told her if she had not returned noon day following was “something wrong,” and she was to “do something.”12 We conclude Hernandez’s testimony substantially (See corroborated.
Garrison, Cal.3d at p. 773.) E. Instructions Accomplice
The court instructed the jury on both the sufficiency of the testimo ny of a single witness and the requirement of corroboration for the testimo- (defining accomplice), an we believe the determination of Hernandez’s status as an accom- *36 plice properly jury’s was left to the determination. 12 addition, leaving shortly defendant and Hernandez admitted California for Canada af- they questioned by ter were police regarding the disappearances Kreuger of and Jones. learning The duo later fled police to Mexico after that the had discovered the remains of the Although jury may reasonably victims. we have held that a flight infer that a defendant’s guilt may demonstrates properly consciousness of and be considered as corroborative of an testimony accomplice’s (Garrison, supra, 773), p. 47 Cal.3d at the trial court refused the Peo- ple’s prolfered flight following objection by instruction propriety. an defense counsel to its It is by instructing. an Defendant contends that it erred so
ny accomplice. of merely one part, settled that “we must look to the entire rather than charge, 39 Cal.3d (1985) to determine whether error occurred.” Chavez (People P.2d After to the as a 372].) looking charge Cal Rptr. whole, claim, Contrary we find no error. to defendant’s we do not believe of corrobo- requirement was led to the instruction on disregard testimony ration for the of an the instruction on the accomplice view, sufficiency testimony of a witness. In our reasonable single rule jurors declaring would have understood the latter instruction as they witnesses and would have understood former governing generally, to be accom- stating as to witnesses who exception applicable happened 1268, 1313 (See v. Williams plices. generally People 834, 756 P.2d F. Privilege Hernandez’s Invocation Amendment of Fifth trial, the course of the Hernandez was with
During charged committing Safety two felonies under section 4573 and Health and Code section 11350 jail to heroin into and (conspiracy smuggle possession marijuana The record reveals drug paraphernalia). immediately following his arrest on those charges, Hernandez lied to the about his involvement police in activity. Hernandez was never offered foregoing illegal immunity connection with felony. either trial,
On cross-examination of Hernandez at counsel for defendant sought to Hernandez abuser impeach drug as and habitual liar questioning him, him the recent filed regarding charges against the fact that he lied to the after he was in the scheme.13Her police implicated drug smuggling nandez, however, Amendment, asserted the Fifth to refusing answer to the Defense counsel Her questions pertaining drug charges. objected to nandez’s on the ground right silence that it violated defendant’s to confront and cross-examine a witness under the Sixth As an Amendment. alternative to make a permitting Hernandez to limited assertion of the Fifth Amend ment defense counsel that Hernandez’s privilege, suggested testimony either stricken in entirety, immunity be its or that he be use granted exchange for his testimony. argument Defendant renews his claim appeal, that he suffered substantial ing because of Hernandez’s refusal to prejudice him. respond questions regarding charges against pending 13Indeed, chambers, prove counsel told the court he wanted to that Hernandez was “so jail much waiting of a heroin and so much of an alcoholic that even he’s in when [addict] testify, get he prior wants to loose. He uses heroin.” We note the record indicates that him, questioning charges pending against Hernandez about the counsel cross-examined him school, abuse, history years regarding cheating drug past his his 20 his convictions for burglary, police questioned and the fact that he had lied to the Canadian when about his in present volvement in the murders. *37 on the In to defense The in camera issue. hearing response court held an charges, on the and his objection drug counsel’s to Hernandez’s silence alternatives, that it the to the court was suggested prosecutor explained term on “very anything prison reluctant Mr. Hernandez short of a give to to us in just put these it seem like a balance charges, good new and doesn’t cross-examining order can do some just so that counsel position the very agreed what is collateral area here.” The court with clearly a after that “it is a collateral People determining charge, [Hernandez] that charge.” has an absolute to remain silent on about anything right Nonetheless, the if reargue the court stated it would allow counsel to issue discovery charges against further on the matter revealed the pending drug Hernandez affected case if directly (e.g., pending the fact present hence, charges formed the basis for a deal prosecution with motive to issue did lie). again. The not arise
We have consistently held that it is
the trial
discretion
within
court’s
exclude collateral evidence offered for impeachment
(see, e.g.,
purposes
Redmond
cumulative,
976]), as well as to exclude evidence that is
confusing or mis-
addition,
Code,
observes,
leading (Evid.
352).
as defendant himself
he
§
suffered no
as a
prejudice
testimony
result of Hernandez’s barred
because
the court allowed him to call other witnesses
(including jailhouse infor-
mant)
testify
about events
to the
leading
drug
charges
smuggling
against
Thus,
Hernandez.
jury
was well
of the
aware
charges pending against
Hernandez and was allowed to draw its own
inferences about
relation-
ship between Hernandez’s
use
credibility
habitual
and the
of his
drug
testi-
(See
mony
against defendant.
Davis v. Alaska (1974) 415 U.S.
318 [39
347, 354-355,
view,
L.Ed.2d
G. Admissibility Phillips’s Testimony
Defendant asserts the court committed error by reversible allow ing Kathy testify, over Phillips objection, his that in (three years before subject murders) she in a at defend participated photo session ant’s furniture refinishing shop during which defendant her photographed month, in the nude while she was bound and The next gagged. went Phillips for a ride with during defendant which he asked if her she to make wanted money more (Phillips using time). heroin at According to Phillips, defendant told her that “he take wanted to some more of other pictures women and take them out in the desert make he what he—what
510 defendant . . . .” stated Phillips movie a snuff flick or to as referred the photography with connection drug girls to he wanted told her just he “would and that sessions, really be brutal” them and “have sex with sadistic-type things and bondage be a lot of and it would make a movie had discussed addition, and defendant that she testified Phillips . . . .” In told Finally, Phillips discovered. they could not be so that bodies burying sell the eventually that he would mentioned to her had defendant Canada. States and Mafia in the United to the “snuff” movies have been excluded testimony should Phillips’s argues Defendant 1101, use of char- which bars (a), subdivision Code section under Evidence v. on People relies primarily Defendant conduct. prove acter evidence to Alcala, 604, 630-631, (1984) v. Tassell People 36 Cal.3d supra, 567, first 77, argument to his 1], support 679 P.2d Cal.Rptr. Cal.3d 89 [201 for which he was on the crimes remote to bear evidence was too that the charged. 1101, however, subdi note, Code section neither Evidence
As the People course, defendant, Of bars the evidence. nor the cases cited (a), vision acts” is inad offenses or “bad committed other that a defendant evidence v. Wade (People his criminal solely disposition. to prove missible if offered 905, On the other 750 P.2d Cal.Rptr. (1988) “motive, relevant to hand, activity prove is of other criminal when evidence absence of intent, identity, or knowledge, plan, preparation, opportunity, used. accident,” may be activity properly evidence criminal prior mistake or (1980) Code, Thompson (b).) subd. (Evid. § we determined that 883], “[a]s evidence, admissibility . . other- . circumstantial other of types [of with materiality (1) factors: three depends upon principal crimes evidence] tendency uncharged of the (2) the disproved; to be or sought proved the fact fact; the existence of material or disprove crime to prove (Italics origi evidence.” exclusion of relevant rule requiring or policy Wade, 44 Cal.3d at nal; p. see also naturally, and “logically, testimony prove tended
Phillips’s issue—identity—to which of a contested inference” the existence reasonable identity was contested relevant. The issue of acts were defendant’s prior maintained, to Her in contrast consistently the trial. Defendant throughout murders, and day he out of town on testimony, nandez’s that was Thus, murders. actually committed the Hernandez and Lee who that it was fact—that only disputed not testimony prove was relevant Phillips’s Her also to corroborate in question—but committed the crimes defendant the murders. perpetrator defendant as the testimony implicating nandez’s testimony disputed relevancy prove of Phillips’s Accordingly, identity. an inference sufficiently substantial to raise issue was material *39 525, 1, 762 P.2d Cal.Rptr. v. 47 Cal.3d 21 (1988) Malone (People [252 Thus, value of properly probative the trial court concluded that 27 Cal.3d prejudicial (Thompson, supra, its effect. outweighed the evidence 314, 321.) at pp. the time defend-
Finally, three-year we do not find the time between lag by ant committed the acts to and defendant’s 1982 murders Phillips testified significant Phillips’s testimony of Jones and as to render too Kreuger so to weight remote or unreliable. The remoteness of evidence its and not goes 615, reliability. v. Archerd 3 Cal.3d 639 (People (1970) Cal.Rptr. its [91 457, 421]; cf. v. Thomas 466 (1978) People 215, 573 P.2d of molestations more than Cal.Rptr. occurring [evidence 433] earlier years deemed remote and potentially prejudicial].) too event, any error was not Hernandez’s account of prejudicial. Considering the events corroborating the murders with the other surrounding along evidence it is that presented, highly unlikely we believe but for Phillips’s Wade, testimony, not have (See defendant would been convicted.
Cal.3d
H. Hitch Motion trial erroneously
Defendant claims the court denied his motion to or, alternative, dismiss in the for sanctions under Hitch 645-646 361], based on P.2d the prosecu tion’s failure to preserve and disclose the two potential names of defense witnesses.
Shortly after Kreuger early Jones and and disappeared, police case, Grace, investigation of the in charge Detective who was of the missing persons investigation for the Anaheim Police Department, by notified Jones, mother, Mrs. the victim’s that she had received a phone call from a Jones, man who gave his “George name as C. According Beckett.” to Mrs. Beckett telephoned her pay phone from (apparently response to fliers by issued the victims’ families in cooperation with the police) say that he 24, 1982, one had seen or both of victims on August at a truck in El stop Paso, call, Texas. Mrs. Jones notified Detective Grace the phone and Grace noted the number in telephone file. missing persons The record times, reveals that Grace called the number five there but was no answer. Grace, caller, According Detective a second who identified herself as Maren,” “Sandy told Grace she saw one thought she of the missing at a girls discotheque Orange County. Maren told Grace that she to call Grace if she saw the every night agreed the disco and she
frequented Grace did not ask Maren for her address. girl again. file, he never missing Grace filed the information
Although persons heard from either Beckett or Maren again, subsequent attempts failed. Defend- police defense to contact the witnesses department all argues ant both witnesses was crucial to his case because locating that connected the victims to the case was their identification made with dental charts. Defendant theorizes that because the time and date of precise unknown, the deaths was it is conceivable that the were killed girls *40 they by someone else after were seen alive the above two “witnesses” and context, In brought they to the desert where were buried. this defendant “totally that these could have exonerated” speculates “potential witnesses” by by defendant that the victims did not die at the time showing assigned the prosecution and Hernandez. Hitch,
In
duty
we determined that the
to
evi
People’s
preserve
dence
whenever there exists a
that the evi
applies
possibility”
“reasonable
dence would have been material and favorable to
the issue of
defendant “on
or
guilt
(12
649).
(1984)
innocence.”
Cal.3d at
v. Trombetta
p.
California
We recognized Johnson People 569, 767 1047], P.2d that because the Hitch formulation of the duty-to-preserve test was on federal due the federal premised process, test set forth in Trombetta should We also held in Johnson that our prevail. rule is the Truth-in-Evidence “compelled Trombetta adoption (Johnson, 8.” 47 Cal.3d at p. provision Proposition test, characterize as “exculpato Under the Trombetta we cannot ry” “substantially (one originated or material” the calls of which telephone they may from have seen the booth) claiming of two telephone people Moreover, observe, victims after the alleged murders. as here two actually the names and numbers of the police preserved phone alleged witnesses. Defendant’s true is that the failed to complaint police investigate callers’ adequately information and thus failed to obtain material evidence that would defendant. Because we find that the exculpate witnesses, authorities reasonably acted the names of the preserving we believe the court denied defendant’s Hitch motion. properly
Moreover,
not,
claims,
this is
as defendant
a case in which the court
evidence,
should impose sanctions for failure to obtain
or destruction of
evidence already obtained.
v. Zamora
(People
(1980)
Defendant claims the trial erroneously court hearsay on Hemmer, grounds, testimony of Donald Kreuger’s boyfriend. Hemmer would have testified days that several after Kreuger’s disappearance, while defendant and Hernandez were being interviewed Detective Shave of the Garden Grove Police Hemmer Department, received a call from phone man who identified himself as “Doug.” The record shows that defense counsel’s offer of indicated proof that the caller asked about Kreuger, said, then “I think that’s one of the chicks that went to Arizona Beth.” with Counsel told the court that he was not offering testimony that prove another “Doug” killed the victims but rather to substantiate Karen Bobie’s testimony that in September 1982 she had seen Kreuger and Jones in the 35-year-old of a company large man with dark in hair lot of the parking Garden Grove Mall and to show “that this contact did take place.”14 although 14Bobietestified that Kreuger, she had never talked to she had seen her twice (once with Donald company friends) Hemmer and once in the Kreuger’s of mutual before disappearance actually and that she had never met Jones. The testimony hearsay. The court excluded the on the that it was ground is court relied on the rule that of a declarant’s statement that “[e]vidence not the truth of the matter that is stated in such statement offered to prove, in but the truth of the matter that is stated such statement expressly, Jefferson, hearsay (1 is evidence.” Cal. Evidence Benchbook implication, 1.2, testimony ed. The court noted that Hemmer’s (2d 1982) p. 31.) § one, caller all Doug offered to show “Number we’ve [the was] .; been . that the in Arizona or went to Arizona talking girls about. [were] at or about this time when Mr. is accused of taken them to Douglas having the desert.”
Our that the court excluded the properly review record shows testimony hearsay hearsay and that none of the various grounds excep- Code, (Evid. recently tions As we stated in v. Ruiz applies. § (1988) Cal.3d “Section 854]: an (a), hearsay subdivision of the Evidence Code creates to the exception rule her for evidence of declarant’s statements his or then regarding emotion, state of mind or when the declarant's existing state of mind or case, in emotion is at issue or when the evidence is offered to or prove (Italics the declarant's acts or conduct.” No such ex- explain original.) case, could be met which the declarant’s state of ception present issue, only mind was not in and the value to the be to might evidence strengthen an inference that someone other than defendant killed Kreuger Accordingly, Jones. we find no error the court’s decision to exclude that portion testimony of Hemmer’s call from a regarding phone person himself identifying “Doug.” as
J. Jury Instructions
1. 8.11 8.31 CALJIC Nos. and on the During guilt phase, jury deliberations the requested copies instructions first and second murder the cir- regarding degree special and cumstance of murder. After for the record that both multiple stating parties instructions, agreed jury the with the the court admon- provide requested jury ished the that it consider the was not to instructions that portions deleted, had been and that it was to follow all handwritten directions noted the by court in the of the instructions. Pursuant to this margins request, jury was a of a CALJIC instruction on malice 8.11 ed. given copy (No. (4th vol.)) (i) 1979 bound that differed from the instructions read aloud court, (ii) and contained substantial deletions and annotations. jury
Defendant claims the written malice instruction to the given under the 1979 edition of CALJIC No. 8.11 a of law” was “misstatement inform that it jury and hence because it failed prejudicial adequately of the risk involved.15 subjective must find defendant had a appreciation jury Defendant asserts the was a written form of the instruction given human life” definition of only disregard implied included “wanton for instruction, claims, erroneously jury malice. Such an defendant allowed the subjective to find malice defendant had a or con- implied finding without scious awareness of the risk involved when he committed the crimes.
We disagree. recently Dellinger (1989) We held in 200], that the “wanton disregard human for life” definition of malice in CALJIC 8.11 implied No. adequately conveyed to the jury that it must find defendant had a subjective apprecia- tion of the risk created his actions.16 life-threatening
In a related argument, jury defendant claims the was misled because court, 8.11, in addition to version reading of CALJIC No. errone- ously read the 1983 edition of the second murder degree (CAL- instruction that, 8.11, JIC No. 8.31) unlike the 1979 version of CALJIC No. contained an alternative definition of malice in the disjunctive. Defendant argues providing jury with a written version of the (CALJIC 1979 instruction 8.11) No. in conjunction with reading the 1983 version of CALJIC No. 8.31, misled the jury as to its charge.17
Because we held in Dellinger that the 1983 versions of both CALJIC Nos. 8.11 8.31 conveyed the jury that it obligated was to find a defendant given 15The the written version of the first half of the instruction as follows: “ may ‘Malice’ be express implied either or express is unlawfully when there is manifested an “[Malice intention to kill a human be- ing-] implied is killing involving high results from an “[Malice intentional act de- [when gree death, probability base, that it will result which act purpose is done for a antisocial .................................. disregard with wanton for human life] f 16Although recognized Dellinger we practice charge that in the future the better is “to juries solely straightforward language in the disregard of the ‘conscious for human life’ *43 implied definition of malice as (49 reflected in the 1988 revision of CALJIC No. 8.11” Cal.3d pp. 1221-1222), at portion we nonetheless found either of the former instruction sufficient to jury subjective inform the that it must find a part awareness of the risk on a defendant’s be fore it could guilty find a defendant of murder. degree 17Thesecond murder instruction read as degree follows: “Murder of the second is killing being act, also the unlawful of a human as the direct causal result of an intentional in volving death, high degree base, a probability that it will result in which act is done for a life, purpose antisocial disregard and with wanton for human consequences or the natural life, dangerous deliberately which are performed by which act was person who knows endangers that his conduct the life of another and disregard who acts with conscious hu for (CALJIC (1983 man life.” rev.) (4th No. 8.31 pocket pt.).) ed. conduct, subjective
had of the risk involved in his we find the knowledge jury was not misled when the court read the entire version of CALJIC No. 8.31 jury only even the was thereafter with the first half of though provided CALJIC 8.11 during No. its deliberations. Jury
2. Admonishment to Finally, defendant asserts the special circumstance instructions were the confusing because court had struck four six of paragraphs through one 8.80 multiple-murder special-circumstance (CALJIC instruction No. (1984 ed. rev.) (4th and had written notes in the instruction’s pocket pt.)) side margins. Defendant contends the court committed error prejudicial jury the to see the allowing portions reject of the instruction that had been ed the court after failing provide jury admonition to the proper why it should not engage speculation changes the had been made. Defendant makes a similar argument regarding malice instruction 8.31 (CALJIC (1983 rev.) (4th No. ed. pocket that was modified. We pt.)) consider both arguments together. authority
Defendant’s fails to support his assertion that the court erred in permitting deleted instructions to be taken into jury jury room. The Moreover, was admonished not to consider the deleted material.18 defense counsel did not that the be clean request jury given of the instruc- copies tions nor did he object to the written instructions going jury. (See to the v. Bloyd (1987) 43 Cal.3d
We in Bloyd observed that section 1137 allows instructions to be taken jury Bloyd into the room. noted that “it would be if preferable jury instructions, not presented with copies ‘working’ but rather had before it a verbatim rendition of the actual judge’s (43 comments.” Nonetheless, at p. we there found no error been had committed allowing jury to take working instructions into the jury room and stated that specifically must be remembered . . . that jury can ask “[i]t for a rereading any instruction which it gives (Ibid.) As the pause.” instructions, giving jury Prior to provided following the written the court admon done, right. ishment: “All gentlemen, What I have ladies and with the consent of both the de prosecution, pull fense and my is those series of definitions and instructions I have in hand here, you you. and I intend to let take them back in the room with But let me admonish that, you lined, example, you particular for will see this instruction here there’s some red bottom, distance, although and also down at the quite it is not as clear from there’s some material, black lined out and that occurs a number of these are not to instructions. You consider all the through lined out material. Don’t read it. Just flat out don’t consider it. Okay. before, again, you . . . I So as said once I will admonish not to read that which is ” *44 says lined out unless it ‘Read it.’
517 observe, confused jury is no indication the here there People no error. as we find given. Accordingly, instructions Testimony at Reading K. Absence Defendant's of to be right personally Defendant asserts he was of his deprived testimony. right The of some present during reading guilt phase and cross-examine wit and the to confront presence companion right Fourteenth Amendments of the feder nesses are embodied the Sixth and 269, 456 Eyman 1972) al Constitution. v. Cir. F.2d (Bustamante (9th observes, As defendant he has a constitutional to be at trial right present Const., I, 15). under the state Constitution art. The (Cal. application § 977, statutory and decisional law that implementation (§§ 1043) pro vide a v. right California are summarized Jackson presence 28 149], 309-310 in which Cal.Rptr. the defendant was absent from an in-chambers on a motion for hearing mistrial: “The cases have which sections 977 and uniform interpreted ly have held that the accused is not entitled to be either personally present in chambers or bench jury’s at discussions which occur outside of the or presence questions law other matters which defendant’s presence ‘ does not bear a “reasonably substantial relation to the fullness of his ’ to defend opportunity against charge.” Stated in another [Citations]. useful, way, of the defendant presence will be or of a benefit to ‘[W]hen counsel, him and his the lack of becomes a presence denial of due process law.’ The burden is defendant to upon demonstrate that his [Citations.] absence his case or prejudiced denied him a fair and trial.” impartial (Ibid.-, see also People Hovey (1988) Cal.3d
P.2d 776].)
The day after deliberations began, the court read the requested testimony of (who Lee testified about victim to defend introducing Kreuger ant), (an Akers alibi witness who claimed to have to defendant spoken between 5 and 6:30 day a.m. on the of the murders), (who Tieffer rebutted Akers’s testimony) and Hemmer (who was called as a defense witness testified regarding his efforts to locate Kreuger). Defendant was not present at the reading, although defense counsel was present. As the Peo observe, ple defendant cannot demonstrate that his absence during reading of the above testimony his case or him prejudiced denied a fair trial. (Hovey, Cal.3d at p. 585.)
Defendant claims his would presence have ensured the accu- reading was rate and detected “whether distortion of the testimony occurred in the jury room.” Defendant also he argues had been his “knowl- present, edge facts of the case would have aided counsel in a factual presenting
argument that the reporter’s reading accurately did not reflect the testimo- ny he could have advised his counsel on the differences between [and that] testimony as filtered the court through and the testi- reporter’s reading as mony originally given.” Finally, defendant that argues had he been present jury “the have might drawn conclusions from demeanor dur- [his] ing testimony that it could not have drawn in his absence.” After record, considering the nature of the matter and reviewing we find defendant has failed to demonstrate prejudice. (Hovey, Cal.3d at p. 585.) Hovey,
Like the record merely here testimony shows court reread the of four witnesses to the (two and prosecution two defense witnesses), else, and defendant does not argue in addition anything to the reread- ing, took place would have his prejudiced right to a fair and impartial trial. As we stated in Hovey, “The rereading testimony ordinarily would not be an event which bears a substantial relation to the defendant’s oppor- defend, tunity to and in the nothing present record indicates that defend- ant’s personal would have presence assisted the defense in way. Defend- ant’s suggestion that the jury might have been favorably influenced defendant’s reactions to the reread testimony ... entirely is speculative carry and fails to his burden of establishing prejudice.” (44 Cal.3d at p. Finally, defendant argues that counsel could not waive right his to be at present reading testimony. Although only we can surmise from this record that counsel indeed waived defendant’s presence, defendant’s absence, waiver, even without was not prejudicial because the reading of testimony did not have a reasonably substantial relation to the fullness of Garrison, defendant’s opportunity to defend against v. charge. (People supra, 47 Cal.3d 782-783; v. People Rich 510, 755 Cal.Rptr. P.2d 960].)
L. Counsel Motions
1. Denial Right Testify No Following guilt and special circumstance of the trial phases and prior to the penalty phase, defendant filed an ex motion for parte substitute counsel pursuant Marsden (1970) Cal. 3d 118 motion, 465 P.2d of his support defendant filed a declaration 44]. Peters, that listed his principal complaints against his defense counsel. De fendant included in this list a complaint fully that counsel “did not explain to defendant what was happening regards to the defendant’s charges— trial upcoming during trial. Due to the defendant’s ignorance *46 not Defendant was years grammar school. only (7) a total of seven having and to aid testify not for his own defense of the fact that he would aware to counteract lies Defendant wanted the opportunity his defense. speech denied his of freedom of right Defendant was witnesses.
prosecution the defendant’s counsel.” by claim, first consider defendant’s the Marsden we
Before we address
be reversed because defense
related
that his conviction should
argument
testify
to
on his own
right
failed to advise him of his fundamental
counsel
behalf,
(See
that he take the stand.
requests
defendant’s
despite
repeated
166, 466 P.2d
214-215
(1970)
Cal.Rptr.
Robles
People
timely
contrary
demands to take stand
to advice
who
710] [defendant
jury].)
of defense before
right
give exposition
counsel has
claim,
Robles
we
that this issue is
analyzing
recognize
defendant’s
distinct from the issue whether trial counsel provided competent represen-
Thus,
contention,
tation in his tactical
in discussing
choices.
we
present
testimony
assume counsel’s decision to exclude
fell
defendant’s
well within
(See
v. Frierson
acceptable range
competency.
P.2d
by
We are satisfied
counsel’s
he
explanation on the record that
did not
defendant from
nor
keep
testifying,
during
did defendant insist
the guilt
Rather,
trial,
testify.
that he
phase
wanted to
it
that
defend
appears
during
ant actually agreed with counsel that
would not be in his best
testifying
and, indeed,
interest
would
the door for the
open
prosecution
present
addition,
damaging character evidence in rebuttal. In
the record shows that
trial,
throughout
defendant was in full accord
counsel’s
with
decision
that he not testify.
contrary
it
Accordingly,
appears
to defendant’s
motion,
statements in his
testify
Marsden
he was well aware of his
right
(Robles,
decided,
on his own behalf
supra,
214-215)
Cal.3d at
but
pp.
counsel,
the reasonable advice of
at trial
exercising
right
would not
have been in his best interest. We cannot now
his decision to
second-guess
counsel’s
accept
reasonable tactical choice.
we find no error
Accordingly,
Robles,
under
2. Error in Denying No Marsden Motion
We also find the court properly denied defendant’s motion for (Marsden, substitute counsel 2 Cal. 124). 3d Defendant’s list of complaints against counsel focused on tactical decisions counsel made be fore or trial in during order to further the defense. Defendant’s complaints included, others, regarding of counsel inadequacy among counsel’s fail ure to call a waitress from the Borrego bar where defendant and Springs bodies,19
Hernandez to have a drink before of the victims’ stopped disposing and decisions counsel to several “witnesses” keep testifying, from includ- who, trial, defendant’s alcoholic ing “eyewitness” wife and an before recant- ed his statement that he was with defendant on the day of the murders and with whom defendant had made a film depicting of woman rape two men. Defendant also criticized counsel for not certain evi- proffering dence, medical evidence of including gout defendant’s and his lack of equi- *47 librium, and evidence of his prior service as a marine. Defendant also about counsel’s a complained failure to that present police report showing he called the police days two after the victims disappeared stated he would “come away.”20 down and this get squared motion,
In in ruling defendant’s camera Marsden the court referred to the “alleged incidences of incompetence” listed defendant in his declara- tion, and found all such incidences to be trial tactics. The court told proper before, defendant: I you “As told Mr. I Douglas, think that the indications or you those facts which related to me would be better at the brought termination your of the in penalty phase automatic motion for new tri- .. . al. The alleged ‘incidences’ of incompetence, you, what have [fl] [are tactics, not but incompetence] trial which of the trial prerogative [are] counsel, . . . attorney. your And if motion is to have new I which take [1J] denied, it is for the then penalty phase, that motion is sir.” Our review of the hearing Marsden reveals the court denied the properly motion. (People (1988) Moore 47 Cal.3d Cal.Rptr. Moore,
P.2d 1218].) As we confirmed in the decision to allow a substitution attorney of is within the sound discretion of trial court as as the long court allows defendant the to enumerate opportunity specific of examples inadequate representation. (Ibid.) The record shows the court here spe cifically each considered of defendant’s reasons for a new attor requesting ney for the penalty phase, reasonably found that defendant’s claims were either unsubstantiated or resulted from postverdict disagreement with proper tactical decisions made counsel during guilt of the phase trial. Accordingly, Marsden motion was properly denied. 19The record Apparently, during indicates the witness would not have aided the defense. Hallihan,
an investigator, interview with Mr. defense counsel’s him bartender told open Contrary the bar did not until 11 a.m. to defendant’s statements that Hernandez’s testi mony a.m., stated the two arrived at the bar at 9:30 Hernandez testified on direct examina tion that he Borrego Springs p.m., and defendant arrived at the bar in at 12:30 an hour and a opened. half the bar after 20During case, hearing, investigator charge defense counsel stated that the in of the Mr. Shane, police indicated the receiving phone had no record of ever such a call from defendant. Denied Motion Properly 3. Keenan deny contention, erred the court defendant asserts
In a related Defend Marsden motion. his attorney preparing to assist a second ing behalf, appoint “motion for on defendant’s counsel prepared, ant’s trial evaluation,” Keenan to pursuant Marsden counsel for ment of independent Court v. Superior counsel, and, “in light according measure
108], as a precautionary interest, consider, without conflict counsel inability present new trial.” motion for defendant’s claims on the incompetence motion, persona propria noted defendant’s the court denying regarding complaints court of his informed the adequately Marsden motion attorney another counsel, unnecessary the rendering appointment also The court was Marsden motion. a new preparing assist defendant reason no compelling defendant had raised delay, with and found concerned *48 the court did not We and find agree, of additional counsel. for the assistance Moore, supra, (See the Keenan denying request. abuse its discretion in 76-77.) Cal. 3d at pp. Penalty
III. Phase Issues Dire
A. Voir Improper Qualification
1. Death Improper reversed because the the should be judgment Defendant contends voir dire the “death gave juror proposed qualification” court each of copies deci He asserts this violated our to individual questions prior questioning. 1, 80 v. 28 Cal.3d Hovey sion in Court Superior a jury death of 1301], qualification in which we that explained to its jury sentencing responsibili court could desensitize the panel open Balderas, that argues 3d Defendant ty. 144.) also Cal. (See supra, advance, the court to review the voir dire allowing jurors questions they to discover a which erroneously jurors pretext permitted potential or, serve as a conversely, they panel on which could could be excused death. automatically vote for member a to harboring predisposition while that, Court and Balderas Hovey v. Superior Defendant concedes unlike individually jurors sequestered questioned in this case were jurors, Nonetheless, asserts the defendant process. the death during qualification voir advance notice of the jurors effect of allowing potential prejudicial in an courtroom open voir dire conducting dire is questions analogous procedure We such jury disapproved with the entire panel present. Court, dire in favor of voir Hovey sequestered Superior voir dire death-qualifying each to the juror’s exposure in order to “minimize at (Id. p. of others.” here the decision- in the the court swearing jury panel, explained
After convicted of It stated that if defendant was to the making process panelists: true, circumstance was found special first murder and the degree Next, the court noted that it was “required would then decide penalty. entertain such a conscien- any jurors if there are who prospective ascertain his finding the death that would regarding penalty preclude tious opinion if the murder in the first evidence should guilty degree the defendant finding his or her justify such a would finding preclude and/or if the alleged as to one or all of the circumstances special truthfulness juror, if the be- justify finding findings evidence should such a or and/or would, no the death under objection penalty cause of his conscientious circumstances, “The a verdict of death.” The court then explained, vote for that, is, any juror we have who has such prospective converse of do verdicts that he would conscientious the two opinion regarding possible a verdict of death and under no automatically every case vote for a verdict of life without the imprisonment possibility circumstances vote for law you provides If entertain such conscientious parole. opinion, juror as a in this case.” you will not be or to serve permitted compelled be then the four each of them would panel questions The court read during asked sequestered questioning. *49 of the death jury
We are not that the advance notice to the persuaded Moreover, it become death defend- prone. caused to qualification questions that a court could logic suggesting ant has cited no evidence or persuasive ad- jurors induce bias guilt death-prone simply giving prospective or indicating dire Nor has he cited evidence questions. vance notice of the voir from the discussing the the court’s instructions to refrain jurors ignored reasonable possibility case outside the courtroom. We conclude there is no the was so “bombarded” with death and instructions jury penalty questions as its impair impartiality.
Finally, consistently individually questioned seques- the court advised the tered that the would not be reached unless defendant jurors penalty phase The was first found of first murder with circumstances. guilty degree special determination, necessary, court also that if one was penalty stated were be in the discretion. The court’s voir dire jury’s questions would Court, v. 28 Cal.3d similarly Hovey framed. As discussed Superior 80, is to mini- voir dire purpose sequestered at of individualized page to excessive exposing jurors pretri- mize the effects of potentially prejudicial “a re- Specifically, al and about the questioning penalty phase. discussion tendency minimize the duction in the on should pretrial emphasis penalty
523 By (Ibid.) conviction.” expect jury presume guilt death-qualified from them individually, prevented court jurors prospective questioning Accord- at (Id. p. their fellow panelists. influenced being improperly court’s possibility reading questions find no reasonable we ingly, su- (Balderas, facts. under these jury’s impartiality prejudiced advance 144, 191.) pra, Error
2. Witt/Witherspoon during the voir dire jurors sequestered Two stated prospective their exclusion not for the death Defendant asserts they penalty. could vote v. Illinois unduly (Witherspoon in a that was death prone. resulted 776, 784-785, 510, 1770].) 88 S.Ct. 391 U.S. 521-523 L.Ed.2d (1968) [20 cannot be excluded Witherspoon's juror he relies on mandate that a support, “unmistakably unless he it clear” against penalty for views the death makes force him vote death against regardless that those views would evidence, fairly or or him from prevent judging instructions would 522-523, 21 innocence. U.S. at fn. L.Ed.2d guilt (391 pp. defendant’s or [20 785].) at p. United in Wainwright
The States Court restricted Supreme Witherspoon 841, 844], 412 that a (1985) holding v. Witt 469 U.S. L.Ed.2d 105 S.Ct. [83 juror “unmistakably need not his against make attitude death penalty rather, held, excluded; clear” order to be Witt the correct properly standard for exclusion is whether a views prospective juror’s capital or substantially “would of his punishment ‘prevent impair performance ” juror duties as a in accordance and his (469 with his instructions oath.’ at 424 852].) recently U.S. L.Ed.2d at We the Witt p. p. adopted [83 v. 43 People (1987) standard Ghent Cal.3d Cal.Rptr. 1250], P.2d have subsequent (See the standard in cases. applied P.2d Guzman
Our review of the voir dire that each jurors shows of the two challenged views that made it clear that he forced to expressed against would feel vote Thus, regardless death of the law or their presented.21 evidence exclusion juror any penalty, Each he the circum stated that would never vote for death under example, disqualified juror following responses: stances. For the first had the your “Q. [By prosecutor] justified opinion penalty the . . . is it that the is never in a death case, given? never should be “A. Yes. I do believe . . . that. is, you “Q. any you What I would like to ask is there case where would ever vote for the penalty opposed parole? as possibility death to life without No, any penalty “A. I for the death in wouldn’t vote case.” disqualified juror responded questioning The second in a similar manner: may be excluded once the court holding jurors under Witt’s proper that their have substan- responses
has determined from their views would (Witt, tially their as at the impaired performance jurors penalty phase. Guzman, U.S. L.Ed.2d at supra, 852-853]; at p. pp.
Cal.3d at p. Activity
B. Other Criminal Defendant claims it was error to to consider permit jury several 190.3, instances of criminal prior activity (b), under section factor which allows the to consider “the or absence of criminal sentencing presence activity by defendant which involved the use or use of force attempted or violence or the threat express or to use force or violence.” We implied address each claim separately.
1. Testimony McGettrick and Pendleton In Julie McGettrick worked for defendant at a cocktail lounge called the Villa County. DTtalia McGettrick testified that de- Orange fendant her with a that she him in approached join proposition convincing girls to for and then young pose photographs killing dismembering end, victims. To this defendant drove unsuspecting McGettrick to Yucca Valley search of a location to commit his acts. McGettrick testified that defendant told her he girls wanted the “to be cut but still up, bleeding ,” . . conscious. and that her role in the act would be simply appear defendant once he tortured the photographs planned taking girls. Although McGettrick testified that she nude for defendant posed during desert, to the she said she out of fear. trip did so Defendant had shown her a in the car before she removed her gun clothes and the were taken photos next to the car. McGettrick testified that she followed defendant’s instruc- tions to for the because she feared defendant was pose photos going grab and use it on her. gun later, Pendleton,
A days few McGettrick Vickie another approached DTtalia, at if employee the Villa and asked she would be interested in “Q. you telling you morality feelings . . . Are us . . . that have that would not enable you penalty to vote for the death case? “A. Yes. “Q. regardless you penalty? And vote in evidence would not favor of the death right.” “A. That’s case, “Q. [By your [(the juror’s)] opinion, there is how heinous no no matter court] be, be, may may you guilty party the crime and no matter how never for the would vote *51 penalty? death parole. “A. I would for life vote without “Q. penalty? And never for the death “A. Never.” Pendleton, to drive agreed and defendant McGettrick defendant. for posing session, and defendant but when Pendleton to the for a photography desert motel, to the door. refused answer McGettrick’s she arrived at There, Valley. Pendleton tes- Yucca and defendant drove to Pendleton tified, I it was ether rag guess with a and me from behind “got defendant regained ...” When Pendleton and I out. and he me drugged passed her with consciousness, two in front of was about feet standing defendant in his hand. pistol he to her. why According defendant this doing
Pendleton then asked Pendleton, head I better urinate my to and said “put gun to defendant was so nervous on to kill me.” Pendleton stated she going him or he [was] orally copu- forced to not urinate. Defendant then Pendleton she could that she would help late him. Pendleton testified convinced defendant she Canada, activity him in of to photos his to torture women and send plan Thereafter, defendant Pendle- they allegedly bought. gave where would be $50 and ton let her after him she was sick from the ether she go and she told day again. would contact him in a two. Pendleton never saw defendant or 2. Boyd Asserted Error Boyd (1985) Cal.3d 773-776 People
P.2d examined and that at the 782], penalty we section 190.3 concluded character, of conduct which is phase: background, “Evidence defendant’s or probative tendency not factor would no specific prove listed have action, and disprove or a fact of to the determination of the is consequence aggravation.” therefore irrelevant to Cal.3d at Defend (38 p. 774.) ant trial court argues by allowing committed reversible error McGet 190.3, trick and criminal section testify activity Pendleton about under testimony factor and that the court have ruled their (b), should inadmissible as not any statutory factor in bearing aggravation. however, observe,
As the section con contemplates 190.3 criminal factors aspects history (see (b) sideration of some a defendant’s felony criminal as [prior activity] (c) [prior conviction]), long violent & as demonstrating the evidence is limited to conduct the commission of an actual statute. In crime—e.g., Boyd, violation of we clarified the penal 190.3, factors section it (b) (c) by making distinction between clear consider, that the statute factor permits (b), any under defendant, activity by violent criminal whether it to prosecu or not led conviction, conviction, (c), any felony tion and factor prior under whether or not the offense was violent. underlying (Boyd, at p. 776.)
Thus, evi entitled to the testimonial present the was prosecutor activity” criminal McGettrick and Pendleton as evidence of “prior dence of actually defendant never (b) though under factor of section 190.3 even was Defendant’s a to Pen gun with a crime for this conduct.22 charged putting orally (forcible head and her to him oral forcing copulate copula dleton’s tion, deadly driving false and weapon, imprisonment) assault with desert, for McGettrick to the her a her to showing gun, telling pose all violent crim (false assault) nude were either photographs imprisonment, thus were inal offenses or the use or threat to use violence and implied circum jury’s for the consideration as presented aggravating properly stances under factor (b).23 Murder—Testimony
3. Arrest Attempted Defendant’s for Pamela Sue Williams
a. Facts testified she met 1977 after he her July picked Williams defendant $50 after when she was in Santa Ana. Defendant her up hitchhiking gave they talked for two hours in a bar. She told defendant her name was Debbie Adams. conversation, their defendant told Williams that he wanted to
During movies, make snuff Williams to find 13 to using young girls, preferably aged jury it criminal We note the was instructed that could not consider the other offenses beyond them.” unless it was “convinced a reasonable doubt that the defendant committed (See People 53-54 Dur Robertson P.2d ing closing jury’s considering argument, prosecutor emphasized further role in his testimony activity, by informing jury Pendleton’s about other criminal that: “There’s testimony pictures been some substantial cross-examination of her and there’s some that were and, frankly, question offered it seems reasonable to look at it and to have a reasonable or reasonable doubt to whether or not Vickie into the situation she as Pendleton was forced being in. talks about “Now, untruthful; just say- get wrong. saying being me I don’t am not Vickie Pendleton is evidence, you ing testimony corroborating might that as look at her without other there well goes. conceding be a reasonable doubt as far as that . . .” Far from the lack of evidence to crime, claims, jury’s prosecutor emphasizing the above in con- as defendant role reliability sidering jury’s penalty the other-crimes evidence to ensure determination. objection The also observe that defendant made no to the other-crimes evidence Instead, statutory ground on the that the evidence did not relate to one of the factors. the rec only testimony objected portion explained ord reveals defendant to the of Pendleton’s jury plan “picking up defendant’s to include her in a scheme that involved hitchhikers taking objected torturing them . . .” Defendant on the out the desert and them. 190.3, ground testimony objection was not relevent to section but the was overruled the trial court. object failing testimo- Defendant now claims counsel was ineffective for to McGettrick’s 190.3, ny. properly Because we find the evidence was under section considered (b), separately factor do claim ineffectiveness. we not consider defendant’s *53 Williams old, wanted year a 25 old. Defendant but would settle on years Williams He pictures. promised he took the girls to the while torture the $1,000 told Williams her effort. Defendant for she be paid would in and then distributed to for developing film be sent Canada would States from Mexico. United defend- her conversation with eventually told the about police
Williams guy this “got feeling she a 13-year-old daughter, had a and ant she because investigating in police to with cooperate was real.” Williams agreed for two device and introduce tape-recording and to wear a agreed defendant victims. as defendant (Baucom Reynolds) potential and to policewomen defendant, his po- to who told then introduced the policewomen Williams making a lesbian film he was “victims” that he them to act in tential wanted officers in offered to pay the desert Palm Defendant “past Springs.” $500 and Baucom in 120 photographs. to apiece participate approximately day and at the Two Reynolds to meet Williams defendant next agreed their Guys lot Garden Grove to parking implement plan. 20 min- and conversed about morning,
The next defendant Williams for arrived. Guys utes in the Two lot before the undercover parking agents conversation, had been record included a Williams wired to which discussion torture then film his gruesome by defendant his to and plan conversation, victims’ instructed agony. During intended defendant also victims, in her pistol Williams on how to tie the and her to gave place He told her that he also had a rifle in his car. purse. arrived, an agents
After the defendant Williams drove them to area and of San Bernardino State “Old County (off 247) known as Ghost Highway Defendant charged attempted Road.” was arrested and with subsequently (§ 187), (§ 653f) pos- murder solicitation to commit a crime and unlawful firearm (§ 12022) session of a The informa- connection with incident. eventually tion amended solici- was twice and defendant was with charged murder, deadly tation of of assault assault solicitation with weapon likely produce bodily force to harm and murder. great attempted matter, after the failed to in the reach a verdict above court declared a mistrial. Defendant pleaded nolo contendere to solicitation certain felony subject commit enumerated crimes under section 653f—a years’ imprisonment. three The reveals defendant understood the record nolo plea contendere “shall be the same as a plea guilty.” considered years’ with granted probation including Defendant three terms one days custody, hundred fifteen with credit for all served. days Thereafter, the court denied defendant’s motion to reduce the misdemeanor, motion, felony to a but his to section granted pursuant 1203.4, based on dismiss the information enter a of not plea guilty probation. successful completion his to exclude all evi- defendant renewed his motion
At the penalty phase, criminal that defendant’s incident. The court concluded dence of the 1977 *54 of section 653f and led to to a violation activity eventually that his pleading satis- later after 115-day (albeit suspended of a term prison the imposition of admissible type prior amounted to the factory completion probation) 190.3, (b). factor activity under section contemplated criminal jury to consider allowing Defendant now asserts the court erred it (i) have been excluded because: He claims the evidence should evidence. it barred (ii) was bargain principles, violated double jeopardy plea limitations, 1203.4, (iv) section it was barred the statute (iii) under irrelevant destroyed, (v) physi- had been notes from the 1978 trial reporter’s testimony, (vi) was introduced to corroborate Williams’s cal evidence violence. As we involve violence or the threat of the 1977 crime did not has merit. find that none of defendant’s contentions we explain, Double b. Jeopardy
First, that double jeopardy principles pre defendant’s contention We support. his crime his trial is without during penalty clude use of 1977 double guaranties against jeopardy with the that constitutional agree People offense is used as an do not trials when the apply subsequent prior enhancement, activity criminal nor do such when principles apply prior penalty jury proper aggravating factor under is considered as a 190.3, (b). section factor 713, v. 44 Cal.3d (1988)
We a similar claim in Melton rejected People 867, 741], argued 750 P.2d in which it was 754-755 Cal.Rptr. [244 “should be activity” subject bargain “criminal which was the of plea prior such offenses would inadmissible at a trial subsequent penalty [because] beyond those to ‘adverse subject sentencing consequences’ [a defendant] There (Id. 755.) were entered.” at we bargains p. to at the time the agreed 190.3, any to consider violent held that section factor (b), permits bargained charges—and dismissed or activity—including prior criminal a defendant was only prosecut consideration of crimes for which precludes 755; (1989) v. Sheldon (44 ed and Cal.3d at see also acquitted. p. People 242, 935, 1330].) 771 P.2d As Melton ob Cal.3d 949-952 Cal.Rptr. [258 served, not an as ‘acquittal’ conviction or dismissal is de bargained “[a] Indeed, were defendant’s (44 755.) scribed in Cal.3d at p. section 190.3.” full, not be admissible convictions would argument bargained “accepted for the later to enhance the subsequent prosecution punishment prior sentences for enhanced providing the several statutes None of offense. at (Id. p. a limitation.” such 667.6) suggests (see, e.g., ‘convictions’ §§ 147, 193-194 45 Cal.3d v. Heishman 756; People see also contention defendant’s reject We therefore P.2d Cal.Rptr. (Melton, 190.3. under section not an bargain acquittal is plea because at p. on made in reliance Next, argument, related defendant’s reject we 396], that Harvey (1979) v. violated bargain to a plea dismissed charges pursuant introduction con sentencing no adverse he would suffer understanding the implicit We have charges. the dismissed underlying because of the facts sequences cases (People and subsequent contention Melton rejected the identical *55 631, and 18, 1109]), P.2d 47 767 Cal.Rptr. 48 Cal.3d (1989) Robertson [255 defendant’s claim. reject stated therein we for the reasons 1203.4 c. Section the from jury that section 1203.4 argument prohibited
Defendant’s is specious. facts the solicitation considering underlying surrounding the his of nolo merely plea 1203.4 a defendant to withdraw Section allows of his proba of not once the conditions guilty contendere enter a plea contention, in that Contrary nothing fulfilled. to defendant’s tion have been the facts of the considering in a case from jury capital section the prohibits v. 43 (1987) As stated in Gates People crime that rise to the offense. we gave 1168, 666, “When with dealing 301]: [240 in the which is probative violent conduct it is not the of conviction fact rise to gave but rather the conduct of the defendant which penalty phase, (Italics the offense.” original.) Statute Limitations
d. “stale,” in activity that the violent was prior Defendant also asserts trial, the years that it occurred more than seven before sense that the satisfy penalty failed to Amendment Eighth requirement thus 472 U.S. (See determination be reliable. Caldwell v. Mississippi 231, 246, We have consis 105 S.Ct. We disagree. L.Ed. 2d 190.3, no time limitation tently (6) imposes held that “[section factor] crim crimes; may consider the introduction of ‘violent’ presumably . . . life. inal violence has occurred at time in the defendant’s which [fl] criminality to show de (b) . . . allows in all evidence of violent [Factor] 202; see 41 Cal.3d at (Balderas, supra, p. fendant’s for violence.” propensity Ghent, addition, the evidence was In 774.) supra, before years seven activity not stale because the occurred simply prior Instead, evi trial. the evidence was relevant and reliable defendant’s 1984 con criminality. Accordingly, jury’s defendant’s violent prior dence of activity criminal under proper sideration of defendant’s prior 472 U.S. at reliability. (Caldwell, pp. Amendment standard of Eighth 340-341 at 246-247].) L.Ed.2d pp.
e. Lost Reporter’s Notes at guilt phase Evidence of the 1977 offense was declared inadmissible Code, it (Evid. (b)) grounds as a similar act subd. on the prior § outweighed constituted cumulative evidence and its value was probative Code, (Evid. brought its effect. Another motion was prejudicial § exclude the crime from the on the that the penalty phase ground reporter’s trial, jury, routinely notes of the 1978 in a had been discarded ending hung authority section statutory 1984 under the of Government Code duty subdivision Defendant now claims the had a (d). prosecutor in the (which the notes were discarded after arrest warrant preserve he defendant) case had been issued for once became aware present addition, defendant was case. defendant prime suspect capital substantially ability hindered to cross- *56 the the argument theory jurors Defendant’s rests on who primarily heard the 1978 case were unable to on a verdict and thus were not agree Therefore, reasons, convinced of defendant’s defendant the guilt. reporter’s notes contained evidence that would have been useful in exculpatory expos- in ing the weaknesses the case. prosecution’s argument
Defendant’s is Destruction of a court misplaced. reporter’s notes, absent notice to the court defendant wishes the notes indicating Code, 69955, event, lawful. (Gov. (d).) is subd. the preserved, § validity of the notes bore little relevance to the of the discarding reporter’s indeed, ability defendant’s to cross-examine witnesses was not affected plea; notes, because, observe, by the absence of the as the he had access to People the the preliminary hearing transcripts police reports (including tape he Williams made in the the the recording day crime). lot on of parking Trombetta, 413, 479, 488 Ac- (Cf. 421-422].) 467 U.S. L.Ed.2d supra, we find defendant was not the cordingly, prejudiced discarding reporter’s 1978 trial notes.
f. Physical Evidence of Offense
Defendant next asserts that a number of items of evidence physical saw, knives, cleaver, (a found in the tape underwear), and women’s rope, defendant appar- few feet of where a sand within a under the tarp desert the erroneously admitted at were the ently policewomen, took undercover in a to commit plan preparation as of defendant’s phase evidence penalty to returning before the items the sand placed (defendant allegedly murder later). Defendant victims a few hours with the intended spot the same substantially more preju- have excluded as the evidence should been claims 352. Code section than under Evidence probative dicial admitting role in misconceives the court’s argument defendant’s Again, rely to Permitting People penalty other-crimes evidence at phase. or a nolo contendere a crime a ending plea evidence of physical aggra falls charge attempted murder) within (here, scope dismissed 190.3, subdivi jury may evidence the consider under section vating penalty 739, is not 774), admissibility 43 Cal. and its (b) (Ghent, sion 3d supra, defendant, he is to an instruction unduly to the “for entitled prejudicial beyond which that the find a reasonable doubt that the offense requires Robertson, omitted; was committed.” italics see also Cal.3d (Ibid., Such an here. given instruction was Moreover, v. Karis
659, 758 P.2d stated court have 1189], we that “the does not discretion at the of all of ... prevent penalty phase prior introduction evidence 641-642, Rather, felony.” (Id., added.) violent at fn. the court pp. italics retains discretion section manner in regulate, under which evidence is at here was presented. (Ibid.) The evidence issue not presented Thus, unduly in an items admitted prejudicial manner. because the were that the during penalty support claim 1977 solici phase People’s doubt, beyond tation occurred reasonable we conclude trial court correctly its at the under factor permitted presentation penalty (b) phase *57 Melton, 612, 641; 46 44 (Karis, section 190.3. Cal.3d at supra, supra, p. 86, 713; Cal.3d see v. People (1988) Cal.3d 128-129 Thompson [246 245, 37].) 753 P.2d Cal.Rptr. to g. Solicitation Commit a Violation Section as 653f
Containing an Threat Force or Violence Implied allowing jury Defendant asserts the court erred in to hear evidence of the prior solicitation because it did not involve force or violence 190.3, or the threat of as factor We required by violence section dis (b). found, As the agree. felony trial court solicitation to commit a under section 653f involves the threat required to use force or violence as under implied 190.3, 29, v. 65-82 (See section factor (b). People Phillips (1985) 127, P.2d Cal.Rptr. [222
h. Instruction Unanimity Ghent, in 43 Cal.3d us reconsider our urges holding Defendant 739, 773-774, activity criminal jury’s finding uncharged that the of prior Ghent, that “in in here was instructed jury need not be unanimous. As determination must jurors as to the all twelve penalty, order to make in that there is correctly “nothing improper Ghent found agree.” criminal individually uncharged each to decide whether permitting juror and, so, if what activity beyond weight has been a reasonable doubt proven (Id. at We see activity deciding p. should be given penalty.” no reason to reconsider that finding. Sentencing
C. Instructions
1. Brown of sec mandatory sentencing
Defendant contends that the formula tion withdrew from together prosecutor’s closing argument 190.3 with He relies on jury constitutionally sentencing its discretion. compelled 47 Cal.3d (1989) our reversal Edelbacher penalty judgment People (and 766 P.2d cases his cited), support Cal.Rptr. 1] to the context of the jury respect proper that the was misled with argument and its discretion to determine the weighing process appropriate penalty. however, Based on the instructions and we conclude the arguments, was not misled about its role in of death determining appropriateness v. Brown weighing under our interpretation process 440], 538-545 Brown, (that we concluded that the directive of section 190.3 the trier if it aggravating of fact “shall a sentence of death” “concludes impose circumstances”) circumstances did not outweigh mitigating impermissi- observed, bly restrict the constitutional discretion. We jury’s sentencing however, statutory confusing that the “shall” con- language potentially role, that future be further cerning jury’s juries and thus we directed addition, instructed on the of their discretion. In we stated scope sentencing that each case decided before Brown “must be examined on its own merits whether, context, have been misled to may determine the sentencer defendant’s about the of its discretion under the prejudice scope sentencing *58 544, fn. (40 1978 law.” Cal.3d at p.
As in v. Allen 1276-1277 we stated essentially concerns in Brown were two: 115], our first, jury the the unadorned former CALJIC No. 8.84.2 instruction giving that might jury weighing decisionmaking lead the to misunderstand its and factors on each side counting mechanical a mere required responsibility “shall” that use of the word Our second concern was of an scale. imaginary having ques- return a death sentence without jury mislead the might whether, death is the juror, moral of each judgment in the personal tioned Guzman, 1276-1277; supra, at Cal.3d punishment. (42 pp. appropriate at p. 958.) would have jury indicates a reasonable Our examination of the record heard the it Although its role in determining penalty. understood proper instruction, instructions it also received additional special standard “shall” First, factors by jury aggravating defendant. the was told requested beyond be a reasonable strictly limited statute and must proved were “could, alone, doubt, be sufficient to any mitigating standing whereas factor if parole of life without the justify imprisonment possibility sentence jury The you outweighs aggravation.” find that it the circumstances and mitigation told that “the to be to the circumstances weight given also you is a matter for to decide.” aggravation
Moreover, jury and the stressed to the both the defense prosecution that it alone was to weighing process normative nature of the and cautioned decide For the individual nature of the penalty. example, explaining “Now, jury: obviously you told the can’t weighing process, prosecution ‘well, five say, this factor is worth three and this one is worth pounds; ounces, much,” and the jury this one is worth that while the defense warned factors, job that its was “to them.” weigh the not count Defendant objects to the fact that his during concluding argument, you told the prosecutor jury: “This isn’t a close What have with question. aggravation, you really these factors is and don’t aggravation, aggravation, have I here. mitigation, you So submit to that there is no alternative ffl] case, only—if you you The follow the in the if listen to the instructions law court, you you by follow the there is no guidelines given possibili- ty only different verdict. The verdict the law and proper following following the is the death guidelines penalty.”
Defendant argues may jury the above comments have misled the as to the well, of its discretion and Cald scope sentencing (See, e.g., responsibility. The disagree. U.S. 328-329 L.Ed.2d We merely aggravation comments made the case prosecutor presented insubstantial, not, as and the case in and did as overwhelming mitigation as claims, mandatory defendant stress the nature of the death or lead penalty jury to believe that the determining for responsibility appropria teness of death rested elsewhere. In of both the light arguments defense, regarding could not have been misled its prosecutor *59 in death appropriate whether was determining sentencing responsibility 57, 104, 112 44 Cal.3d (1987) v. Miranda (See People [241 this case. 1142, 48 Cal.3d v. Hamilton 1127]; People 744 P.2d Cal.Rptr. 774 P.2d Cal.Rptr. Brown, 3d Cal. concern In to our second turning for deciding for that it was jury responsible record shows the understood (Guzman, supra, punishment. whether death was the appropriate itself at p. it deemed jury weight to ascribe what The told prosecutor repeatedly factors, determine, based on these and to to the relevant factors appropriate court the rules that the He stated: “Follow was penalty appropriate. what that, if do that you you if do way, the decision that and you and make gives or another astray to be led one going can’t You’re not you go wrong. nature, the evidence Just look at or of that pitch something emotional [fl] based on it.” and make decision jury: he told the closing argument, the course of defense counsel’s
During “Now, many thoughts must have you of the nature of this case because head, you your did reached the verdict your having but going through and just appropri- and society fashioning concerns are protecting primary ate verdict.” jury that the was agree of the above we cannot light arguments, the relevant factors ascribing weight
misinformed about its role factors, appropriate penalty.24 based on these deciding, (k) 2. Factor “Error” factor instruction 190.3,] (k)” an jury given “expanded
The [section 858, 878, Easley (1983) the one prescribed similar to The was directed to 813], jury footnote 10 of the gravity which extenuates “Any consider other circumstance crime, other factor not a excuse for the though legal crime even it is including mitigation penalty, as a factor in by the defendant proffered ” (Italics added.) his character. required the argument used the court reject that the verdict forms 24Wealso defendant’s mechanical, merely repeat mandatory fixing penalty. The jury process in forms to use a ones, death; penalty is outweigh mitigating jury aggravating circumstances that if it finds ones, outweigh aggravating mitigating conversely, if circumstances the forms state that failed to show us how such routine possibility parole. Defendant has penalty is life without process. have misled the in its deliberation forms could
535 into jury misled argument Defendant claims that prosecutorial character it to defendant’s believing assign mitigating weight that could not however, conclude, would not have jury evidence. We that reasonable character and duty been about its to consider defendant’s mitigating misled background determining penalty. above,
In the court also instructed the addition to the instruction noted mercy “In for jury: your you may sympathy deliberation consider pity, However, you may the defendant in not deciding penalty. appropriate by be mere or We believe governed conjecture, prejudice, public opinion.” factor instructing jury (k)” both under “expanded above, that it jury the court informed the “sympathy” language adequately could consider defendant’s character evidence in mitigation.
Moreover, above, any jury’s as in our Brown discussion doubt about the is both counsel’s The told understanding dispelled arguments. prosecutor the jury that the instruction it “some reduce the gave basis which to upon whole, seriousness of . . . the offense .” After the record as a viewing we are satisfied the informed the that it prosecutor’s argument simply jury could consider reject and then defendant’s “character” evidence a miti as gating factor or afford it little weight determining the appropriate penal ty. v. Odle 45 (People (1988) Cal.3d 754 P.2d Cal.Rptr. addition, counsel, 184], and cases cited.) defense after his describing bleak as an background family family family from to orphan “passed abuse,” . . . probably subject jury to some told the that it could consider sympathy and for the defendant. Under pity light these facts and defense counsel’s we cannot arguments, conclude was misled consider, duty about its as mitigating, evidence of defendant’s character. D. Asserted Prosecutorial Misconduct 762, 772-776,
In Boyd, supra, we held that “the prosecution’s case aggravation for is limited to evidence relevant to the factors listed exclusive of factor section (k) that factor encompasses [of 190.3]—since only extenuating circumstances and circumstances offered as a basis for a sentence less than may death—while the defense evidence relevant present any 775-776; listed factor including (k).” (Id. at see v. Howard pp. (1988) Cal.3d The prosecu nonetheless, may tion on rebuttal defendant’s following presentation evidence, (k) factor evidence “tending introduce to ‘disprove disputed Code, fact that is of consequence (Evid. to the determination of the action.’ 210.)” (Boyd, Cal.3d at Defendant asserts the p. 776.) § prosecutor’s jury—that comment to the defendant’s character evidence error reversible side”—constitutes aggravation on the a check mark
“gets Boyd. under *61 reveals, however, comment prosecutor’s that the record review of the
Our 190.3, and on (b), factor of section aegis under the was made primarily (k) (“good of factor lengthy presentation defendant’s following rebuttal admissible, under even evidence was Because such character”) evidence. error. prejudicial did not constitute find the comment Boyd, prosecutor’s we Evidence Victims’ Character E. to the vic references that the prosecutor’s
Defendant complains
character
“victim
or
impact”
amounted to
closing argument
during
tims
States
Supreme
the United
been ruled inadmissible
evidence that has
L.Ed.2d
U.S. 805
(1989)
v.
490
South Carolina Gathers
(See
Court.
[104
L.Ed.2d
876,
Defendant specifically . . . type and get sympathy pity “You will summation. prosecutor’s outset, be certainly kind of a case shouldn’t I this like said at arguments It should be speaking. for oratorical giving grades decided on the basis of here, He then asked the factors are.” on what happened decided on what That be a might shoes for a minute. in the victims’ jury: yourself “Put as to something so doing stupid it is hard to think of little difficult since The in the nude.” prosecu- to be photographed out to the desert agree go that, is, what top and then on “What offense that argued: huge tor also for the just person a not family? tragedy, This is does it do to that person’s likes to killed, . . . in this case this society. guy And family but the you life, about one one talking We are not two victims at time. deal with We are two.” family. talking about disagree. reversal. We above comments require
Defendant claims that the from view, the crime bars comments on neither Booth nor Gathers our or their families. to the victims or references the victims’ perspective, brief 507, see also 451]; 10 L.Ed.2d at p. at fn. (Booth, p. U.S. supra, [96 Lewis, ante, 834, 892]; 786 P.2d Cal.Rptr. v. at p. People (1989) v. Carrera Moreover, reveals that the prosecutor’s of the record our review cir- merely aggravating to the case emphasized comments this crime, namely, nature of the violent acts cumstances of the inhumane victims, inflicted on two that the victims were executed without implied far The victims were indeed references to the provocation. prosecutor’s than in either Gathers or Booth and reiterated fleeting more those made victims, jury already what the murder is a against knew—that crime (Lewis, ante, society. their families and at p. if
Even we were that the to conclude comments violated prosecutor’s Booth, of Gathers and we find there no proscriptions would error beyond reasonable doubt. 386 U.S. (Chapman California *62 705, view, 710-711, 824, L.Ed.2d 24 1065].) 87 S.Ct. A.L.R.3d In our the brief comments could not the its prosecutor’s jury have diverted from task of determining punishment. appropriate
F. Assertedly Failure to Delete Aggravating “Inapplicable” Factors/Davenport Error
Defendant asserts the court should have deleted from CALJIC No. factors, assertedly 8.84.1 the it “inapplicable” and that was error to read jury entire of statutory list factors. We have addressed the identical claim in recent we cases which have that explained of “presentation range entire necessary factors is jury order to allow the to decide for itself whether it, asserted factors are present on the record before and to weigh those factors accordingly.” (Guzman, 915, 965; Cal.3d see supra, Ghent, 739, supra, Cal.3d 776-777.)
Nonetheless, defendant contends the prosecutor emphasized, prejudice, defendant’s assertedly be “inapplicable” statutory factors cause he used a chálkboard to outline each and essentially factor “checked off,” under each factor for aggravating, which evidence in mitigation was absent. v. People 794, Davenport (1985) Cal.3d 288-290
As stated jury we was told that aggravating factors were statute, strictly limited doubt, must be proved beyond reasonable could be considered only applicable. jury if Here the in- adequately formed its sentencing responsibility and of the factors to consider in its noted, and, the admonition to con- it received as sentencing determination rebuttal, Moreover, em- defense counsel only factors. “applicable” sider with disagreed that he Initially, jury he told the the admonition. phasized Coun- factors as aggravating. of some of the the prosecutor’s interpretation you can consid- says also to the that “the instruction sel then explained ‘if factors, applica- phrase, phrase, prepositional and it has small er these doesn’t fit into these you categories this means is if find one of ble.’ What [If] factors, mean an aggravating it. It doesn’t it is you regard are not to these the prosecutor’s reasonable possibility factor.” We conclude there is no Hamil- (See influenced the verdict. assertedly penalty improper argument ton, 1184-1185; Brown 456 [250 Cal.Rptr. the 1977 Crime Counting” G. “Double jury by arguing misled the asserts the prosecutor
Defendant in the be to show aggravation of the 1977 crime could used prior evidence 190.3, crimes (a) (circumstances under section factor crime present violent criminal (b) as under factor (prior found at the as well guilt phase), *63 Miranda, 57, Defendant con 105-106.) 44 Cal.3d acts) supra, v. (People jury left the with little or no discretion counting” tends that such “double its determination. penalty only that factor evidence (b) pertains we with defendant
Although agree convict- other than the crimes for which defendant was activity to criminal cannot, record, on this conclude that ed in the we present proceeding, guilt crime came jury phase understood that the 1977 within prior to jury told the that it was judge crimes. Neither the nor prosecutor crime, and we are as a circumstance of the present consider the crime past that the was so misinformed. by argument jury defendant’s unpersuaded Miranda, 44 at 107.) Cal.3d (See supra, p.
H. as Factor Age Aggravating defend that the told the prosecutor
Defendant also notes an factor because “this is a aggravating ant’s should be considered age (56) adult, should somebody mature ladies and who gentlemen, responsible, mature and who thinks in a mature and Somebody know better. who is “of itself” be We have stated that should not age fashion.” meaningful 775; People an 43 Cal.3d at (Ghent, supra, p. considered factor. aggravating 730, 667, 113].) 42 726 P.2d Rodriguez Cal.Rptr. v. Cal.3d 798 (1986) [230 however, statutory sentencing held that “in Recently, we have [section matter metonym any age-related used as a for 190.3,] (i) [age] factor is morality might or experience the evidence or common suggested
539 Accordingly, may argue counsel reasonably penalty. inform the choice 45 Lucky v. every (People (1988) case.” any age-related such inference 259, 1, 1052].) Cal.Rptr. Cal.3d more placing review of the reveals the prosecutor empha- Our record on than the lack of a maturity sophistication, mitigat- sis on defendant’s or find no factor. we error. ing Accordingly,
I. Counsel’s Competence to,
Defense an object request counsel failed or to admonition many regarding, (See claims of “error.” Peo foregoing prosecutorial Green v. ple Cal.3d P.2d object Defendant now counsel’s asserts trial failure to the argument held, however, indicated trial counsel’s We incompetence. have previously incompetence. that mere failure to object argument seldom establishes counsel’s Frierson, ent, 772; (Gh supra, Here, find the above instances of prosecutorial we argu ment, error, to the extent they involved neither establish unreasonable counsel, on the trial performance they nor part do establish prejudice. reject We thus the claim of ineffective trial counsel. 190.4, Adequacy (e),
J. Hearing Section Subdivision death, Following the verdict of the court heard defendant’s automatic 190.4, motion for modification of the verdict. Section subdivision (e), pro “In evidence, vides: ruling application, shall review the judge consider, account, take into be guided by aggravating and mitigat *64 ing circumstances in referred to section 190.3.” record The makes clear that recognized the court and fulfilled its to make statutory duty an independent determination whether jury’s the verdicts findings contrary and were to the Nonetheless, law or evidence presented. defendant the attacks ruling court’s on the erroneously bases that court: (i) considered defend age as ant’s and aggravating, (ii) improperly considered re probation County from the port Orange probation The latter department. in report cluded information taken police from files (e.g., by statements detectives working on the case that defendant had killed other probably young girls), Gathers, 805, “victim (See, and impact” e.g., statements. supra, 490 U.S. _ Booth, 876, 496, L.Ed.2d 878]; 482 502 supra, U.S. L.Ed.2d [104 [96 440, 448].) record,
Read the context of the entire we conclude the court’s refer- ence to defendant’s age permissible maturity was a comment defendant’s sophistication. Lucky, and (See, 45 Cal.3d at e.g., supra, p. 302.) In addi-
540 tion, that his was not although probation report we with defendant agree relevant to the court’s determination of defendant’s for application 190.4, any find (e), modification of under section subdivision we penalty Williams, in this case. v. (See People supra, error nonprejudicial Adcox, 1268, 47 Cal. at 274: 1329.) recently page As we stated 3d supra, contrary, evidence in the record to the we must assume that the “absent by ruling court was not influenced on the improperly report applica- tion.” merely to the the court stated for the referring probation report,
record: “Let the record reflect the court has received and considered the The Orange County from the probation report probation department.” whole, court did not indicate that it relied on either the as a or on report any evidence the effect of the murders on the victims’ families. regarding Thus, we conclude the court’s reference to the here fleeting probation report did not demonstrate influence exercised the court in its improper fact, decision. In the record reveals that the court reviewed evidence 190.3, statutory within the framework of the factors set forth in section made its own that the circumstances out- independent findings aggravating weighed mitigating (See Lang ones this case. also v. 49 (1989) 991, 386, Cal.3d 1044 782 P.2d court’s consider- Cal.Rptr. [264 627] [trial ation of victim’s evidence not affect impact ruling did mo- denying Adcox, 207, dification]; Cal.3d
K. Sentence Disproportionality of
Defendant claims erroneously court failed to instruct the jury that grant immunity to Hernandez could be considered jury as a reason for not death. He also asserts that because Her imposing nandez harbored an intent to kill when he acted as an defend accomplice, arbitrary ant’s sentence is under the Amend disproportionate Eighth I, ment and article section 17 of the California Constitution. (People Dillon In re Cal.Rptr. 697]; Lynch (1972) Cal.3d 423-429 P.2d *65 We find these contentions meritless. Defendant was found of the guilty murders of and Jones. The Kreuger evidence indicated that Hernandez was murders, defendant, not an active in the unlike who was also the participant initiator of acts. In light of the differences their circumstances and involvement, defendant cannot assert that his punishment dispropor- Howard, tionate to his individual 44 at culpability. (See Cal.3d supra, pp. Nor can 444-445.) defendant show his sentence otherwise violates the Dil- Allen, 1222, lon/Lynch (See 1285-1286.) 42 Cal.3d requirements. supra,
541 Law Penalty 1978 Death Constitutionality L. of violates the Eighth
Defendant the 1978 death law penalty contends it arbitrary of because sentencing procedures Amendment’s proscription arbitrary ensure an death provide safeguards against fails adequate is various other sentence. He also the 1978 law unconstitutional argues federal claims in We have each of his rejected considered respects. 461; v. People Rodriguez, 46 Cal.3d at opinions. (Brown, supra, p. recent 730, 42 Cal.3d 777-779.) supra,
M. Cumulative Errors Effect of
Defendant that the cumulative effect of the penalty phase asserts To the requires errors reversal extent that we have found judgment. errors, however, we they do not believe that raise a realistic possibility the jury have reached a more favorable had such might result error or (Brown, errors not occurred. 46 Cal.3d at p.
The judgment of death is affirmed.
Panelli, J., J., J., Kennard, J.,* Eagleson, (Harry W.), Low con curred.
MOSK, J. record, I concur After judgment. I can reviewing no find error reversal. requiring
I write separately clearly to state Iwhat believe to be the proper method analysis of for a appeal claim that the trial court erred denying a motion for of venue change under Penal Code 1033 (hereafter section sec- 1033). tion Our have at been opinions times somewhat ambiguous on this point, appearing to conflate the logically separate questions whether error and, so, was committed if whether reversal is called for. v. (See, e.g., People 1112, 473, Williams 48 (1989) 1125-1126 774 Cal.Rptr. P.2d [259 207, v. 146];People 55, Adcox (1988) Cal.3d Cal.Rptr. 763 P.2d [253 906]; People Balderas (1985) Cal.3d Cal.Rptr. 480];
P.2d v. Harris 948-949 view, opn.).) my (plur. issue should be addressed 240] as follows.
Section 1033 in relevant provides “the court shall part order a venue,” defendant, change motion of the county another when it “[o]n * Justice, District, Five, Presiding Appeal, Appellate assigned by Court First Division Chairperson of the Judicial Council. *66 that there is a reasonable likelihood that a fair and trial appears impartial (Id., be had in the county.” (a).) cannot subd.
When a denying change-of- defendant claims on appeal ruling erroneous, obviously, venue motion was the first concerns whether question, was in fact such. The relevant a reasonable ruling is: Was there inquiry a fair county? likelihood that trial could not be had in the This impartial course, inquiry, focuses on the itself and the record on which it ruling matters, was made. It does not look to such as the voir dire of subsequent prospective jurors.
The second question—which must be resolved if error is found—con- cerns whether reversal The is relevant then becomes: Is required. inquiry there a reasonable that a fair was likelihood trial not in impartial fact county? may had This consider inquiry pertinent matters subsequent Only to the if the answer is challenged ruling. affirmative must reversal be ordered. case, I this with the that the agree majority court’s denial of defend- erroneous,
ant’s motion for of venue was not change certainly and was not I reversible. also with them that no agree other error reversal requiring I concur in appears. Accordingly, the judgment.
Broussard, J., concurred. 21, 1990, for a Appellant’s petition was denied June and the rehearing opinion modified to read as above. printed asserts destruction notes his examine trial. We disagree. witnesses who had at appeared