People v. FlinnerPeople v. Flinner
A jury convicted defendant Michael William Flinner of the first degree murder of Tamra Keck and found true financial-gain and lying-in-wait special-circumstance allegations. (
This appeal is automatic. (
A. Guilt Phase
The trial evidence showed that on June 11, 2000, Flinner called his fiancée, Tamra Keck, while she was out shopping. He directed her to meet his former employee, Haron Ontiveros (also known as Juan de la Torre), at a local gas station so that she could help jump start Ontiveros‘s car. Keck picked Ontiveros up from the gas station and drove to a nearby cul-de-sac where Ontiveros‘s car was parked. As Keck was propping the hood of her car open, Ontiveros approached her from behind and shot her in the back of the head, killing her.
1. Prosecution Evidence
Flinner met Keck in 1999. At the time, Keck was 18 years old and had just started her senior year of high school. Flinner was 31 or 32 years old and was operating a landscaping business after being paroled from prison earlier that year. Flinner and Keck developed a romantic relationship. Keck moved into Flinner‘s apartment in Alpine, California, and the two made plans to marry.
On December 29, 1999, Flinner and Keck met with an Allstate Insurance agent and applied for a $500,000 term life insurance policy for Keck, naming Flinner as the primary beneficiary. At the meeting, Flinner introduced Keck as his fiancée and represented that she was an employee of his landscaping business with an annual income of $30,000 per year. Flinner explained to the Allstate agent that they were taking out the life insurance policy because Keck was an important part of his landscaping business and that he would suffer financially were something to happen to her. This explanation was false. Keck was not, in fact, a regular employee
The prosecution sought to show that Flinner‘s business was suffering financially in the months leading up to the murder and that he accumulated an increasing amount of debt. After Keck‘s death, Flinner attempted to collect on the insurance policy, attempted to make large purchases on credit with the promise of payment out of his forthcoming insurance proceeds, and continued even in custody to tell fellow inmates that he expected to receive a substantial payout plus interest from the life insurance policy.
The prosecution also presented evidence that Flinner‘s relationship with Keck was strained. Flinner took another teenage girl, Tiffany Faye, out for meals several times and told her that although Keck thought they were going to get married, he could get rid of Keck and date Faye. In December 1999, while Faye was visiting Flinner and Keck at their apartment, Flinner proposed a “threesome,” which prompted Faye to break off her relationship with Flinner. Various witnesses testified that Flinner treated Keck poorly, said Keck was just after his money, and referred to her by derogatory names. Two days before the murder, Keck called her mother, crying, to report the wedding was going to be postponed.
Around the time Flinner and Keck took out the life insurance policy, Flinner began asking associates what it would
A few days before the murder, Flinner obtained the car that codefendant Haron Ontiveros, one of Flinner‘s landscaping employees, would use on the day of the murder.1 Flinner visited an auto dealership that he had done business with before and signed a borrower agreement for a small white Nissan NX car. Amir Bahador, an employee at the auto dealership, testified that when Flinner came to pick up the Nissan NX, he was accompanied by a “Hispanic gentleman, kind of short, kind of stocky,” though Bahador could not say for sure that it was Ontiveros. Flinner told Bahador that he was getting the car for his employee, the man who was with him at the dealership.
On the morning of the murder, at about 10:45 a.m., video surveillance showed Flinner driving his white Ford pickup to the Ultramar gas station in Alpine. Flinner was also placed at that location through his cell phone records and the testimony of Phillip Finch, who drove by Flinner while he was pulled over on the road near the gas station to make a call. The clerk at a nearby Shell station testified that around 10:30 a.m. Flinner purchased gas and milk and asked the clerk to hurry ringing up the purchase because he “was late to meet his friend down the street.”
At about the same time, video surveillance showed the white Nissan NX driving into the Ultramar gas station. Shortly thereafter, video showed both Flinner‘s Ford pickup and Ontiveros‘s Nissan NX leaving the Ultramar station and heading toward a cul-de-sac down the street. Flinner later admitted to detectives that he entered the cul-de-sac sometime between 10:00 a.m. and 11:00 a.m. on the morning of the murder. Suzanne Scanlan, who volunteered at a veterans’ organization that had a view of the cul-de-sac, testified that in this timeframe she saw two white cars parked next to each other in the cul-de-sac. Video footage picked up the two white cars exiting the cul-de-sac road about 15 minutes after they entered.
Flinner arrived at his parents’ house at about 11:30 a.m. on the day of the murder. Shortly thereafter, at around 11:45 a.m., Keck and Flinner left Flinner‘s parents’ house separately — Flinner to go shopping and to a car wash with his son and Keck to go to Walmart and Vons. Walmart‘s video surveillance showed Keck entering and shopping in the store.
In the meantime, surveillance video showed the white Nissan NX driving back into the cul-de-sac at 12:02 p.m. A man left the cul-de-sac by foot at 12:08 p.m. and headed toward the Ultramar gas station, where he arrived and waited in front of the station. At 12:32 p.m., video showed Keck‘s white Mustang coming into the Ultramar station and pulling up to where the man was waiting (although he was no longer visible in the surveillance video), and it then showed the Mustang leaving the station and heading toward the cul-de-sac. About three minutes after the Mustang entered the cul-de-sac, video showed the white Nissan NX speeding out of it.2
Shortly after the murder, a motorist discovered Keck‘s body and called the police. Keck‘s body was found lying in front of her car. The car‘s engine was running, the hood was ajar and the passenger side door open. Keck had been shot once in the back of the head. This and other circumstantial evidence indicated that, once she had parked in the cul-de-sac, Keck left her car running and exited the vehicle. While she was opening
Flinner attempted to cast the responsibility for Keck‘s murder on others. In the days before the murder, Flinner had told two sheriff‘s deputies that one of his landscaping customers was “after him” and had tried to run him off the road, though he dismissed the deputies’ suggestion that Flinner file a police report. During an interview with lead detective Rick Scully on the night of the murder, Flinner denied being near the cul-de-sac that day and said he had never been to the cul-de-sac. He again brought up the disgruntled customer and said that one of the customer‘s associates had recently threatened his life and initiated a physical altercation with him.
Later that night, the police searched Flinner and Keck‘s apartment. During the search, Detective Scully told Flinner that in his experience people who are found in isolated areas, as Keck was, are usually there for a drug deal or to meet a love interest. At the time, Flinner rejected this theory of Keck‘s death and police found no evidence suggesting Keck was using drugs. But days later, Flinner contacted police to say he and his mother had found drugs and syringes while going through Keck‘s possessions, and they turned them over to Detective Scully. Within a week of the shooting, Flinner also reported he had received threatening phone calls from a Hispanic man with whom he had been in an altercation a decade before.
Later in the investigation, Flinner attempted to frame or cast blame for Keck‘s murder on various employees and business associates. Flinner invited employee Martin Baker to dinner at his house about a month after the murder and spiked Baker‘s chili with Xanax. While Baker was passed out on Flinner‘s
Next, Flinner apparently tried to frame employee Charles Cahoon by planting a sock that contained bullets matching the bullet that killed Keck in Cahoon‘s car. DNA on the sock matched Keck‘s and Flinner‘s, but not Cahoon‘s. An anonymous letter accusing Cahoon of murder was also placed on a police car.
Flinner also told detectives that his friend and business associate Rick Host said on his deathbed that Keck was killed due to her knowledge of a casino software scheme Host was involved with that also involved the North Korean government and mobsters in the United States.
Finally, while in custody, Flinner claimed that his codefendant Ontiveros killed Keck after having an affair with her and that Ontiveros had put out a contract on Flinner‘s life. Flinner also attempted to make it look like he was being targeted, planting bullets with his and Keck‘s names on them on his parents’ property.
Flinner also made several attempts to derail his trial. Flinner attempted to taint the witnesses in his case by mailing them letters containing information deemed inadmissible by the trial court so that the witnesses’ testimony would be rendered suspect and impeachable. Flinner asked a fellow jail inmate, Gregory Sherman, to use his library privileges to look up the addresses of witnesses, detectives, the prosecutor, and the trial judge in his case. Flinner told Sherman that he intended to sabotage his trial by sending witnesses letters with confidential
Flinner had a backup plan to sabotage his trial: He told Sherman that he planned to ensure that only property owners with unique names were impaneled as jurors so that he could easily look up their addresses through property records searches and send them similar letters with inadmissible evidence. Flinner said he would frame the prosecutor for sending this set of letters by using the prosecutor‘s address as the return address.
Flinner also made various threats intended to obstruct the prosecution of his case. He asked fellow inmate James Theodorelos and another inmate to kill his codefendant Ontiveros. When these inmates began cooperating with the prosecution, Flinner tried to intimidate them or pay them off. Finally, Flinner tried to intimidate the prosecutor by sending letters conveying threats against the prosecutor to Flinner‘s family and other inmates, knowing the letters were being photocopied and read by the authorities.
Flinner made a number of statements after Keck‘s death that suggested he was complicit in her murder. Robert Pittman, a former employee of Flinner, testified that the morning after
A few days after the murder, Flinner went out to dinner and drinks with his friend Gilberto Lopez and Lopez‘s girlfriend Marie Locke. According to Lopez, Flinner got “tipsy” at the meal and became upset about Keck‘s death, stating either “I shouldn‘t have killed her” or “I should not have had her killed.” On another occasion after Keck‘s murder, and after Flinner had taken several sleeping pills, Flinner again said to Lopez, “I shouldn‘t have killed her.” In custody, Flinner told fellow inmate Theodorelos that Keck‘s murder stemmed from an ill-fated business transaction with “some overseas Asians.” But Flinner subsequently told Theodorelos that he was sure to make credit card purchases at the time of Keck‘s murder to create an alibi for himself and that he had bullets planted on his parents’ property and an anonymous note accusing Cahoon of killing Keck left on a police car.
2. Defense Evidence
The defense argument was that Flinner had nothing to do with Keck‘s murder. Flinner presented evidence that he was loving and kind toward Keck. He also put on evidence intended to bolster several exculpatory theories Flinner had raised during the investigation and before trial. According to Donald Landon, a business partner of Flinner‘s friend Rick Host, Host was at the same Walmart as Keck the morning she was killed. Landon also
Flinner sought to discredit some of the People‘s evidence. A forensic accountant testified that while the prosecution had calculated Flinner‘s debt at the time of the murder to be $194,000, the accountant calculated it to be about $94,000. A custodian of records for a local news channel produced recordings of news broadcasts about the murder and testified that the channel publicized that Keck was shot in the head the morning after the murder, which could have explained how Flinner was able to report this information to Pittman on the same day; on cross-examination, however, the witness clarified that at no time did the broadcasts say that Keck was shot in the back of the head, as Pittman had testified Flinner told him. Prison inmate James Baggett testified that inmate Theodorelos said he intended to fabricate the statements from Flinner about the murder. Flinner‘s DNA expert challenged the prosecution expert‘s conclusion that DNA found on the sock in Cahoon‘s car belonged to Flinner. A defense investigator testified that Martin Baker, one of the employees Flinner had tried to frame for Keck‘s murder, had been prescribed Xanax after receiving treatment at the county mental health hospital, and defense counsel elicited Baker‘s testimony on cross-examination that at the time of trial Baker was living in an assisted care facility and taking several antipsychotic medications. A defense investigator testified that after reviewing of the gas station
B. Penalty Phase
The prosecution introduced the testimony of Keck‘s family members, who described her early life and the impact that losing Keck had on them. The prosecution also introduced the testimony of four women, including Flinner‘s former wife, who described being sexually assaulted by Flinner after he drugged them, or other forms of physical and emotional abuse. Finally, the prosecution introduced evidence of Flinner‘s prior felony convictions for forgery, possession of stolen property, rape by a foreign object, three counts of grand theft, and failure to appear while on bail.
The defense called Flinner‘s mother and father, who testified about Flinner‘s troubled childhood, including hyperactivity, various head injuries, behavioral problems, and psychiatric hospital admissions. The defense introduced expert psychiatric evidence that Flinner suffered brain dysfunction from early childhood, possibly exacerbated by the use of illegal drugs and head injuries, which contributed to his criminal and antisocial behaviors. Prison officers testified that Flinner had previously attempted suicide after he was returned to prison. A correctional consultant testified about the security measures that would be in place if Flinner was sentenced to life without the possibility of parole. Flinner‘s friend and a fellow inmate testified about Flinner‘s efforts to help them during previous emergency situations. Flinner‘s son testified that he loved his father, who had kept in touch since he was arrested.
A. Pretrial Issues
1. Pretrial Detention
Flinner raises four claims of error stemming from Flinner‘s pretrial relocation from a downtown San Diego jail facility to a more remote jail facility in Vista, which is in the northern part of San Diego County. We conclude these claims lack merit.
a. Background
Flinner was detained in San Diego County facilities while awaiting trial. In January 2002, defense counsel requested that Flinner remain in the downtown jail and not be moved to the jail in Vista. The court entered a “request[],” but not an order, to that effect.
As explained in greater detail above, while in jail Flinner sought to disrupt his upcoming trial. With the help of Gregory Sherman, a fellow jail inmate with library privileges, Flinner obtained personal information about the prosecutor and trial judge, including their home addresses. Sherman later gave his account of their activities to the San Diego County District Attorney‘s Office. The information was passed to the San Diego County Sheriff‘s Department, as well as the trial judge, Allan J. Preckel.
At a January 17, 2003, ex parte hearing, the prosecutor discussed this information with Judge Preckel. Immediately afterward, Judge Preckel held a security meeting with sheriff‘s department personnel, the supervising judge of the courthouse, and the prosecutor, but not defense counsel. The supervising judge requested Flinner be moved to a more secure housing unit to prevent him from gathering further information and
Later in January 2003, the sheriff transferred Flinner to Vista and placed him in administrative segregation, restricting his visitation and telephone privileges. At a conference with all parties and counsel on February 28, 2003, the trial court summarized Flinner‘s custodial status as related by the sheriff‘s office: Flinner was housed in an isolation cell and allowed no contact with other inmates; he was permitted three 20-minute telephone calls per week to Sandra Resnick, one of his two attorneys, and 45-minute personal visits with Resnick or John Mitchell, his other attorney, if they gave a day‘s notice. The court added that Flinner was permitted visits with the defense investigator. The court emphasized that it had not ordered these restrictions and was generally not inclined to interfere with the sheriff‘s decisions on jail operations. Attorney Resnick complained that the distance to Vista and the limits on communications would slow down the defense team‘s preparation for trial; in particular, Resnick expressed frustration at the inability of defense team members other than herself to arrange telephone conversations with Flinner. In response, the court stated it was willing to consider making orders to allow increased contact “as they are presented to me.”
After the February 28 conference, the trial court issued an order providing information Sherman had supplied to Flinner‘s attorneys but prohibiting them from revealing the information to Flinner or other members of the defense team. On March 11,
Attorney Mitchell also elaborated on the difficulties with the Vista location and the telephone restrictions. Driving to and from Vista meant each visit took half a day. In order to prepare for trial and maintain their relationship with a sometimes difficult client, Mitchell and Resnick each tried to visit Flinner once a week, while their investigator did so twice a week. The telephone restrictions prevented Mitchell or the investigator from talking to Flinner by phone. When Mitchell visited Flinner, jail officers searched his briefcase.
In response, the trial court repeated that it was not inclined to second-guess the sheriff‘s department as to the appropriate housing for Flinner or, at least “here and now,” as to telephone privileges. Attorney Mitchell suggested that, given
On March 14, 2003, after an additional brief ex parte with Flinner‘s attorneys, the trial court conferred with counsel for all parties, with neither defendant present. The court explained that with Flinner now securely housed at Vista and a mail cover and telephone restrictions in place, the court tentatively planned to lift its previous prohibition on defense counsel discussing Sherman‘s disclosure with Flinner and members of the defense team, with the proviso that the written materials would still not be provided to Flinner. The court noted that its previous order would remain in place for a reasonable period so that Sherman could be provided whatever additional security was deemed necessary.
Asked for comment, Attorney Mitchell said that the court‘s proposal to lift the prohibition on talking to Flinner about Sherman‘s disclosure “makes good sense.” He expressed the hope that this “resolution” would allow defense counsel to “finesse” their previous concealments from their client and “move on in terms of the attorney/client relationship. We‘re going to be together for a while in this matter.” As to Flinner‘s housing and telephone restrictions, Mitchell “assume[d]” that the defense was “stuck with that,” that as the court had said earlier, “You run the courtroom and they run the jail, and you‘re not going to get involved unless it fouls up your courtroom.” Mitchell went on to observe that a time might come when the defense needed greater access to Flinner, for example to have an
The prosecutor raised no objection to the court‘s tentative order but requested a few days to alert Sherman‘s current confinement facility and allow them to take necessary security measures. The court set a further conference for March 19, five days later. At that hearing, the prosecutor confirmed necessary measures had been taken, and the court issued the order.
b. Discussion
i. Interference with Attorney-Client Relationship
Flinner contends that the trial court, prosecutor, and sheriff interfered with his attorney-client relationship by moving him to the Vista detention facility and restricting his telephone and visiting privileges, in violation of his constitutional rights to due process and the assistance of counsel. Flinner maintains the imposition of these restrictions “greatly interfered with the preparation of [his] defense by requiring a time-consuming 82 mile round trip for each visit, barring visits from members of the defense team other than appointed counsel, and sharply limiting the time counsel had to confer with their client.” The trial judge, Flinner argues, also violated his constitutional rights by permitting the sheriff to impose these restrictions without a contested evidentiary hearing to determine the credibility of Sherman‘s disclosure, and by ordering defense counsel to “lie” to their client by concealing the disclosure from him.
At the threshold, we agree with the Attorney General that these claims were forfeited by Flinner‘s failure to raise them below. Although defense counsel complained of the
Nor do the claims have merit. Visiting Flinner at the Vista facility was undoubtedly inconvenient for the defense team, but nothing in the record suggests Flinner‘s housing or telephone restrictions prevented counsel from effectively communicating with Flinner in order to prepare for trial. The trial court, at defense request, permitted increased communication with members of the defense team (see fn. 3, ante) and the court said nothing to preclude further accommodations as needed “on a case by case basis,” as Attorney Mitchell put it. Trial counsel‘s
Had Flinner requested a hearing on his placement in administrative segregation, and done so in an appropriate forum, he might have been entitled to one. (See In re Davis (1979) 25 Cal.3d 384, 390–391 [where state prison regulations set out “specific circumstances under which administrative segregation may be imposed,” ” ‘the inmate has an interest, conferred by statewide regulation and protected by due process, in not being confined in maximum security segregation unless he is found, for clearly documented reasons, to come within the standard set by the rules’ “].) But without any such request at the time, and with no indication in the record that Flinner‘s housing placement deprived him of any trial right or prejudiced the result of his trial, he is not entitled to a reversal on this ground.
ii. Violation of Right to be Present at All Critical Stages of Proceedings
Flinner next asserts that the trial court violated his right to be present all critical stages of proceedings, pointing to the ex parte discussions with jail personnel and the in camera discussions with the attorneys. Contrary to the Attorney General‘s argument, Flinner had no effective opportunity to object to proceedings at which he was not present, and therefore did not forfeit his due process claim. The claim fails on the
A defendant has the constitutional right to be personally present in court “where necessary to protect the defendant‘s opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding.” (People v. Carasi (2008) 44 Cal.4th 1263, 1299.) It does not extend to “in camera discussions on matters bearing no reasonable, substantial relation to the defense of the charge.” (Ibid.) And while ex parte proceedings are generally disfavored, “the trial court retains discretion to conduct in camera, ex parte proceedings to protect an overriding interest that favors confidentiality.” (Ibid.) The same standard for requiring the defendant‘s personal presence applies under California law, and to prevail on such a claim under federal or state law the defendant bears the burden of showing “that his absence prejudiced his case or denied him a fair trial.” (People v. Bradford (1997) 15 Cal.4th 1229, 1357; accord, People v. Blacksher (2011) 52 Cal.4th 769, 799.)
The ex parte proceedings in this case were occasioned by the revelations of a jailhouse informant, Sherman, that while in jail Flinner had been engaging in investigative activities aimed at disrupting his upcoming trial, including obtaining personal information about the prosecutor and trial judge. The trial court acted within its discretion in excluding Flinner, and initially his attorneys, from these proceedings until Flinner had been placed in a more secure housing unit where his communication with other inmates could be controlled. Most important, Flinner fails to demonstrate that his absence from the hearings on his
iii. Prosecutorial Bias
Flinner argues that the prosecutor was biased against him after the prosecutor learned of Flinner‘s death threats against him. Flinner asserts that this bias is manifest in the decision to have Flinner transferred to the Vista jail, a decision for which, he asserts, the prosecutor was at least in part responsible. During a February 28, 2003, status conference, Defense Attorney Resnick told the court that a sheriff‘s captain at the Vista facility said the security of Flinner‘s confinement was being monitored by Deputy District Attorney Paul Morley, a division chief within the district attorney‘s office. Based on that apparent involvement by the prosecutor‘s office, Flinner asserts the trial prosecutor, Deputy District Attorney Rick Clabby, misrepresented his influence in assuring defense counsel, “I have absolutely no control over what the jail does.”
Flinner forfeited this claim by failing to raise it below. Once the information provided by Sherman became available to defense counsel, any claim of prosecutorial bias could and should have been raised by a motion under
In any event, nothing in the record indicates that Flinner‘s threats and insults aimed at Prosecutor Clabby created a bias that threatened the fairness of the proceedings. If the existence of threats were sufficient by itself to require disqualification, a disruptive scheme like Flinner‘s could easily succeed. “[W]ere it possible for a defendant charged with serious crimes to disqualify the prosecutors trying the case from proceeding with the prosecution by threatening them, willful defendants would be handed a powerful weapon to disrupt the course of justice.” (Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 204.) The fact that the district attorney‘s office was monitoring Flinner‘s housing status and communications restrictions does not show that Clabby or any other member of the office acted improperly. Having learned from Sherman of Flinner‘s plans to disrupt the trial, prosecutors had a legitimate interest in seeing that security measures were taken to prevent those plans from being executed.
iv. Judicial Bias
Flinner also argues Judge Preckel was biased after he was warned that Flinner had made a threat against him. Flinner infers bias from Judge Preckel‘s “refus[al] to become involved in the unconstitutional restrictions the prosecutor and jailer had arranged, which improperly limited appellant‘s access to his counsel.” Flinner argues it was therefore a due process violation for Judge Preckel to preside over his trial.
We also reject Flinner‘s due process claim on its merits. A due process claim of this type requires a showing that “under the ‘extreme facts’ of the case, ‘the probability of actual bias rises to an unconstitutional level.’ ” (People v. Freeman (2010) 47 Cal.4th 993, 1001.) Here there are no extreme facts and no probability of actual bias. Although Sherman had reported that Flinner raised the possibility of trying to kill his prosecutor and trial judge, there was no indication of imminent or severe
As for the court‘s deference to the sheriff‘s department on details of Flinner‘s housing and communications restrictions, such deference creates no inference of fear or bias. It is as consistent, or more so, with Judge Preckel‘s repeated explanation that he respected the lines between judicial and law enforcement authority and expertise, and therefore would no more tell the sheriff how to run the jail than he would expect that officer to tell him how to run his courtroom.
Nor, finally, did Judge Preckel display indifference to Flinner‘s rights and interests. To the contrary, he showed a willingness to make and change orders as defense counsel convinced him was necessary for the attorney-client relationship and the defense team‘s trial preparation. No probability of unconstitutional bias appears from the record.
2. Denial of Flinner‘s Severance Motions
Flinner contends that he was denied the right to due process and a fair trial when the trial court declined to fully sever his case from that of his codefendant Ontiveros and instead empaneled two separate juries for a joint trial.
”
Before trial, the prosecution conceded that dual juries were appropriate but contended that the cases should proceed in a single trial. Flinner‘s counsel moved to sever the cases completely on the ground that Flinner and Ontiveros intended to present antagonistic defenses. Flinner planned to argue that he was not involved at all in Keck‘s killing, while Ontiveros intended to show that Flinner was the mastermind of the murder and manipulated Ontiveros into participating. As we
Flinner posits that the conflict here rises beyond mere antagonism; he claims that the two positions are “completely irreconcilable” because “[i]f the jury believed Ontiveros, it would have to convict [Flinner].” We have explained that “antagonistic defenses require severance only when ’ ” ‘the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ ” ’ [Citation.] ‘If the moving party‘s guilt can be established by sufficient independent evidence, “it is not the conflict alone that demonstrates . . . guilt,” and severance is not required.’ ” (Daveggio, supra, 4 Cal.5th at pp. 819–820.)
We made the statements above in the context of a joint trial before a single jury. Whether antagonistic defenses ever require severance in the context of separately empaneled juries is unclear, but we need not decide that general question here. Flinner cannot show, in any event, that in this case the conflict between the two defenses alone established guilt, given the overwhelming independent evidence against him, including the video surveillance evidence showing Flinner and Ontiveros meeting shortly before the murder near the scene of the crime and the inculpatory statements Flinner made to Lopez. The nature of Flinner‘s and Ontiveros‘s defenses would not have compelled severance even in a single-jury trial. A fortiori, they
Nor did the existence of Ontiveros‘s incriminating confession require the trial court to grant Flinner‘s severance motion. The existence of an ” ’ “incriminating confession” ’ ” is one of many “[f]actors that may bear on a trial court‘s decision to order separate trials.” (People v. Gomez (2018) 6 Cal.5th 243, 274.) But it is settled that a trial court may resolve admissibility problems posed by a codefendant‘s confession by empaneling dual juries at a single trial, as the court did here, instead of ordering separate trials. (See People v. Anderson (2018) 5 Cal.5th 372, 387; Thompson, supra, 1 Cal.5th at p. 1085 [“[W]e have upheld the use of separate juries for jointly tried defendants, as an alternative to outright severance’ “].)
Flinner argues that the single trial raised issues under Bruton v. United States (1968) 391 U.S. 123 (Bruton) and
Flinner moved to sever his case again midtrial after Ontiveros‘s cross-examination of the state‘s witness Charles Cahoon. Defense counsel argued that Cahoon‘s testimony as elicited by Ontiveros‘s counsel was “not quite character assassination, but . . . awful close to it.” The trial court denied the motion. Cahoon testified that he was afraid of Flinner, that Flinner was manipulative, and that Cahoon was not involved in the murder, contrary to the allegations in an anonymous letter left on a police sergeant‘s windshield. Defense counsel appeared most concerned with the trial court‘s admission, over Flinner‘s objection, of Cahoon‘s statement that Flinner “is a very bad man and he should be stopped” and that “he doesn‘t deserve to even be with us here on Earth,” given in response to a question by
We also reject Flinner‘s claim that reversal is required because the trial court‘s failure to sever allowed Ontiveros to act as a “second prosecutor.” As we have previously explained in rejecting a similar argument, just “because the prosecution‘s case will be stronger if defendants are tried together, or that one defense undermines another, does not render a joint trial unfair.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379.)
Flinner argues that Ontiveros was permitted to introduce evidence damaging to his defense that the prosecution did not offer, but he does not establish that the prosecution would have been unable to offer the same evidence against him. Flinner‘s argument focuses in particular on the admission of hearsay statements that he made to Gilberto Lopez that Flinner “shouldn‘t have killed her” or “should not have had her killed,” referring to Keck. Although Flinner complains that Ontiveros and not the prosecution called Lopez and that Ontiveros‘s counsel did not ask Lopez any question about Ontiveros, the fact remains that the prosecution could have offered the very same evidence against Flinner, regardless of whether the two defendants were jointly tried.
Flinner also points to a number of instances in the record where he claims that Ontiveros was permitted to ask inappropriate questions. In some of these instances, Flinner simply misreads the record. He suggests that Ontiveros‘s counsel was permitted to present damaging “innuendo” evidence against Flinner when Ontiveros‘s counsel asked prosecution witness Robert Pittman whether he had ever heard that Flinner‘s first wife “had died mysteriously.” In fact, it was
Flinner argues that Ontiveros‘s defense strategy reduced the People‘s burden to prove Flinner‘s guilt beyond a reasonable doubt, but we are not persuaded. “[T]his was not a case in which only one defendant could be guilty. The prosecution did not charge both and leave it to the defendants to convince the jury that the other was that person. Here the prosecution theory was that both defendants participated in, and were guilty of, the murder.” (People v. Cummings (1993) 4 Cal.4th 1233, 1287.) The prosecution put on substantial evidence of Flinner‘s guilt, including evidence that Flinner met with Ontiveros the day of
Finally, Flinner argues that the trial court‘s failure to sever his case produced gross unfairness because Ontiveros used the codefendants’ single peremptory challenge to dismiss the original judge, ostensibly preventing Flinner from dismissing Judge Preckel for alleged bias. As we have explained (pt. II.A.1.b.iv., ante), Ontiveros‘s use of the single statutory peremptory challenge did not prevent the defense from raising a nonstatutory motion for recusal. Thus, any prejudice flowed from Flinner‘s failure to object and not from the trial court‘s failure to order severance. And, in any event, as we have explained, Flinner‘s judicial bias claim fails on the merits; Judge Preckel‘s presiding did not render Flinner‘s trial unfair.
B. Guilt Phase Issues
1. Admissibility of Consciousness of Guilt and Witness Fear Evidence
Flinner asserts that the trial court erred in admitting evidence that he obtained or planned to obtain the home addresses of persons connected to the trial, that he threatened the prosecutor, and that certain witnesses were afraid of or intimidated by him.
Under the Evidence Code, “[e]vidence must be relevant to be admissible. (
Flinner argues that the challenged evidence was irrelevant and unduly prejudicial in violation of
a. Flinner‘s Attempt To Obtain Addresses of Witnesses, Judge, Prosecutor, and Potential Jurors
Flinner first asserts that the trial court erred in admitting evidence that he obtained or planned to obtain the home addresses of various persons connected to his trial. Inmate Gregory Sherman, who was housed in the same area as Flinner at the county jail, was called as a prosecution witness. As noted above, Sherman had special privileges at the jail‘s law library — including access to unmonitored phone calls and the internet — because he represented himself pro se. He also had past experience tracking down people‘s addresses through public record searches. Sherman testified that after Flinner learned about his library privileges and skills, Flinner asked him for help in obtaining the addresses of prosecution witnesses, as well as the prosecutor, the judge, and the bailiff in his case.
Flinner explained that he intended to sabotage the trial by flooding the witness pool with letters containing confidential information about the case; he expected this tactic would preclude the witnesses from testifying. He planned to make it look like the letters came from one of the lead detectives in his case or his prior defense attorney, and he told Sherman that he
The prosecution also called Catherine McLarnan, who previously dated Flinner. She testified that after she visited Flinner in jail, he sent her a package containing a list of names and addresses of witnesses, a letter to send to those witnesses, and instructions on how to prepare the letters. Flinner asked her to type up the letter, wear latex gloves while preparing the letters and envelopes, and use the address of his former defense attorney as the return address. He explained that the letter included evidence deemed inadmissible by his trial judge and that, by sending it to all the witnesses, he would be able to ” ‘ruin the People‘s case.’ ” McLarnan testified that she did not follow Flinner‘s directions and instead turned the materials from Flinner over to his defense investigator.
Flinner argues that this evidence about his efforts to tamper with the witnesses and the jury was irrelevant and unduly prejudicial, but he does not point to a specific trial objection to this evidence. We thus agree with the Attorney
b. Flinner‘s Threats to the Prosecutor
Flinner also claims that the trial court erred in admitting portions of three letters he wrote expressing hatred toward the prosecutor and threats against the prosecutor or his family. The first is a letter that Flinner wrote to his mother, where he characterized the prosecutor as a “little maggot.” The letter goes on to state: “You‘d think a guy who achieved as he is could afford more than a $263,000 mortgage. [¶] . . . [¶] . . . His wife must be unquestionably ill-bred, empty, and misguided being with him, either that or one hideous, sordid shrew with a back harrier [sic] than his own. . . . I hope he dies young. The Freedom of Information Act is a great thing. . . . Looking forward to getting out of here and moving to Chula Vista so I can hang out with all of my great friends.”
The second letter is one that Flinner wrote to an inmate at another prison with whom Flinner corresponded frequently. It reads, in part: “Have you ever heard of the Freedom of Information Act? Why is it okay for him to know all about me, and yet I‘m not supposed to know anything about him? . . . One cannot be a true adversary without knowledge of his opponent and his critical position in life. . . . [¶] . . . [¶] . . . He has me locked away in solitary confinement so as not to be able to talk to the other convicts, et cetera. But I ride four busses [sic] when I go to court and can speak to whomever I wish. Many people know the things that I want them to know. One thing is for sure, this shit is a long way from over. [¶] Anyway, just thought I‘d
The third letter Flinner points to is one he sent to another inmate. The court admitted only part of this letter, which included the following statement: “By the way, the dicks [on top of each page of the letter] are for the D.A.‘s memory. He‘s [sic] trying to send him a subliminal message, actually a series of them. First, I will fuck him in front of his wife and kids when I‘m free.”
Before trial, the prosecution had sought to admit these and several other letters written by Flinner disparaging the prosecutor, illustrating Flinner‘s knowledge of personal details about the prosecutor like his home address and wife‘s name, disclosing such information to other inmates, and threatening harm to the prosecutor and his family. The prosecution argued that this evidence was relevant to showing Flinner‘s efforts to intimidate the prosecutor and thereby hinder the prosecution of the case. Although these letters were sent to third parties and not directly to the prosecutor, the prosecution asserted that Flinner knew his letters were being photocopied and monitored by the authorities. Defense counsel objected to the admission of the letters, arguing that Flinner was merely “venting his frustrations regarding his situation rather than attempting to hinder the prosecution of this case” and was just trying to “get[] a rise out of” the prosecutor. To the extent the letters were relevant, Flinner urged, they should be excluded as unduly prejudicial. The court agreed with the prosecution that these letters supported the inference that Flinner was trying to alter the course of the prosecution by intimidating the prosecutor, but it carefully walked through the letters and excluded many entirely and others in part under
Finally, Flinner suggests that it was unduly prejudicial to expose the jurors to both the violent threats Flinner made against the prosecutor and his attempts to collect the jurors’ own addresses. He reasons that the jurors might have inferred that he would retaliate against them or their families, too, and they would be prejudiced against him as a result. We conclude the trial court did not abuse its discretion by admitting either
c. Witnesses’ Fears of Flinner
Flinner argues that the trial court erred in admitting the testimony of three witnesses in which each expressed fear of Flinner. The Attorney General argues that, in each instance, the witness‘s fear of Flinner was relevant to the witness‘s credibility and therefore admissible. We consider each witness‘s testimony in turn.
Witness Charles Cahoon testified about Flinner‘s attempt to frame him for Keck‘s murder. The prosecution sought to show that Flinner was responsible for planting a sock with bullets inside it in Cahoon‘s car. Cahoon testified that he saw Flinner break into his apartment shortly before Cahoon found the sock in his car, and that Cahoon realized his car keys were missing shortly after the apartment break-in. On cross-examination, Flinner‘s attorney elicited testimony that, when Cahoon first reported the incident to the police, Cahoon said the intruder looked like a Mexican person and resembled Flinner‘s friend, Gilberto Lopez. During later cross-examination by Ontiveros‘s counsel and redirect examination by the prosecution, Cahoon explained that he had always thought the intruder was Flinner but had been reluctant to name him because Cahoon was afraid of Flinner. Over Flinner‘s objection, the trial court permitted Cahoon to explain why he ultimately chose to come forward and name Flinner: “Because I think he is a very bad man and he
On recross-examination, Flinner‘s counsel attempted to impeach Cahoon by portraying Cahoon as a biased witness who was trying to ensure Flinner‘s conviction. Defense counsel elicited Cahoon‘s testimony that Cahoon had been trying to find out what he “could do to go ahead and help to get [Flinner] off the street and away from the public eye and so he couldn‘t hurt or kill anybody else.” And Cahoon confirmed, upon defense counsel‘s followup, that this was his “angle” — that he did not like Flinner and did not think he “should be with us here.” At defense counsel‘s request, the trial court struck other portions of Cahoon‘s testimony as nonresponsive, including Cahoon‘s statement that he was still scared of Flinner and thought “what he‘s doing to [codefendant Ontiveros] is ridiculous.”
We conclude the trial court properly admitted this testimony. Cahoon‘s description of his initial fear in response to questioning by the prosecution and by Ontiveros‘s counsel were relevant to Cahoon‘s credibility: His fear of Flinner provided an explanation for why he did not immediately name Flinner as the home intruder. Cahoon did express strong negative feelings about Flinner alongside his fear; some of his statements held a potential for prejudice within the meaning of
Next, Flinner argues that the trial court erred in admitting prosecution witness Ronald Millard‘s statement that, although Flinner had never threatened or harmed him, Millard felt intimidated by Flinner. Millard, who had worked for Flinner, testified to aspects of the relationship between Flinner and Ontiveros. On cross-examination, Flinner‘s attorney asked the following questions:
“Q: Did Mr. Flinner ever threaten you personally?
“A: No.
“Q: Did Mr. Flinner ever touch you physically?
“A: No.
“Q: Did Mr. Flinner ever do anything to make you personally afraid of him where he said something to you concerning anything.
“A: He‘s a very intimidating man.”
As with Cahoon‘s later statements of fear, defense counsel initiated this line of questioning and did not ask the trial court to strike Millard‘s answer that Flinner is “a very intimidating man,” the only portion of Millard‘s testimony to which he now objects. Under these circumstances, his claim of error is not
Finally, Flinner returns to McLarnan‘s testimony. The prosecutor asked McLarnan what she did upon receiving the letter from Flinner asking her to send letters to witnesses in his case. When she said that, at first, she “didn‘t do anything with it” and ultimately turned it over to the defense investigator, the prosecutor asked whether she ever contacted police or the district attorney‘s office to tell them about Flinner‘s letter. She said she had not. The prosecutor proceeded to ask her whether she had been concerned about her family‘s safety should Flinner find out about her decision not to help him. Over Flinner‘s objection on grounds of relevance and undue prejudice, the trial court allowed McLarnan to answer that she “was concerned about Michael‘s reaction” and she “was concerned for [her] son.” The prosecutor also introduced portions of a letter she sent to the defense investigator in which she wrote, “I‘m seriously concerned for my family‘s safety should Michael find out about this,” and queried, “Do you think we‘ll need protection?”
We conclude that this evidence was relevant. “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” (People v. Burgener (2003) 29 Cal.4th 833, 869.) McLarnan‘s explanation of why she was afraid was “likewise relevant to her credibility” and its admission “well within the discretion of the trial court.” (Ibid.) McLarnan did not initially tell anyone about the letter that she received from Flinner and never handed the information over to the authorities; her fears of what Flinner would do if he found out about her actions were relevant to why she held this information so closely and did not come forward immediately with it, despite
2. Flinner‘s Derogatory Statements About Keck
Flinner argues that the trial court improperly admitted derogatory and callous comments he made about Keck before and after her death. Tiffany Faye testified about a visit that Flinner made to the flower shop where she worked to purchase flowers for Keck‘s funeral. During the visit, Flinner yelled at a woman driving by in a car, “Hey baby, I‘m single now,” and laughed. In declining to add a message to accompany the flowers he purchased, Flinner told Faye, “Tammy is dead. It‘s not like she can read it anyway,” and laughed again. David Pemberton, a contractor who met Flinner at their local Chamber of Commerce meetings, testified that Flinner referred to Keck as a “bitch,” “cunt,” and “slut” in front of her and others. Flinner contends that these statements should have been excluded as irrelevant or, even if relevant, as substantially more prejudicial than probative.
We conclude the trial court properly admitted the contested testimony of Faye and Pemberton. Flinner‘s derogatory characterizations of Keck, made both in Keck‘s presence and as well as in front of others, are relevant to proving his strained relationship with Keck and thus his relative willingness to have her killed in furtherance of his own material gain. His callous remarks in Faye‘s presence shortly after Keck‘s death are relevant to establishing his lack of sorrow, thus refuting the defense‘s theory that Flinner was in love with Keck and therefore would not have been involved in her murder. And the probative value of these statements was not substantially outweighed by any prejudicial impact. These disparaging remarks were not particularly inflammatory considering the
3. Admissibility of Series of Writings Allegedly Authored by Flinner or at His Direction
Flinner argues that the trial court erred in admitting a series of letters, a telephone call recording, and two bullet casings with “Tammy” and “Mike” written on them, all allegedly authored by Flinner or made at his direction. He asserts that none of these writings was properly authenticated, in violation of
With respect to a majority of these pieces of evidence, Flinner has forfeited his objection based on lack of authentication. Flinner argues that he preserved all his authentication claims for our review. Without fully explaining his argument on this point, he points to a pretrial ruling in which he claims the court granted his request that all objections by the defense be regarded as having been made on all relevant state and federal grounds. But this ruling was not a sweeping
Under the Evidence Code, authentication of a writing — including documents, audio recordings, and “every other means of recording upon any tangible thing” (
Here, the prosecution introduced the challenged writings for the purpose of showing that Flinner attempted to derail the investigation of Keck‘s death by framing others for her murder while making himself appear innocent or, indeed, another target of her killer(s). Flinner argues that the prosecution failed to properly authenticate these writings because the prosecution did not make a sufficient preliminary showing that Flinner was the author of these writings or that he directed others to create them. The Attorney General responds that a preliminary showing that Flinner authored these writings was unnecessary because these writings were not offered for the truth of their contents but rather “for the jury to specifically consider whether Flinner authored or caused their production.” The Attorney General asserts that “when the content of the writing or the truthfulness of the assertions in the writing are not at issue, authentication as to authorship is largely unnecessary,” citing People v. Adamson (1953) 118 Cal.App.2d 714, 720 (Adamson).
As an initial matter, the Attorney General‘s interpretation of Adamson is flawed and his reliance on the case is misplaced.
That said, we conclude that the writings at issue here were properly authenticated or could have been authenticated had an objection been timely raised. ” ‘[A] writing can be authenticated by circumstantial evidence and by its contents’ ” (People v. Landry (2016) 2 Cal.5th 52, 87 (Landry)), and we agree with the Attorney General that “the prosecutor presented circumstantial evidence sufficient to enable the jury to ascertain that [Flinner] was responsible for the writings.” We address each of the challenged writings in turn.
a. Anonymous Letter Implicating Cahoon
A few weeks after Keck was killed, a police officer found an anonymous letter left on the windshield of his police car. The letter claimed that Charles Cahoon had killed Keck. Flinner did not object to the introduction of this evidence on authentication grounds, and his claim is thus forfeited.
Even if Flinner had objected, we conclude it was not an abuse of discretion to admit the letter. The prosecution introduced circumstantial evidence that provided a sufficient preliminary showing for the prosecution to put the letter before the jury, which then had to make the ultimate factual determination of whether Flinner did indeed author it. During the trial, the prosecution introduced other evidence tending to prove that Flinner attempted to frame Cahoon for Keck‘s murder. Cahoon testified that Flinner broke into his apartment and that shortly after the break-in, Cahoon realized that his car keys were missing. Around the time the police officer found the
b. Anonymous Letter Implicating Software Developer
In February 2001, Flinner‘s mother received an anonymous letter posted from New York and made up of letters cut out of a magazine. The letter‘s contents made little sense but included the following passage: “My continuing professional work is on improving the reliability of software. . . . We have got a head start of 100 years. Forced to kill the fiancé[e]. She knew too much.” The letter also said, “Keep him quiet.” Flinner failed to object to the admission of the letter; he therefore has forfeited his appellate claim that the letter should not have been admitted. The claim also fails on the merits. In the months leading up to the letter‘s delivery, Flinner shared a theory that Keck was killed due to her knowledge of a scheme in which the North Korean government was seeking to have special gambling software delivered to mobsters in the United States. Flinner
c. First Letter Implicating Host and Ontiveros
Shortly after a press release announced that the police had taken Ontiveros into custody, police intercepted a letter addressed to Ontiveros. The letter was signed “Eli” and blamed Ontiveros for ruining a hit on “the target” and “Mike.” It reads, in part, “What were you doing? ICSC with Rick [Host] were acting on behalf of Kwan and they selected the target for a reason. . . . [Y]ou need to keep your mouth shut. If things go bad, blame everything on Mike.” The letter also expressed concern “that Rick may have told Mike all that was going on before his death,” and purported to remind Ontiveros that he was “instructed not to call or see Rick after . . . giving him back his car.” Flinner failed to object to this letter in the trial court and has thus forfeited the claim that it should not have been admitted. And, as with the letter to Flinner‘s mother, it was not an abuse of discretion to admit this letter. The other circumstantial evidence that Flinner was trying to pin blame on Ontiveros, Host, and the North Korean government supports the inference that Flinner forged this letter.
Before trial, Judge Preckel received a letter written in broken English from a person claiming to know Ontiveros. The letter asserted that “a man named Rick” paid Ontiveros “to kill the girl.” It explained that Keck‘s boyfriend — who “never know about this” — lent a car to Rick, who then lent it to Ontiveros. Rick told Keck to pick up Ontiveros, who then shot her in the head. The letter was signed “A.” Flinner did not object to the admission of the letter and has forfeited his challenge on authentication grounds. The challenge is also meritless. As discussed above, the prosecution introduced other evidence tending to prove that Flinner tried to implicate Rick Host in Keck‘s death. And the prosecution also introduced other evidence that Flinner attempted to pin the blame for Keck‘s death on Ontiveros: Flinner sent a series of letters to religious organizations claiming that Ontiveros killed Keck. He also sent a letter to United States Representative Duncan Hunter (discussed below) claiming that Ontiveros killed Keck and that her death was related to the gambling software scheme. In light of this other evidence making it possible to infer that Flinner caused this letter to be sent as part of his plan to shift blame from himself to Host and Ontiveros, it was not an abuse of discretion to admit the letter.
e. Anonymous Phone Call Implicating “Ernesto”
A few days after Keck‘s murder, the sheriff‘s department received a phone call from a Spanish-speaking woman who declined to identify herself. She claimed that a man named Ernesto told her that he killed Keck because he wanted to take revenge on Flinner. The woman explained that Ernesto “had had some problems with Mike like . . . like 10 years ago.” And she said that Ernesto told her that Keck had been driving a
We conclude the trial court acted within its discretion in overruling the defense objection and admitting the phone call. Days after the sheriff‘s department received the anonymous call, Flinner passed along to Detective Scully a voicemail message that Flinner received from a man with a “strong, Hispanic accent.” The caller said, “Mike, I see your wife Sunday [the day of the murder]. I see you next. Bye.” Flinner explained to Detective Scully that “[t]he only time [he] ever had a problem with anybody that was Hispanic” was 10 years earlier, when he got into an argument with a group of “Mexican folks.” The police had not told Flinner about the anonymous call claiming that Ernesto had killed Keck in revenge for a decade-old problem.
One possible inference in light of this evidence is that the anonymous caller was telling the truth about Ernesto. But another inference, in light of the other, substantial evidence that Flinner attempted to frame others for Keck‘s death, is that Flinner arranged for the initial anonymous phone call to be placed to the sheriff‘s department to deflect attention from himself. The factual determination of whether Flinner was responsible for the call was properly put to the jury. Again, ” ‘[t]he fact conflicting inferences can be drawn regarding’ ” the call‘s origin goes to the call‘s weight and not its admissibility. (Goldsmith, supra, 59 Cal.4th at p. 267.)
During the investigation, Flinner‘s father found a container on his property with two bullets in it, which he turned over to the police. One was a spent casing with “Tammy” written on it, and the other was a live bullet with “Mike” written on it. The bullets were of the same caliber and make as the bullet that killed Keck. James Theodorelos, a cooperating informant who met Flinner in prison, testified that Flinner told him that Flinner had “put a few bullets on his parents’ property, one had been spent, with the initial of [Keck‘s] name and the other one was the initial of [Flinner‘s] name.” Flinner did not object to the introduction of the bullets and has forfeited the claim that they were improperly admitted. In any event, in light of Theodorelos‘s testimony linking Flinner to the bullet writings, the trial court acted within the bounds of its discretion in admitting evidence of the two bullets.
g. Letters to John Martin
One of Flinner‘s fellow inmates, John Martin, turned over to Detective Scully two letters that Flinner had allegedly written. In the first letter, the author claimed that Theodorelos turned on the author: “You see, [Theodorelos] has taken all of what I‘ve shared about matters and twisted them up into his favor, saying that I told him that I sent the letter from the east to my parents, that I put . . . the casings on my dad‘s property et cetera.” The letter also asks Martin to “remember the times . . . I had mentioned things like how my folks had received threats from the east coast and how my father found shell casings on his property and things about my business partner telling you that Asians were involved in that deal with my wife and things like that.” The second letter, which appears to respond to an
We conclude the trial court did not err in admitting these letters because their contents and other circumstantial evidence presented by the prosecution sufficiently authenticated the letters. The content of the first letter connects it to Flinner: The letter discusses the bullet casings that Flinner‘s father found, the letter that his mother received from New York (a threat from “the east coast“), and the theory that Keck was tied up in a “deal” with some “Asians” (similar to the North Korean gambling software scheme theory). It also faults Theodorelos, the same man who testified against Flinner at trial, for cooperating with the prosecution. (See Landry, supra, 2 Cal.5th at p. 87 [relying on the contents of a letter to support the letter‘s authenticity, even where the information relayed in the letter may have been known by individuals other than the alleged author]; see also
h. Letter to Member of Congress
While in jail before trial, Flinner wrote a letter to United States Representative Duncan Hunter. In the letter, Flinner explained that his former employee was responsible for Keck‘s murder, that “the Korean gaming industry” arranged the murder because Keck “was in possession of crucial software desired to promote and advance political payoffs,” and that Flinner had learned all of this from “a now deceased business associate . . . on his death bed.” Flinner did not raise an authentication objection in the trial court and has forfeited that claim. In any event, the letter was properly authenticated. Before the letter was introduced, the prosecution had Detective Scully explain how he had requested a mail cover for Flinner‘s jail mail and that he had accordingly received photocopies of all Flinner‘s incoming and outgoing mail, including the letter to Representative Hunter. (See, e.g., Landry, supra, 2 Cal.5th at p. 87.)
Although Flinner lumps this letter in with the other writings to which he objects on authentication grounds, Flinner‘s complaint about this letter is primarily based on other concerns. Specifically, Flinner claims that jail employees violated Penal Code
In sum, Flinner‘s objections to these eight writings are all either forfeited or meritless. We also reject Flinner‘s claim that these writings were irrelevant or substantially more prejudicial than probative (
4. Admissibility of Flinner‘s Statements Suggesting He Killed Keck
Flinner contends that the trial court erred in admitting statements he made to his friend Gilberto Lopez, suggesting that Flinner killed Keck or had Keck killed. Flinner argues that these statements were hearsay and that they are insufficiently reliable to admit as statements against interest. Even if these statements were not inadmissible hearsay, he asserts, they should have been excluded as substantially more prejudicial than probative. He maintains that the admission of these
Lopez testified that a few days after Keck‘s murder he went out to dinner with his girlfriend Marie Locke and Flinner.10 He recalled Flinner having two large drinks and described him as becoming “tipsy” and seeming “really sad, really down.” During the meal, Flinner stated, “I shouldn‘t have killed her.” On cross-examination, Lopez acknowledged Flinner may have just been “talking trash” that night, and that Lopez had thought at the time that Flinner was blaming himself but did not think Flinner was, in fact, responsible for Keck‘s death. Lopez also testified about another occasion after the murder, in which Flinner had taken sleeping pills and was “acting all groggy, mumbling.” While Lopez was helping Flinner up to his bed, Flinner said, “I shouldn‘t have killed her.”
Flinner‘s hearsay objection to the admission of this testimony lacks merit. Hearsay is an out-of-court statement offered for the truth of the matter asserted and is generally
As for section 1230, Flinner does not dispute that he was “unavailable as a witness” within the meaning of Evidence Code section 1230, since he had asserted his Fifth Amendment right not to testify. And his statements that he should not have killed Keck are, on their face, clearly contrary to his penal interests as they admit culpability for her murder.
Flinner nevertheless argues that the circumstances surrounding the two statements establish that they are not sufficiently disserving of his interests nor sufficiently reliable to justify admission. Flinner notes that he was under the influence of alcohol or sleeping pills when he allegedly made these statements and that Lopez may not have taken them literally. He relies on Duarte, supra, 24 Cal.4th 603, in which the
And finally, while the jury was certainly entitled to consider Lopez‘s relatively innocuous interpretation of Flinner‘s comments, Lopez‘s interpretation could not have precluded the jury from drawing a more incriminating inference. Under these circumstances, the trial court did not abuse its discretion in admitting Flinner‘s hearsay statements as statements against his penal interest.
Nor were these statements inadmissible under Evidence Code section 352 as substantially more prejudicial than probative. The prejudice contemplated by section 352 typically involves a potential for evoking an emotional bias against the defendant on legally irrelevant or improper grounds; it is not the ” ’ “damage to a defense that naturally flows from relevant, highly probative evidence.” ’ ” (People v. Scott (2011) 52 Cal.4th 452, 491.) Nothing in Flinner‘s statements that he should not have killed Keck would inflame the emotions of the jury in this way.
In sum, we conclude the trial court properly admitted Flinner‘s statements to Lopez. We thus reject Flinner‘s argument that the admission of these statements violated his Sixth, Eighth, and Fourteenth Amendment rights.12
5. Admissibility of Evidence of Keck‘s Pregnancy
Flinner argues that the trial court erred in admitting evidence that Keck may have been pregnant when she was killed. He asserts that evidence of Keck‘s pregnancy was not relevant to any issue in dispute and that, even if relevant, its probative value was substantially outweighed by its prejudicial impact on the jury. Flinner also claims the admission of this evidence violated his rights to a reliable penalty determination and due process under the Eighth and Fourteenth Amendments.
Before trial, the prosecution moved to admit evidence about Flinner‘s strained relationship with Keck — including evidence of Flinner‘s displeasure with her possible pregnancy — as relevant to establishing his motive for her murder and because it tended to refute Flinner‘s claim that he was deeply in love with Keck, wanted to marry her, and wanted to father her child. Included in this motion was the prosecutor‘s plan to introduce the testimony of Melissa Henderson and Nathalie Reed, who would each testify that Flinner discussed Keck‘s pregnancy with her soon after Keck‘s murder and expressed displeasure with the pregnancy. Flinner objected generally to evidence of his strained relationship with Keck, arguing it was irrelevant because the prosecution‘s theory of the case was that Flinner had Keck killed in order to collect insurance money, not because of any relationship problems. Although the trial court excluded some of the evidence of the state of Keck‘s and Flinner‘s relationship as substantially more prejudicial than probative under Evidence Code section 352, it admitted much of it, including the planned testimony of Henderson and Reed. Defense counsel preserved the objection that this evidence was irrelevant and, even if relevant, should have been excluded under Evidence Code section 352. Also before trial, Flinner objected to the planned expert testimony of the pathologist who conducted Keck‘s autopsy that Keck‘s ovaries and uterus suggested that she may have been in the early stages of pregnancy at the time of her death.
At trial, the prosecutor introduced photos of a pregnancy test found in Keck‘s truck at the scene of the crime, as well as a Walmart receipt showing that she had purchased the test just before she was killed. Henderson testified that she met Flinner on a phone chat line in June 2000, shortly after Keck‘s death, and that Flinner told her his fiancée had been pregnant and he was “dreading her being pregnant.” Reed testified that she worked at a casino that Flinner frequented and that after Keck‘s death, Flinner said Keck was “lying” about the pregnancy “and she was trying to get him to marry her and he wasn‘t going to do that.” Defense counsel renewed his objection on Evidence Code section 352 grounds, and the trial court again overruled the motion. Kim Milan then testified that she met Flinner through Lopez and during one conversation asked Flinner if he had killed Keck. He replied, “I know they think I did it, but why would they want to believe that? She was pregnant with my baby and we were about to be married.” Gregory Sherman, who met Flinner in jail, testified that Flinner discussed his “wife” and said that she was pregnant when she was killed. Over Flinner‘s objection, the prosecutor introduced letters that Flinner wrote to religious organizations from jail, blaming a
Although Flinner now claims error in the admission of all evidence concerning Keck‘s pregnancy, he did not raise all of these objections at trial. In particular, he did not object to the relevant portions of the testimony of Milan and Sherman, nor to the photos of the pregnancy test and Walmart receipt. Flinner‘s objection as it applies to these pieces of evidence is thus forfeited.
His objection to all evidence concerning Keck‘s pregnancy as irrelevant or unduly prejudicial also fails on the merits. As at trial, Flinner argues that evidence of Keck‘s pregnancy was irrelevant because the prosecution‘s theory of the case was that Flinner arranged Keck‘s death in order to collect on her life insurance policy, and there was no evidence suggesting that she was pregnant, or that Flinner believed she was, when he insured her life. As support for his argument, Flinner points to People v. Cash (2002) 28 Cal.4th 703, 729, where we held that an attempted murder victim‘s pregnancy was “clearly irrelevant” to any issue in the case. There, the defendant shot the victim in the course of committing a robbery and had no personal relationship with the victim apart from renting a room in her boyfriend‘s house. Neither the defendant‘s relationship to the victim nor the victim‘s pregnancy had any bearing on the case. Here, by contrast, Flinner‘s displeasure with Keck‘s pregnancy provides an additional motive for her murder and is probative of
We also reject Flinner‘s claim that this evidence is substantially more prejudicial than probative. The kind of evidence that Evidence Code section 352 excludes is that which ” ’ “uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” ’ ” (People v. Scott, supra, 52 Cal.4th at p. 491.) We recognize that in some instances, as in Cash, a victim‘s pregnancy may have little or no relevance to the guilt phase of a trial and may serve only to inflame the emotions of the jury. But here, Keck‘s possible pregnancy was probative of Flinner‘s motive for her murder, and — against the backdrop of evidence that he hired a hitman to kill his teenage fiancée for insurance money — we do not think this evidence was so uniquely damaging as to require its exclusion. Flinner also argues that the pathologist‘s testimony, even if relevant, was too speculative to present to the jury in light of its prejudicial impact. The pathologist properly presented his expert opinion based on the autopsy; that he could not say for sure that Keck was pregnant goes to the weight a reasonable juror would assign it, not its admissibility.
6. Martin Baker‘s Competence to Testify
Through the testimony of Martin Baker and other witnesses, the prosecution sought to show Flinner had attempted to frame Baker for Keck‘s murder. Flinner contends that Baker was incompetent to testify under Evidence Code section 701, subdivision (a) and lacked the requisite capacity to perceive and recollect in order to testify under Evidence Code section 702, subdivision (a). He argues that the trial court‘s failure to disqualify Baker as a witness and refusal to strike Baker‘s incoherent testimony violated his Sixth, Eighth, and Fourteenth Amendment rights to cross-examination, due process, and a reliable penalty determination.
When a witness‘s competency to testify at all, or to testify as to a particular matter, is questioned, we start from the general rule that “[e]xcept as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.” (
Here, the record does not support the claim that Baker lacked the capacity to communicate so as to be understood or that he was unable to understand the duty of truthful testimony. Baker worked for Flinner‘s landscaping business. The prosecution called Baker as a witness to testify that Flinner tried to frame Baker for Keck‘s death and to establish the independent poisoning charge. When the prosecution first called Baker, the court held a preliminary Evidence Code section 402 hearing in front of the jury to “assess Mr. Baker‘s apparent condition and circumstances,” asking the prosecution to first “inquire of Mr. Baker as to who he is and what he‘s been doing presently and in the recent past,” without “get[ting] into any substantive matters.” Baker demonstrated his ability to communicate when he testified as to his early life, his education, and his family. Flinner points out that Baker initially refused to answer questions concerning his siblings’ ages, saying, “I plead the 5th,” but this does not establish that Baker did not understand his duty to testify truthfully. His reluctance to respond stemmed from his sense that the question was “pretty personal” and that the case “has nothing to do with [his] family,” but he acquiesced as soon as the court admonished him that as a witness, he must answer questions honestly and to the best of his ability. We are satisfied that the trial court did not abuse its discretion in concluding that, although Baker may be “a bit different,” he was nevertheless qualified to testify. (See People v. Lewis (2001) 26 Cal.4th 334, 361 [witness diagnosed as having intellect of a seven year old was not disqualified from testifying even though he “often responded in incomplete, sometimes
Even if a witness is not disqualified as incompetent under Evidence Code section 701, subdivision (a), his or her testimony on a particular matter (other than expert opinion testimony) is inadmissible “unless [the witness] has personal knowledge of the matter.” (
Our review of the record confirms that, although Baker departed on odd and incoherent digressions during his testimony, there was substantial evidence from which a rational trier of fact could conclude that Baker perceived and recollected the events of the night that Flinner poisoned him and attempted to frame him for Keck‘s murder. Flinner points to isolated portions of Baker‘s testimony that Flinner claims show that Baker‘s mental illness or drug use rendered him unable to perceive and recollect the events of that night. For instance, when asked at what time he began to feel less groggy after eating the chili provided by Flinner, Baker responded: “A few days after that. It was like a reoccurring of a myth is what I felt like. [¶] . . . [¶] . . . Something like in a previous livelihood specting [sic] him reincarnated, someone getting reincarnated in a certain fashion. It would never work, say for instance,
As Flinner points out, the jury also heard Baker‘s testimony that he had used methamphetamine a few days before the evening at Flinner‘s house, as well as Baker‘s testimony about his broader past drug usage and mental health issues, including “delusions” that caused him to check into CMH a few months after the evening in question. The jury was presented with evidence that Baker tested positive for methamphetamine, THC, and Xanax after being taken from Flinner‘s apartment to the sheriff‘s substation. And the jury heard the expert testimony of a psychiatrist, who reviewed Baker‘s medical records from his time at CMH and testified that Baker was “having a very severe problem with psychosis, with hallucinations and psychotic delusions” and who conveyed his expert opinion that such a person‘s “ability to accurately perceive what‘s going on in the real word [sic] is severely impaired.”
But ” ‘[t]he fact that a witness has made inconsistent and exaggerated statements does not indicate an inability to perceive [or] recollect . . . .’ [Citation.] Nor does a witness‘s
In sum, the trial court did not err in permitting Baker to testify or in failing to strike his testimony on these matters. We reject Flinner‘s argument to the contrary and his related constitutional claims.
Flinner contends that the trial court erred in admitting portions of his codefendant Ontiveros‘s confession to police and that the admission of these statements violated his confrontation clause rights under the Sixth and Fourteenth Amendments to the United States Constitution. We agree there was error but conclude that it was harmless beyond a reasonable doubt.
Before trial, the prosecution conceded that two juries were appropriate in this case but sought to establish that certain parts of Ontiveros‘s confession to police would be admissible before Flinner‘s jury. Flinner moved in limine to exclude all of Ontiveros‘s statements to police as inadmissible hearsay whose admission would violate Flinner‘s confrontation clause rights. The trial court determined that certain portions of Ontiveros‘s confession that inculpated Ontiveros alone and did not explicitly or implicitly refer to Flinner were sufficiently trustworthy to be admitted against Flinner as statements against the declarant‘s interest.
At trial, Ontiveros did not testify. With only Flinner‘s jury present, the prosecution offered the approved statements against interest through Detective Scully, who interviewed Ontiveros after his arrest. To ensure that the jury heard only the narrow, approved statements from Ontiveros‘s confession, the prosecutor read verbatim portions of the interview transcript and asked Detective Scully whether the answers in the transcript were the ones that Ontiveros gave him. By this means, the prosecutor introduced Ontiveros‘s admissions that on the day of Keck‘s killing he was driving the white Nissan NX car by himself, and that Keck picked him up, drove him to the
After the jury returned the guilt verdicts but before sentencing, the high court issued its decision in Crawford, supra, 541 U.S. 36, where it held that the admission of testimonial hearsay statements against a criminal defendant violates the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity for cross-examination. Flinner moved for a new trial, arguing that Ontiveros‘s statements were inadmissible against Flinner under Crawford. The trial court agreed that the admission of Ontiveros‘s statements fell afoul of Crawford but ruled that their admission was subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, and was harmless beyond a reasonable doubt. It accordingly denied Flinner‘s motion for a new trial.
Flinner renews his trial arguments that the introduction of Ontiveros‘s statements through Detective Scully‘s testimony violated the confrontation clause under Crawford and that the error necessitates a new trial. The Attorney General responds that Ontiveros‘s statements are admissible under pre-Crawford case law concerning the introduction of a codefendant‘s confession in a joint trial — namely, Bruton, supra, 391 U.S. 123, and Richardson v. Marsh (1987) 481 U.S. 200 (Richardson). And he argues that Crawford does not bar the admission of Ontiveros‘s statements because Ontiveros‘s statements neither accused Flinner of anything nor mentioned the involvement of anyone other than Ontiveros in Keck‘s murder.
The Attorney General‘s reliance on Bruton and Richardson is misplaced. “In Bruton, the United States
The Attorney General argues that under Richardson, Ontiveros‘s statements were admissible because nothing in Ontiveros‘s statements expressly inculpates Flinner. But the codefendants in Bruton and Richardson, unlike those here, were jointly tried in a case before a single jury, and both cases rested on the premise that the nontestifying defendant‘s confession was inadmissible against the codefendant. In each case, the trial court imposed a limiting instruction to the jury that it could only consider the confession as evidence against the declarant and not against the codefendant. (See Bruton, supra, 391 U.S. at p. 125; Richardson, supra, 481 U.S. at pp. 204–205.) The high court had to decide whether the limiting instruction sufficed to protect the codefendant‘s confrontation rights. In other words, the question in these cases was not whether a nontestifying defendant‘s confession is admissible against his codefendant; the opinions assumed that it was not. The question, instead, was whether — given that the defendant‘s confession was only admissible against him and not his codefendant — a limiting instruction by the court is sufficient to protect the codefendant‘s confrontation rights. Here, Flinner and Ontiveros were jointly tried but before two separate juries. No limiting instruction was given — indeed, the relevant testimony by Detective Scully was offered only to Flinner‘s jury — because the trial court expressly determined that Ontiveros‘s statements were admissible against Flinner as statements against interest. For these reasons, Bruton and Richardson are simply irrelevant here. (See also People v. Brown (2003) 31 Cal.4th 518, 537 [Bruton rule inapplicable where defendants are not jointly tried].)
The Attorney General argues instead that the “chief evil” that Crawford sought to prevent is the introduction of “accusatory testimonial statements.” Because Ontiveros‘s statements did not explicitly or implicitly accuse Flinner of anything, the Attorney General reasons that Flinner‘s confrontation rights were not implicated by their admission. But the high court has already rejected a similar argument. In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the high court concluded that the affidavits of crime lab analysts certifying that a substance found in the defendant‘s possession
We conclude the Attorney General‘s argument fails for the same reason. The prosecution offered the approved portions of Ontiveros‘s confession before Flinner‘s jury out of the presence of Ontiveros‘s jury, presumably because these statements corroborated the prosecution‘s theory that Flinner had hired Ontiveros to kill Keck. The fact that the selected statements do not explicitly mention Flinner does not render Ontiveros any
The Attorney General suggests we have held otherwise in People v. Stevens (2007) 41 Cal.4th 182 and Lewis, supra, 43 Cal.4th 415, where we reasoned that “[t]he same redaction that ‘prevents Bruton error also serves to prevent Crawford error.’ ” (Stevens, at p. 199; accord, Lewis, at p. 506.) But as with Bruton and Richardson, Stevens and Lewis have no application here: Both concerned the admission of a codefendant‘s statement at a joint trial before a single jury. The codefendant in Stevens also testified at the joint trial and was thus available for cross-examination, obviating any confrontation clause problem. (Stevens, at p. 199.)
In Lewis, redacted portions of the codefendant‘s confession to police were read to the jury and the “jury was instructed to consider these statements against the speaker only and not against any other defendant.” (Lewis, supra, 43 Cal.4th at p. 452.) Although we agreed with the defendant that the admitted statements from his codefendant‘s confession were “no doubt testimonial,” we reasoned that the statements were not admitted “against” the defendant within the meaning of the confrontation clause because they did not facially implicate the defendant. (Id. at p. 506.) We noted: “As the high court has explained, ‘[o]rdinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness “against” a defendant if the jury is instructed to consider that testimony only against a codefendant.’ [Citation.] The only exception to this rule is the narrow class of statements . . . that powerfully incriminate the defendant on their face because they directly implicate the defendant by name or do so in a manner the jury could not reasonably be expected to ignore. [Citations.]
For these reasons, we agree with the trial court that the admission of Ontiveros‘s statements against Flinner violated Flinner‘s confrontation clause rights. The question remains, however, whether the error was harmless beyond a reasonable doubt. (See Lilly v. Virginia (1999) 527 U.S. 116, 139–140.) On this question, too, we agree with the trial court. Nothing elicited from Ontiveros directly implicated Flinner, whose involvement in the scheme to kill Keck was proven by independent evidence. And even as to the manner in which Ontiveros implemented the final phase of that scheme, the killing itself, other evidence illuminated most of the details: Photos and videos from nearby surveillance cameras showed Keck‘s and Ontiveros‘s movements into and (in Ontiveros‘s case) out of the cul-de-sac, and the crime scene and forensic evidence showed Keck was shot in the back of her head while opening the hood of her car, which was still running. As we conclude in the next discussion section, there was ample evidence, independent of Ontiveros‘s statement, that he accompanied Keck to the cul-de-sac and waited until she was occupied opening her hood before shooting her in the back of the head. As to both first degree murder and the lying-in-wait special circumstance, therefore, Ontiveros‘s statement that Keck drove him to the cul-de-sac and parked her car facing his was cumulative of other prosecution evidence regarding the manner of Keck‘s killing. For that reason, and because the portion of Ontiveros‘s statement admitted in
8. Sufficiency of the Evidence for the Lying-in-Wait Special-Circumstance Finding and the Lying-in-Wait First Degree Murder Conviction
Flinner contends there was insufficient evidence to support his conviction for lying-in-wait first degree murder, as well as insufficient evidence to support the lying-in-wait special-circumstance finding.
“We often address claims of insufficient evidence, and the standard of review is settled. ‘A reviewing court faced with such a claim determines “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citations.] We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] Further, “the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Moon (2005) 37 Cal.4th 1, 22.)
The capital murder in this case occurred in June 2000, shortly after Proposition 18 amended the lying-in-wait special-circumstance statute. (Stats. 1998, ch. 629, § 2, pp. 4163–4166, enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000.) We consider the effect of that amendment below (pt. II.B.9., post), in addressing Flinner‘s argument that the amendment rendered the special circumstance unconstitutional. As relevant here, however,
Flinner concedes that the concealment element of the statute is satisfied here, where Flinner and Ontiveros concealed their purpose from Keck when they summoned her to the cul-de-sac on the pretense of jumpstarting Ontiveros‘s car. And Flinner does not argue that he or Ontiveros lacked the intent to kill. But Flinner maintains that the evidence was insufficient to establish a “substantial period of watching and waiting” and a “surprise attack from a position of advantage.”
First, Flinner contends that the mere three minutes that elapsed between the time Keck‘s Mustang entered the cul-de-sac to the time Ontiveros drove away from the scene of the murder could not constitute a substantial period of watching and waiting. But as we have repeatedly explained, the purpose of the watching and waiting element ” ’ “is to distinguish those
Here, viewing the evidence in the light most favorable to the verdicts, we conclude that the prosecution presented sufficient admissible evidence from which a trier of fact could find beyond a reasonable doubt that Ontiveros watched and waited for an opportune moment to launch a surprise attack on Keck. The prosecution‘s theory of the murder was that Flinner called Keck and asked her to pick up Ontiveros from a nearby gas station and drive to a cul-de-sac where Ontiveros‘s car had broken down in order to give him a jumpstart. While Keck was facing her Mustang and opening its hood, Ontiveros shot her in the back of the head. The prosecution‘s evidence of how the actual killing occurred consisted largely of surveillance videos and stills from gas stations, stores, and businesses in the area, as well as forensic evidence of Keck‘s injuries and the state in which her car was found at the crime scene.13 Video shows
Deputy Sheriff Troy Doran testified that Keck‘s Mustang was found with the keys still in the car, the engine running, and the passenger door open. Photos of the crime scene showed that the hood of Keck‘s Mustang was ajar, though not propped open with the hood rod. And photos showed blood stains on the front bumper of the car, the underside of the hood, and on the hood rod, which was out of place. Robert Whitmore, who performed the autopsy, testified that he found a “textbook entrance wound” on the back of Keck‘s head, and that the lack of soot on the wound indicated that the gun was some distance away from her head when it was fired. He also testified that Keck sustained facial abrasions before she died, which he opined were consistent with her face hitting the engine compartment of the Mustang after she was shot. And he testified that he found no evidence of evasion by Keck, suggesting that she never saw the gunshot coming. The bullet thus passed through Keck‘s brain, exited through her right cheek, and finally lodged in the firewall of her car in the engine compartment. David Cornacchia, a blood spatter expert, testified that blood on Keck‘s leg and on the engine of the car were consistent with Keck being shot while holding open the hood and leaning over the engine. And even before the autopsy was performed, at a point when the
Flinner also argues that there is insufficient evidence that Ontiveros shot Keck from a position of advantage. He reasons that the fact that Keck was shot in the back of the head “does nothing to distinguish this case from any other such ‘ordinary premeditated murder,’ ” quoting our decision in People v. Morales (1989) 48 Cal.3d 527, 557. As we explained in Morales, “a mere concealment of purpose” is not sufficient to establish lying in wait, since “many ‘routine’ murders are accomplished by such means, and . . . constitutional considerations . . . might well prevent treating the commission of such murders as a special circumstance.” (Ibid.) Were there only evidence suggesting, for example, that Ontiveros drove up behind Keck while she had the hood of her car open and shot her from behind, we might agree with Flinner that the evidence could not distinguish the killing from an ordinary premediated murder not subject to a lying-in-wait special-circumstance finding. (Cf. People v. Nelson (2016) 1 Cal.5th 513, 551 [insufficient evidence for lying-in-wait special circumstance where evidence only showed the defendant “came up behind his victims on foot to take them by surprise” and no evidence showed that he “arrived before the victims or waited in ambush for their arrival“].) But here, as discussed above, the evidence tends to show that Ontiveros left the Nissan NX in the cul-de-sac in advance of
9. Constitutionality of Lying-in-Wait Special Circumstance
Flinner argues that Proposition 18 rendered the lying-in-wait special circumstance indistinguishable from lying-in-wait first degree murder, and that the special circumstance is therefore unconstitutionally vague and fails to adequately narrow the class of death-eligible defendants, creating an arbitrary and capricious application of the death penalty in violation of the Eighth and Fourteenth Amendments. We recently rejected this argument in Johnson, supra, 62 Cal.4th at pages 634 to 637, and Flinner offers no reason to reconsider that decision here.
“In assessing defendant‘s challenge to the amended lying-in-wait special circumstance, we are guided by the following constitutional principles. The Eighth and Fourteenth Amendments prohibit a sentence of death ‘imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.’ [Citation.] To satisfy this constitutional command, ‘the trier of fact must convict the defendant of murder and find
As we explained in Johnson, “in March 2000, the voters passed Proposition 18, which changed the definition of the lying-in-wait special circumstance from a killing while lying in wait to a killing by means of lying in wait, mirroring the language of the first degree murder statute.” (Johnson, supra, 62 Cal.4th at p. 634.) “[T]he voters’ purpose in amending the lying-in-wait special circumstance was to eliminate the temporal distinction between the special circumstance and lying-in-wait first degree murder . . . thereby expand[ing] the class of cases in which the special circumstance could be found true . . . .” (Id. at p. 636.) Nevertheless, we concluded that the amended lying-in-wait special circumstance comports with the Eighth Amendment because it “adequately distinguishes itself from other murders and does so in terms that are not so vague as to permit arbitrary determinations regarding the truth of the special circumstance allegation.” (Johnson, at p. 636.) As we have long held, the “factual matrix” presented by the lying-in-wait special circumstance — an intentional murder coupled with the elements of concealment, watching and waiting, and a surprise attack from a position of advantage — sufficiently distinguish it from ” ‘ordinary’ premeditated murder” (People v. Morales, supra, 48 Cal.3d at p. 557), such that it is “neither applicable to all murderers nor impermissibly vague” (Johnson, at p. 636). And, in Johnson, we reasoned that even if Proposition 18 had rendered the special circumstance identical to lying-in-wait first degree murder, the special circumstance would pass constitutional scrutiny because lying-in-wait murder “historically has been viewed as ’ “a particularly heinous and repugnant crime,” ’ ” which “provides ‘a rational basis for distinguishing those murderers who deserve to be considered for the death penalty from those who do not.’ ” (Johnson, at p. 637.)
Johnson likewise forecloses Flinner‘s as-applied constitutional challenge to the special circumstance. Like the defendant in Johnson, Flinner here contends that “because his liability for lying-in-wait first degree murder as an aider and abettor required a showing of intent to kill, there was no meaningful distinction between that theory of first degree murder and the lying-in-wait special circumstance in his case.” (Johnson, supra, 62 Cal.4th at p. 637.) This “is simply another way to state his facial attack on the statute” (Lewis, supra, 43 Cal.4th at p. 517), which we have rejected in part because — even were the special circumstance identical to the lying-in-wait first degree murder statute, as Flinner claims it is as applied to him in this case — it would not offend the Constitution.
10. Juror Misconduct
Based on information received from jurors after the penalty verdict was returned, Flinner moved for a new trial, alleging several instances of juror misconduct. The trial court held a multiday evidentiary hearing, at which numerous jurors testified, and denied the motion on the ground that no misconduct had occurred. On appeal, Flinner contends the
During trial, defendant Flinner‘s jury was sometimes referred to as the “Red” jury and codefendant Ontiveros‘s as the “Green” jury. In December 2003, after both juries had returned their penalty verdicts and had been excused, the trial court received an e-mail message from two members of the Green jury relaying assertions by Red Juror No. 1 about misconduct by Red Jurors No. 10 and No. 12.14 The messages also revealed that Juror No. 1 was interested in writing a book about the trial or her experiences as a juror and had been enlisting others in a possible group writing effort. The court provided the parties printouts of the e-mails in early January 2004. After investigation, Flinner filed a memorandum in support of his new trial motion alleging several instances of misconduct by Juror No. 1, Juror No. 10 and unspecified other jurors. The court set the matter for an evidentiary hearing in March 2004.
At the hearing, Juror No. 1 testified to the personal conflicts between her and Jurors No. 10 and No. 12 arising from what she saw as those jurors’ misconduct. Throughout the trial, Juror No. 1 asserted, Jurors No. 10 and No. 12 acted in a “manipulative” manner, “attempt[ing] on a daily basis to swing the other[,] older women over to their way of thinking.” During breaks in the courthouse hallway and cafeteria, they gave their opinion about the evidence the jury had just heard and, when anyone voiced a different view, “we were told how wrong we
Jurors No. 10 and No. 12 also put together a weekly invitational lunch group that eventually grew to include most of the jury. Juror No. 1 testified she was never invited but did not feel slighted because she knew that the group discussed the case over lunch and she did not want to violate the court‘s admonition against such discussions. After a while during the trial, the group around Jurors No. 10 and No. 12 would stop talking whenever Juror No. 1 approached them; Juror No. 1 understood that to be because they knew that she was taking notes on what they said and “they were talking about things they shouldn‘t be.”
Juror No. 1 testified she twice overheard Juror No. 10 say she had driven past the home of Flinner‘s parents on Harbison Canyon Road. The second time occurred after the wildfires in San Diego County in the fall of 2003; Juror No. 10 said she had to travel that road in order to visit relatives in the area.
Juror No. 1 also testified to remarks by Juror No. 10 suggesting a prosecution bias on her part. Juror No. 10 sometimes wore tight blouses and short skirts. Once, when Juror No. 1 and others told her the buttons on her blouse had popped open, she said she did not care, that she wanted her blouse open so that Flinner would look at her and she could tell him that she wanted him dead. Later in her testimony, Juror No. 1 said she actually observed Juror No. 10 mouthing “I want to kill you,” or “I want you dead,” at Flinner. “Many times during side bars, many times I would turn around,” Juror No. 1 testified, “and [Juror No. 10] would be doing it and . . . [h]er and 12 would be giggling about it.” Still later, Juror No. 1 testified
The tensions between Jurors No. 1 and No. 10 came to a head during guilt phase deliberations, when Juror No. 1 saw Juror No. 10 conferring privately with the foreperson. In what Juror No. 1 described as a “blowup,” she confronted them, and they said they had been strategizing about how to sway a holdout juror.
At the evidentiary hearing, Juror No. 1 acknowledged she had planned to write a book about her experience as a juror in a capital case. She kept extensive notes during the trial, in part with the book prospect in mind. She testified that she did not attempt to find a means of publication until after the trial, when she explored “tools on the internet that will allow you to do self-publishing with their assistance.” She also testified, however, that in September 2003, during the trial, she e-mailed a self-publishing service about the possibility of a loan, giving them an estimate of January 2004 as the date she would be ready to discuss further steps. She received a positive response from the company (her testimony was unclear as to the date), but she never actually received any money.
After the trial, Juror No. 1 began drafting a book and discussed the idea with former Green jurors. But in January, a stranger in a mall parking lot approached her and threatened unspecified harm if she kept “testifying.” This threat, together with some unexplained events at her home (hang-up telephone
Some of Juror No. 1‘s assertions were corroborated by other jurors. Jurors No. 10 and No. 12 admitted that during the trial breaks they joked about Detective Scully having a nice butt. Juror No. 3 and members of the Green jury corroborated Juror No. 1‘s testimony that Juror No. 10 sometimes wore short skirts and tight blouses. Green Juror No. 11 testified to seeing Juror No. 10 use a water bottle to mime oral sex during a court session, and Green Juror No. 10 testified that Juror No. 10 parted her legs so that Detective Scully could see up her skirt. On cross-examination, though, Green Juror No. 10 admitted he could not actually see up Juror No. 10‘s skirt and did not know whether Detective Scully could.
Generally, however, Juror No. 1‘s assertions of misconduct by her fellow jurors were not corroborated. Jurors No. 10 and No. 12 denied discussing the evidence at breaks or lunch during the trial; when they did talk about witnesses who had appeared, it was only to comment on their dress or speculate on how long they would testify. Other jurors agreed the hallway and lunch conversations did not involve the evidence, though Juror No. 7 recalled one occasion, early in the trial, when she began to talk about a witness in the hallway but stopped when Juror No. 1 reminded her of the admonition. Juror No. 10 denied having ever attempted to communicate with Flinner across the courtroom, and no other juror corroborated Juror No. 1‘s account. Juror No. 10 also denied having deliberately parted her legs in the direction of Detective Scully or anyone else in the courtroom or having made any sexual gesture with her water bottle. Juror No. 10 also denied having deliberately visited the
The trial court denied Flinner‘s new trial motion on factual grounds. Were Juror No. 1‘s assertions of misconduct correct, the court opined, Flinner would be entitled to a new trial. But those misconduct claims were “[a]lmost in their entirety . . . rejected, countered, rebutted and/or innocently explained by the rest of the jurors.” The court concluded Juror No. 1‘s antipathy for Juror No. 10, and her desire for the spotlight, had led her to engage in “grandiosity, puffery, hyperbole, gross exaggeration, speculation, flights of fancy, unsupported assumptions” and, where there was no more innocent explanation, “outright fabrication to further her own personal agenda.” The court based its credibility determination on the hearing evidence and the court‘s observations of the jury during trial. Had there been juror misconduct as frequent and severe as Juror No. 1 had asserted, “it would not and it could not have escaped notice by the court, court personnel, counsel for the parties and the spectators.” There had been “isolated violations” by the jurors of the court‘s admonitions, the court concluded, but none of a nature that “singly or in combination” substantially prejudiced the trial‘s fairness.
a. Asserted Misconduct by Juror No. 1
Jury misconduct serious and extensive enough to impair the fairness of the trial or deliberations may warrant granting a new trial motion. (
Flinner contends Juror No. 1‘s exaggerations and fabrications about her fellow jurors, viewed in the context of her plan to write a book about her jury experience, demonstrate a bias on her part. Her efforts to make her contemplated book more “entertaining,” he argues, show that “her literary project compromised her objectivity.” Moreover, Juror No. 1‘s lack of credibility, Flinner maintains, shows she misconducted herself in deliberations: “She exaggerated various claims of juror misconduct, and for the same reason would likely have exaggerated the evidence.” Finally, in a later section of his brief, Flinner argues alternatively that: (a) Juror No. 10 committed misconduct, as Juror No. 1 asserted; but (b) “if this court accepts the trial court‘s factual finding that Juror No. 1 fabricated her testimony, it must reverse because of Juror No. 1‘s perjury.”
We accept the trial court‘s findings regarding Juror No. 1‘s credibility. The contrary testimony of other jurors, as well as the tenor of Juror No. 1‘s own testimony, amply supports the conclusion that her assertions of misconduct by other jurors were the product of speculation, gross exaggeration, and perhaps conscious fabrication. We note, however, that the trial court did not specifically find any particular part of Juror No. 1‘s testimony to be deliberately false. No finding of perjury was made, and Flinner does not demonstrate by argument from the record that any such finding was compelled.
Although Juror No. 1 made unwarranted accusations of misconduct against others after the trial‘s conclusion, we conclude the facts do not demonstrate she committed
Flinner‘s assertion that Juror No. 1‘s book idea led her make her unfounded and exaggerated claims of misconduct is also unsupported by the hearing evidence. Rather, as the trial court found, Juror No. 1‘s claims appear to have been generated by her “palpable” antipathy to Jurors No. 10 and No. 12 and by her desire to be the center of attention.15 As far as the evidentiary hearing record discloses, Juror No. 1‘s plan to write
Flinner cites no authority suggesting that by itself a juror‘s plan to write a book about the case or the jury experience constitutes misconduct warranting reversal, and we have found none. It has been hypothesized that a juror‘s profit motive could lead the juror into controversial behavior “for the sake of making a story worth telling,” or into “strong-arming the other members of the jury into an inequitable result that makes for good copy or a profitable film deal.” (Note, Capote in the Jury Box: Analyzing the Ethics of Jurors Writing Books (2006) 19 Geo. J. Legal Ethics 643, 645; see Sims v. Brown (9th Cir. 2005) 425 F.3d 560, 577 [juror who discussed writing a book during trial did not commit prejudicial misconduct where “there is no suggestion that she had a financial interest in any particular outcome“].) In response to such dangers, California law prohibits offering or accepting a payment to a juror in exchange for information about a criminal case during trial or for 90 days after discharge (if the payment is greater than $50). (
Flinner compares Juror No. 1 to the hypothetical juror discussed in dictum in Dyer v. Calderon (9th Cir. 1998) 151 F.3d 970, 982, footnote 19, who “lies his way on [to the jury] because he secretly plans to write a memoir of the experience” and who, the court suggested, might then “vote differently to provide drama, or . . . inject personal prejudice into the jury room in an
b. Asserted Misconduct by Juror No. 10
Flinner contends Juror No. 10 “exhibited a clear bias by telling appellant she wanted him dead and by her personal infatuation with the lead detective.” He acknowledges that the trial court found untrue Juror No. 1‘s allegations in this regard but maintains that finding was unsupported by the record.
We disagree. The trial court‘s finding was supported by substantial evidence and was based on the court‘s assessment of the witnesses’ credibility. As such, it is entitled to deference. (People v. Nessler (1997) 16 Cal.4th 561, 582.) Juror No. 10 denied making hostile gestures or expressions to Flinner, and no other juror corroborated Juror No. 1‘s account. Juror No. 10 admitted making remarks about Detective Scully‘s anatomy,
Juror No. 10 may not have conducted herself with perfect decorum throughout the trial. But the trial court found she did not commit the misconduct Juror No. 1 attributed to her, and we uphold that finding as supported by substantial evidence.
C. Penalty Phase Issues
1. Competence to Stand Trial
Flinner contends the court erred, after the guilt verdicts were returned, in declining to suspend trial proceedings under
Defendant Flinner‘s jury returned its guilt-phase verdicts on October 16, 2003, but those verdicts were ordered sealed while codefendant Ontiveros‘s jury continued deliberating. In the early morning of Sunday, October 19, jail personnel found Flinner, in his cell, in what the trial court, paraphrasing the jail records, described as “an apparent state of physical distress.” Flinner was hospitalized and was discharged on the morning of Tuesday, October 21. Declaring that he had been told Flinner had attempted suicide, defense counsel moved to initiate competency proceedings under
At the hearing, the court and counsel reviewed Flinner‘s recent medical records. The court asked Attorney Mitchell whether, with the additional information in those records, he wished to give his view as to Flinner‘s present competency to stand trial. Although Mitchell and cocounsel Resnick had met with Flinner the day before the hearing, Mitchell did not indicate Flinner acted or spoke in a manner suggesting incompetence. Mitchell believed himself “on the horns of a dilemma” as both Flinner‘s attorney and an officer of the court; although he made no representations as to Flinner‘s mental condition, he believed the examination and hearing requirements of
The prosecutor observed that the medical records showed Flinner‘s blood pressure and pulse at the time of his hospitalization, while elevated, were within the range that might be seen for a man of his age doing an intense physical activity and that when interviewed on October 21 by a sheriff‘s department employee, Flinner denied any suicidal thoughts and stated, ” ‘I don‘t really know what happened to me.’ ”
Summing up the record, the trial court added that when interviewed, Flinner denied taking any drug, prescription or nonprescription, to excess, and that the court‘s own observations at the October 23 hearing showed Flinner to be apparently alert, not in physical distress, and conversing with counsel in an apparently normal manner. The court found scant evidence Flinner‘s condition on Sunday was the result of a suicide attempt, but even if it was, the evidence did not indicate incompetence to stand trial.
“The constitutional guarantee of due process forbids a court from trying or convicting a criminal defendant who is mentally
”
We agree with the trial court that there was insufficient evidence of incompetence to call for suspension of criminal proceedings and a formal inquiry into competence to stand trial. The exact nature and cause of the medical crisis Flinner suffered on October 19 was unknown. After Flinner‘s release from the hospital, he denied having suicidal thoughts or overdosing on any drug. Even assuming Flinner did try to kill himself in jail, it is not clear that was the result of any mental disorder; defense counsel pointed to nothing in the medical records so indicating. (See People v. Ramos (2004) 34 Cal.4th 494, 509 [preference for receiving the death penalty and hoarding of medication for possible suicide attempt do not indicate incompetence].) Counsel said nothing to suggest Flinner was experiencing any difficulty understanding the proceedings or communicating with the defense team; nor did the court‘s own observations give any indication Flinner was having problems following the proceedings or communicating with counsel. In the absence of substantial evidence of incompetence, the court properly denied Flinner‘s
2. Cumulative Impact of Errors
Flinner contends the errors and misconduct committed in his trial, considered cumulatively, deprived him of due process and a fair trial. We have found harmless the erroneous admission against Flinner of Ontiveros‘s statements detailing Ontiveros‘s killing of the victim (pt. II.B.7., ante) and the possibly erroneous admission of Flinner‘s letter to
3. Constitutionality of California‘s Death Penalty Law
Flinner contends several aspects of California‘s death penalty scheme violate the United States Constitution. We have considered and rejected these claims before, and we decline to revisit the following holdings.
“[T]he California death penalty statute is not impermissibly broad, whether considered on its face or as interpreted by this court.” (People v. Dykes (2009) 46 Cal.4th 731, 813.)
“The death penalty statute does not lack safeguards to avoid arbitrary and capricious sentencing, deprive defendant of the right to a jury trial, or constitute cruel and unusual punishment on the ground that it does not require either unanimity as to the truth of aggravating circumstances or findings beyond a reasonable doubt that an aggravating circumstance (other than
“Intercase proportionality review, comparing defendant‘s case to other murder cases to assess relative culpability, is not required by the due process, equal protection, fair trial, or cruel and unusual punishment clauses of the federal Constitution.” (People v. Winbush (2017) 2 Cal.5th 402, 490.) Flinner also refers in passing to the lack of “intra-case” proportionality review, but he does not argue his death sentence was grossly disproportionate to the offense committed or to the treatment of other participants in the capital crime. (See People v. Clark (2016) 63 Cal.4th 522, 642.) Given the evidence that Flinner, a mature man acting on his own initiative, organized and participated in a callous and cold-blooded killing of his fiancée purely for his financial gain, we would not, were the claim made, conclude his sentence is grossly disproportionate to his individual culpability.
Finally, “California‘s use of the death penalty does not violate international law either by punishing certain first degree murders with death or by employing the procedures defendant complains of above.” (People v. Rhoades (2019) 8 Cal.5th 393, 456.) “Defendant‘s argument that the use of capital punishment ‘as regular punishment for substantial numbers of crimes’ violates international norms of human decency and hence the
III. DISPOSITION
The judgment of the superior court is affirmed.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
GREENWOOD, J.*
Notes
At oral argument, defense counsel asserted that further defense complaints or requests would have been futile because the trial judge had disavowed any authority over jail confinement conditions. The record does not support this assertion: Though the judge indicated he would generally defer to the sheriff‘s department, he also agreed to make changes after defense complaints, and did not close the door to additional accommodations.