*1 3,May Crim. 25181. S004705. No. 1990.] [No. PEOPLE,
THE Plaintiff Respondent, MATTSON, DEE and Appellant. MICHAEL Defendant *11 Counsel Court,
Eric S. under Multhaup, appointment M. Supreme Kathy Chavez for Defendant and Appellant. General,
John K. Van de Attorney Steve Kamp, White Richard B. General, Iglehart, Jr., Chief Attorneys Assistant T. Edwart Fogel, Assistant General, Amerson, Attorney Andrew D. Susanne C. Wylie, William T. Attorneys
Harter, Borjon, and Keith H. Deputy Donald E. Denicola General, Plaintiff and Respondent. for
Opinion
22, 1984,
reversed a
EAGLESON, J.
judgment
October
this court
On
defend
the death
penalty, holding
conviction and sentence imposing
offenses,
murders,
unrelated sexual
related
ant’s confessions to
two
in violation of
he stood convicted had been obtained
offenses of which
I,
inad
Constitution and therefore were
article
section 15 of the California
Pettingill
Cal.Rptr.
(1978)
missible under People
[145
v. Fioritto
After a trial that on December the convicted began I, 14, 1978, wilful, deliberate, mur- July and premeditated ant of count Code, 187, circumstances of Cheryl (Pen. 189),1 special der of G. under §§ commission of during attempted rape murder committed the commission 261, and and lascivious conduct on a child under (former (2)) subd. lewd § 190.2, & (§ 288) (former (c)(3)(iii) (iv)), multiple of 14 subd. and age § 190.2, II, Cheryl murder subd. count of G. (former (c)(5)); kidnapping § (§ bodily injury (§ 12022.7); with intentional infliction of count 207) great IV, III, with Cheryl bodily injury; of G. with count lewd conduct rape great VI, 6, 1978, wilful, Cheryl bodily injury; G. with count great September of C. with special deliberate and first murder Adele premeditated degree commission during attempted circumstances of murder the commission or VII, murder; and count of multiple kidnapping of and kidnapping rape, X, 10, 1978, XI, C.; L.; Kiz count kidnapping Adele count of September XII, XIII, L.; 286); Kiz Kiz L. and count oral sodomy (§ count of rape Kiz L. (§ 288a). copulation 26, jury trial on December 1985. The returned a penalty began 8, 1986, January day after a
verdict of death on each murder count on 1All references herein to code sections are to the Penal Code unless otherwise indicated. law, by governed penalty this references to sections 190.2- Because case 1977 death repealed 190.4 are to former that were the November initiative death sections 4-14, (See penalty pp. 1256-1262.) law. Stats. ch. §§ 7, 1986, at time February on which Judgment deliberation. was pronounced on each murder count and to upper defendant was sentenced to death II, III, IV, and counts years three-year term of five with a enhancement on X, XI, VII; XII; and to the years to the term of five on counts upper years term of three on count XIII. upper (§ (b).)
This is automatic. subd. appeal Defendant’s contentions are that he was denied his under principal right I, article section of the California Constitution and the Sixth Amendment the United trial by jury States Constitution to drawn from representa- tive in community, cross-section of and that the trial court erred permit- of, ting relitigation admissibility of the and in his confessions. He admitting, claim; also asserts a double jeopardy denying error funds requested pur- evidence, 987.9; suant to section errors in ruling objections arguments instructions; failure to establish the delicti of corpus circumstances; certain special ineffective assistance trial counsel who of, on, failed move for severance separate trials three groups offenses; and error instructing jury. trial,
With to the respect penalty defendant claims error in admitting evidence regarding convictions; events underlying prior error permit- ting witness to be examined on future and error in dangerousness; ruling on the automatic for application modification of the verdict.
We conclude that none of these claims has merit. The judgment will be *13 affirmed in all respects.
I. Summary of Evidence A. Guilt Phase.
1. Cheryl G. Nine-year-old Cheryl G. disappeared from the lot of Santa Fe parking Springs High School in Angeles County July Los on Cheryl 1978. had been swimming with her older sisters briefly who had left her they while went to telephone their mother who was to Cheryl them was pick up. a
wearing two-piece swimming suit and a a pair thongs, and carried towel. a girl waiting at school saw high young Hispanic
The foreman plant he left 3:30 p.m. of the lot work at about parking near the when gate man, dark a beard. The man hair and long, date. He also saw with young defendant, much was in a car within feet of very sitting looked like who sides, had on the yellow orange, The car was mud streaks the girl. marks on side its top.
had brush the passenger 15, 1978, Lake Cheryl’s body July Legg region was found on of her Area. She was swim- top Whittier Narrows Recreation nude. neck, as of monofilament piece around her were a ming wrapped suit matter on the line and a Fecal was found cheeks of fishing “Handy Wipe.” by her caused thigh. asphyxia- her buttocks and the inner side of Death was injuries had suffered strangulation suffocation. She by ligature tion and/or hymen blows head. Her was not intact. consistent with to the he had investigators picked Defendant confessed to subsequently up School, in the lot of the Santa Fe girl parking Springs High Hispanic Lake, bushes, driven to had intercourse with then Legg girl line her neck. Informa- fishing her with belt and tied around strangled by investigators released ligature tion about the had not been to the public at the time defendant confessed. C.
2. Adele last seen alive mother on Sixteen-year-old by September Adele C. was her at 1978. Adele’s mother had her off 8:30 a.m. on a street corner dropped by Adele was to be friends her a give where who were ride to picked up job at a the Pacific Adele Highway. her motel on Coast part-time sweater, eyelet a white with a hooded multicolored wearing straps, blouse necklace. She jeans, and blue tennis shoes. She also wore shell did pukka day. to work report Adele’s remains were located in a wooded area in Duarte on November an officer who directions him Detective given followed Reed who was then Nevada. The cause of death could not be determined. The *14 necklace, blouse, eyelet shell a blue tennis body had a white and shoe pukka body. There was no on the on it. underwear Reed information location of
Detective obtained his about the Adele’s Cheryl defendant about the interrogating remains from while defendant G. killing, stating murder. Defendant volunteered information about this that 16-year-old a taken her hitchhiking, he had who was had to a picked up girl Freeway, Duarte with remote area of off the Foothill had intercourse her times, strangled and then her. L.
3. Kiz L., 10, 1978, lived in Seal Beach Kiz who 15-year-old On September and started hitch- Beach Huntington the bus to County), missed (Orange location to which her before reaching but hiking. up, Defendant picked U-turn, knife, and told him out told made going, pulled she had she was He yellow car. driving of the car. Defendant her to lock the door out, got saying he over and Freeway pulled where drove north onto the car, her, for he apologized When Kiz left the grabbed he had to urinate. her, her home. Instead to take away, threw the knife and
scaring promised Bar, walk forced her to leave car and he drove to an area near Diamond area, her him and and sodom- orally copulate raped a desolate forced to to her. going hang He told her he was ized her. then removed belt and however, he could kill her. Finally, away, he threw the belt saying buy She he beer. escaped stopped Kiz from defendant’s car when her, and identified as the who had assaulted person kidnapped he had kidnapped, she at the trial. Defendant confessed that and testified Kiz, kill and he had orally sodomized and intended raped, copulated her.
4. Evidence. Defense by establishing
Defendant his confessions that he discredit sought 20, 1978, M. falsely July murder Deanna in Riverside confessed to the He at the County. introduced evidence that he had been at work time of The prosecution tending offense. offered evidence rebuttal show only with the killer would be defendant’s confession included details which familiar. Penalty
B. Phase. 20, 1978, offered that on prosecution appellant evidence September the car L. when returned car in the lot entered of Sonia she to her parking He Community College of the North Las class. Vegas evening from es- money, demanded and drove into the desert where her. She raped from when he to the for city stopped gas. the car returned caped L. robbery, Defendant Sonia kidnapping, rape was convicted January 1979. 1, 1971, Evidence of of Jeanette K. August kidnapping rape and her brother Oregon up also Jeanette Joe presented. younger picked defendant, they When over because defendant hitchhiking. pulled who was
842 out, knifepoint, the car at forced Joe from defendant get he wanted to
said area off the into a wooded drive on and to pull Jeanette to and ordered her. freeway raped where testi- in the form of expert defendant evidence was offered
Mitigating from suffering schizophrenia as diagnosed had been mony that defendant and the deprivation experiences;2 traumatic childhood major attributable to that identity child; history problems of sexual suffered as a abuse he had child, abuse; exemplary and of his drug and him “cross-dress” as led 1984, received time defendant which during from 1980 to prison behavior drugs. psychotropic
II. Jury Selection A. Underrepresentation. Constitution and of the United States
Both the Sixth Amendment I, a defendant the guarantee Constitution section 16 of the California article of the from a cross-section jury representative to trial before a drawn right 690, 522, 528 L.Ed.2d 419 U.S. community. (Taylor (1975) Louisiana [42 696-697, 525 v. Bell 692]; (1989) S.Ct. 95 [262 wheels, jury mandates that “the P.2d That 129].) guaranty 778 names, not are drawn must juries or venires from which pools panels, fail community thereby in the distinctive systematically groups exclude at U.S. at L.Ed.2d (419 p. thereof.” reasonably to be representative mirror the actually tries the case need itself jury that 703].) petit p. however, exemptions are free to reasonable permit and states
community, juror. as a ability relevant to the to serve prescribe qualifications and to (Ibid.) jury to the selection challenge procedure a fair cross-section
When made, facie demonstrating prima burden of bears the initial show: “(1) To do so he must fair cross-section requirement. violation of the in the commu a ‘distinctive’ group to be excluded is group alleged juries in venires from which of this nity; group (2) representation such to the number of fair reasonable relation are selected is not is due to this community; underrepresentation in the persons (Duren jury-selection process.” systematic group exclusion S.Ct. L.Ed.2d U.S. Missouri trial, insanity, prior was withdrawn guilty by entered to the first pleaA of not reason of before the retrial commenced.
843 was is one that objects which defendant jury process The selection at the districts existed judicial 11 County in which Angeles to Los peculiar the from jurors those districts summoned trial. Each of time of defendant’s of 203 of the Code area, section with former but in surrounding compliance more to a courthouse juror assigned was no prospective Civil Procedure District, Central Judicial The or her residence.3 20 miles from his than districts, drew outlying do the jurors of than needs a number greater which the that of 20-mile limit overlapped Because its or wheel first. pool from a drew from more court the Norwalk (Norwalk), Judicial District Southeast the area within that while area. Defendant’s evidence established restricted Blacks a of high population 20-mile radius of the Norwalk courthouse the Norwalk area from which of the smaller Hispanics, population and 1985, In the Black population White.4 jurors court drew was predominantly of Blacks 16.3 but the region percent, percentage of the 20-mile was in the Hispanics 3.2 The of only percentage venires was percent. Norwalk 34.8, only 15.1 of the venires.5 they percent but constituted region same testified, however, that no disparity The director services county’s jury of in the and on of Blacks population existed with respect percentage venires, judi- at the countywide or jury perspective Norwalk from either latter, in and October of cial level.6With to the respect September district Black, 1985, duty in Norwalk were jurors 3.6 of the for percent appearing Black of the Southeast Judicial District was 2.9 while the population percent. 40.8 jurors, that Hispanic
The same witness also testified with respect county the Southeast (and of the percent Hispanic population 3 1988, (Stats. ch. repealed in 1988 Former section 203 of the Code of Civil Procedure 1245, eligible qualified pro 1). provides: “(a) persons The All are to be current statute § jurors, following: spective except trial they “(4) jurisdiction are Persons who are not residents of the wherein summoned serve.” 4 presented indicated that of 700 census tracts within the 20- The evidence radius, jurors during period prospective mile 504 sent no to the Norwalk courthouse the 1985 expert. jurors. percent sup the census tracts studied One tract sent 57 Almost of jurors provided jurors White plied no to Norwalk. Those tracts that were areas. tracts, 4,300 only Angeles County 173 are in has census of which the Southeast Los itself Judicial District. 1982, years disparities percentage In Similar for earlier were also demonstrated. 1979, 6.2; percent. percent; 7.4 and in 5.1 In Blacks on Norwalk venires was venires; percent; percent. Hispanics comprised percent 10.6 13.6 and in county jury services to sur On motion of defendant the court had ordered the director 4, 1985, July vey jury pool in the Southeast Judicial District for the 1985—October survey jurors period. profile prospective requested information was to obtain education, sex, status, family origin, occupation, regarding age, race ethnic marital income. *17 citizens, the presumptively jury-eligible not and that District)
Judicial were no 20.5 found only expert Defendant’s population percent. Hispanic for conclusions. other than these speculation basis jurors assigning that the method of prospective
Defendant contends constitu jury at the time his was selected caused to the Norwalk courthouse on the of Blacks and tionally impermissible underrepresentation Hispanics venires. un- are “distinctive” is disagree. groups
We That Blacks Hispanics His satisfy Duren however. prong, Defendant fails to the second disputed. within 20-mile of the Norwalk
claim assumes that the area radius whose “community” rep- courthouse is the relevant against population held, recently We of is be measured. have groups resentation cognizable cross-section contrary community to this the relevant for assumption, Cal.3d judicial (Williams (1989) is the district. v. Court 49 analysis Superior 736, 503, not 537].) 745 781 P.2d Since the record does Cal.Rptr. [263 used for community demonstrate a when of this disparity population has facie violation prima not established comparison purposes, guaranty. of the cross-section
B. Error. Witherspoon-Witt a fair and trial also guaranty Sixth Amendment impartial in jury jurors case those who express exclusion from precludes capital objections religious to the death or conscientious or scru general penalty, 510, 522 (1968) its v. Illinois U.S. against (Witherspoon infliction. 391 ples 784-785, 776, may 88 S.Ct. A be 1770].) juror L.Ed.2d prospective [20 excluded for cause if his views the death “would regarding penalty prevent substantially his duties as a accor performance juror or impair v. 448 U.S. dance with his instructions and his oath.” Texas (Adams (1980) 38, 581, 589, 45 100 2521].) L.Ed.2d S.Ct. [65 standard,
In to consid- juror’s this applying prospective unwillingness clarity.” er death not with “absolute penalty appear need imposition voir dire “the trial is left with enough following jury judge It is faithfully be impression prospective juror the definite would unable the law.” v. Witt 469 U.S. impartially (Wainwright (1985) apply 841, 852, 105 S.Ct. This standard is also 844].) applied L.Ed.2d [83 I, 16 of of an excuse for cause under article section assessing propriety 48 Cal.3d (People the California Constitution. Hamilton Ghent 730]; People Cal.Rptr. P.2d his effort restricting trial court erred claims that the Defendant re jurors whose further examination prospective “rehabilitate” capital views regarding their inquiry regarding on voir dire to sponses Defendant does them for cause. the court excuse led punishment dire, that, under the court erred during voir on the record made contend state stan proper understood to which was then Witherspoon, either Witt, dard, only that the court the test. He claims which has since refined *18 jurors to examine the unreasonably him the further denied opportunity they about capital punishment. after reservations expressed jurors
The and to select a fair duty to examine prospective court, counsel must be jury duty although on the imposed is impartial jurors. Civ. (Code examine the prospective reasonable to given opportunity Proc., 223, Code, may Pen. former Counsel conduct (a); 1078.) subd. § § for a for jurors challenge that voir dire to determine the basis of prospective 144, 184, 711 Cal.Rptr. cause. v. Balderas 41 Cal.3d 182 (People (1985) [222 dire, 480].) right P.2d In the voir this includes examination general they jurors legal about their attitudes toward doctrines prospective specific may be called When a form a of a may (Ibid.) to bias that basis upon apply. dire, may for such voir counsel
challenge during opposing cause appears dire, seek to rehabilitate the but further voir like that prospective juror, this bias, at directed to to reasonable limitation the discre uncovering subject the tion of trial judge.
Here the we deal with death qualification process seques 1, tered voir v. 28 80- Hovey (1980) dire mandated Court Cal.3d Superior 128, 81 1301], 616 The need Cal.Rptr. only question P.2d court [168 resolve during stage any juror this the voir dire is whether prospective has such or conscientious about religious scruples capital punishment, abstract, substantially that his views would or “‘prevent impair performance of his duties as a with his juror accordance instructions ” 420, Witt, oath.’ v. (See Wainwright 469 U.S. at omit supra, p. italics Texas, 38, ted v. 45 L.Ed.2d at Adams U.S. p. [quoting supra, [83 849] ante, 581, Clark, 583, L.Ed.2d (65 v. 589)]; People Cal.Rptr. 596-597 [268 Clark, P.2d As we v. at this 127].) People page noted supra, if, qualification” only “death voir dire to of his seeks determine because on capital any juror against views would vote punishment, prospective penalty regard (Wainwright death without to the evidence at trial. produced Witt, at v. p. 846-847]; 469 U.S. L.Ed.2d at pp. People [83 Adcox 47 Cal.3d Cal.Rptr. defendant,
The question whether or not posed hypothetical, not relevant death had each qualification. jurors to who were excused inability imposition to vote for clearly unwillingness an
expressed death penalty.7 for the death clearly inability vote juror expressed
When a
has
trial,
court
may
that
at
produced
of the evidence
be
regardless
penalty
juror
further
dire directed toward persuading
has discretion
limit
voir
has
that
be
which he
not considered
may
there
some circumstance
moral attitude toward the
modify
him to
his conscientious or
could cause
357-358
death
Fields
(People
penalty.
803,
We here. In the three instances find no abuse of discretion of, juror if the would be able sought ask plained prospective beyond if a reasonable doubt penalty proved the death impose if inmates or other pose danger guards the defendant would *19 penalty, in vote for less Juror had stated that she did not believe the death and would D. allegation a in order to avoid degree special than murder to find circumstance false first reaching phase. parole of was penalty option possibility When the to vote life without the for guilty degree first murder and could explained, she stated that she could find the defendant of court, by response subsequent special question vote to however, a true. In to a the find circumstance by prosecutor “I never vote verdict When the she said: would for a of death.” asked your objection “saying regardless if of of she was the evidence because conscientious would, case, you every automatically imprisonment penalty, in vote for life with to death death,” parole replied: possibility of and never for a verdict of she “That’s out vote correct.” penalty, in vote Juror C. had also stated that she did not believe the death would refuse to true, degree special allegation a or to and would for first murder verdict find a circumstance automatically imprisonment ques- possibility parole. vote for life without the of Additional answer, by would automatical- tions were asked defendant’s counsel because another that she death, ques- ly the court’s vote for was inconsistent and indicated that she was confused explained, option parole of was she possibility tions on voir dire. When the of life without allega- degree special said she could vote for a first murder verdict and to find circumstance attempt regarding to her that she question tion true. made no further her statement Counsel automatically imprisonment pose hypotheti- attempt would vote for life other than the to question. being placed to cal The court him that no limit was on his effort rehabilitate assured juror People’s objection sustaining specific question, than prospective other to key stating question the defense wishes opportunity, but declined the “that’s the ... counsel to ask on rehabilitation.” penalty vote some- Juror F. stated that she did not believe in the and would for also death allegation thing degree special to end other than first murder or to find circumstance false She, too, question. agreed option life penalty that if she had an to vote for the death then parole, degree verdict find a possibility without of she could vote for a first murder and to true, by stating special allegation displayed that she would circumstance but she confusion automatically imprisonment. for and for vote death life Then, clarifying agreed, response question that would she in defense she after to counsel’s pen- strong if imprisonment, vote for life defense counsel asked she had views about death inquiry alty replied: “Religious Again, other to she counsel made no further which belief.” hypothetical juror once attempt question. than an to ask This was excused after she the same every saying again “yes” prosecutor’s inquiry if responded that she “would she automatically impose possibility parole and would imprisonment case vote life without of never for a verdict death.” vote When the of parole. possibility life without imprisonment sentenced the opportunity defendant declined objection, court sustained People’s made no attempt jurors of the prospective conduct further voir dire to vote for willingness their regarding general inquiry to make a more defendant that the they if were satisfied of the death penalty imposition community. (See to the danger future crimes and thus pose commit might 1106- L.Ed.2d 463 U.S. v. Estelle 896-905 [77 Barefoot 3383].)8 103 S.Ct.
C. Denial Funds. motion, made to section pursuant
The trial denied defendant’s court 987.9, In of his jury an selection. support for funds to employ expert in jury that the expert motion defendant had claimed assistance in select be because counsel lacked experience selection should authorized Hovey v. established juries process under the death ing qualification Court, nature of the 1; inflammatory charges 28 Cal. 3d Superior counsel had been eco difficulty selecting jurors; increased the impartial in other and the cost of an expert nomical of trial phases preparation; was a engage psychologist experi modest. expert hoped enced in He funds not assisting juries. sought counsel the selection of only during for but for the of the pretrial expert also services preparation, jury selection. The trial court denied the that the services application, ruling reasonably necessary of such an to the expert preparation were not defense or to full and fair provide a defense.
Section 987.9 commits to the sound discretion of the trial court the ancillary determination of the of an for funds for reasonableness application discretionary services. Although high a standard must be to such applied in v. (see decisions cases Keenan Court Cal.3d capital Superior 430-431 108]), there was no abuse of attorney discretion in the ruling. trial court’s Counsel was an experienced who had The under represented during the first trial. assumption lying Hovey is that the untoward effects of death procedure qualification Court, (Hovey voir dire will be v. 28 Cal. 3d at minimized. Superior supra, 80-81.) Defendant not demonstrate lack of in con pp. experience how did ducting Hovey ability voir dire under the was relevant to his to procedure identify jurors subject who were or were to excuse for prospective qualified cause.
None of ancillary the other factors for funds supporting request concluding “reasonably establishes basis for that such funds were 8We in need not decide here whether there must be reason to believe that the circumstance juror may imposition penalty present which a to would consider of the death be the case be Fields, 329, 357, (See People 12.) supra, tried before him. v. fn. of availability and other economies counsel
necessary.” expert case in this so Nothing charges not relevant about question. are sexual it from cases in which distinguishes capital noncapital other cases impartial are as to conclusion selection of charged compel assaults not an jurors unusually request would be difficult. Denial of the abuse discretion. III.
Guilt Phase Issues A. Admission of Defendant's Confessions. 3, 1978, in Vegas, on October North Las Ne
During interrogation vada, L. defendant confessed that he had Kiz On November raped Cheryl and murdered G. and a kidnapped,
he confessed
he had
raped,
later
who was
identified as Adele C. We reversed the
convictions
girl
prior
the record of the first trial indicated that those confessions were
because
custody
made while defendant was in
initiated
response
interrogations
silent
right
officers after defendant
invoked
to remain
police
admissibility
We
to counsel.
held that California law determined the
confessions, and that
confessions were inadmissible under
defendant’s
I,
Const.,
(Cal.
15)
California
self-incrimination
art.
privilege against
§
Pettingill,
construed in
At the
of defendant
have taken
notice of the
request
sought
the first trial to ascertain the nature of the
which he
procedure
That
Motion
exclude his confessions.
record reflects
“Notice of
November
Evidence De Novo 1538.5 Penal Code” filed on
Suppress
statements,
In that
all
suppress
1979.
motion defendant
sought
admissions, and
he had
confessions
made
connection with the offenses
*21
had
to
this matter on
that
been made
induce
charged
grounds
promises
confess;
he
by
him to
that the
knew was
interrogating
represented
officers
counsel
from counsel
sought permission
counsel but neither notified
nor
right
in the
that after he had asserted his
Nevada
and
appointed
proceeding;
counsel
North Las
Nevada Detective Pat
during
Vegas,
to
questioning
Reed,
officer,
in interroga-
Detective
a California
Dingle,
participated
This,
his
under
leading
argued,
rights
tions
his confessions.
he
violated
231,
Pettingill,
California law as declared in
v.
21 Cal.3d
and
People
supra,
Fioritto,
In his motion defendant also “items found suppress bile,” because it claiming that the search his automobile unlawful search, his consent voluntary consent result of a free and was not the that He argued to counsel. right after he had asserted given been having right Amendment of his Sixth in violation the consent was obtained counsel, “tainted” authority, and was made in submission to unlawfully obtained. had been alleged statements 11, 1979, was permit- the motion defendant hearing on
At the December evidence suppression the motion to include ted to expand scope The trial court stated body of the of Adele C. regarding observations in a motion have been raised the effort to the confessions should suppress that the matter stipulated Evidence Code section but the People under defendant would be permit- be heard at that time. The court then ruled that in the on the admissibility hearing of his statements litigate ted to 1538.5 section motion. Relitigation.
1. Propriety of admissibility of the confes- relitigate were People permitted trial, evidence, at had not been sions the second and introduced which trial, at at the first that the defendant initiated the interviews presented objection which he confessed. The court overruled defendant’s issue could not be and that no evidence on the issue could be relitigated, new considered. The were confessions admitted.
Defendant now claims that the trial court erred in permitting relitigation issue; of the based on equitable relitigation estoppel principles preclude facts that are in the inconsistent irreconcilable with facts established initial and that due reliti- hearing; process presumed prejudice preclude gation delay. based on new facts after a substantial
We find no merit in these claims. A reversal of a without judgment 1262.) directions is order for a new trial. “An reversal (§ unqualified remands the cause for new trial and in the trial court parties places the same as if the cause had never been tried.” position (People Murphy (1963) 59 Cal.2d 382 P.2d “The Cal.Rptr. granting of a new trial if had been places the same as no trial parties position . . .” had. (§ 1180.) accusatory
That status even amendment pleading (see permits v. Chadd as well as 837]), objec- renewal and reconsideration of motions pretrial *22 tions to the admission of evidence. v. 59 (See, e.g., People Murphy, supra, 833-834.) statutory relitigation, Cal.2d at Absent pp. provision precluding made by rulings the or order the court that stipulation parties, prior 850 trial, objections new must be made at the binding
in the trial will be prior Code, court must consider (Evid. 353), the the of evidence admission § Bell, v. (See People is offered. admissibility of evidence at the time it the that 963, Jennings 46 Cal.3d 520-521; (1988) v. People Cal.3d at supra, pp. 49 278, 975, rulings In are not 475].) 760 P.2d limine fn. 3 Cal.Rptr. [251 Cal.Rptr. 44 912-913 v. Cal.3d binding. (1988) Williams (People [245 336, 751 P.2d 395].)9 his confession claim that our determination that
Defendant’s of case” trial “law the been excluded at the first constitutes the should have as the law The the trial court lacks merit. law-of-the-case doctrine binds of an only rehearing if evidence on retrial or but controls the outcome the ruling that which the substantially upon appellate issue is the same as v. P.2d Erlin 99]; v. 51 608 (1959) based. Carswell Cal.2d (People [335 P.2d (1936) 756].) Co. 7 Cal.2d National Union Fire Ins. [61 only as ruling to this court’s insofar applied prior law-of-the-case doctrine admissibility law the of the confessions. governed we held that California determination, in its based did that depart ruling The trial court not from evidence, new the confessions were admissible. on that the his motion to exclude argues
Defendant also because of a to section pursuant confessions at the trial was motion made prior part 1538.5, statutorily admissibility of the confessions relitigation admissibility may relitigation barred. Section 1538.5 preclude as the search or seizure sought product evidence be suppressed v. (See rights the defendant’s under Fourth Amendment. violated Here, 177, 605 1306].)10 Brooks P.2d Cal.Rptr. Cal.3d however, bases included Fifth and Sixth Amendment for exclu motion. sion of his in a section 1538.5 confessions only used to exclude evidence obtained properly
Section 1538.5 is (Fourth Amendment) right of a state federal violation defendant’s and/or contrast, By admissibility prior ruled of evidence appellate when an court has on prohibition, ruling of the opinion proceeding in a becomes the law trial mandate Shuey ensuing appeal. (See People during case 13 Cal.3d trial properly suppress effort to his confessions not 10.Becausewe conclude that defendant’s 1538.5, brought the limitations pursuant to we need not decide whether in a motion section relitigation admissibility result unreasonable search on of the of evidence obtained as a of an relitigation prior preclude and seizure to a retrial. prosecution to adoption question right did Prior of section 1538.5 we admissibility allegedly challenged of an unlaw- reopen question of of evidence basis Carswell, 602, 608.) (See, e.g., People ful search and seizure. *23 may procedure the Although search and seizure.11
to be free of unreasonable search an unlawful product that are the of be to exclude confessions used unlawfully ob seizure, a confession was and the of whether question admissibility of in order to rule on the be decided the court may tained confession, section a result of the evidence that is as discovered physical on grounds and confessions not be used to admissions may suppress 1538.5 Amendment Sixth Fifth Amendment they are the of product and/or 729, 733-734 Superior (Zolnay) Court (People violations. that when a Zolnay does not hold L.Ed.2d v. Arizona 384 U.S. (Miranda
Miranda violation in on a section hearing is found a 974]) 86 S.Ct. A.L.R.3d motion. The as of that may 1538.5 the confession be suppressed part motion to be that rule since the evidence would not statutory language support a result of and seizure.” must have been “obtained as a search suppressed and admissions Here defendant to exclude confessions sought solely they right against on the were obtained violation of his ground they He did were self-incrimination and his to counsel. not assert that right of an unlawful and seizure. his self-incrimina product Although search tion claims had decided in order rule on the of his part and counsel to be car, obtained in the search of his sought motion exclude evidence only that latter of aspect properly brought pursuant the motion clearly 1538.5. The trial aware of bases for the section court was the distinct however, confessions, the admissi having to exclude stated that attempt bility Evi of the confessions be in a litigated pursuant should motion 402.12 dence Code section sought ruling whether defendant to obtain a
Regardless improperly however, 1538.5, exclusion in the motion made to section basis pursuant provides pertinent “(a) may 1538.5 return part: 11Section A defendant move for the of property suppress any tangible intangible thing as of or evidence or obtained as a result a following grounds: search on either or seizure of “(1) The search or seizure without warrant was unreasonable. “(2) (i) The search or seizure with a the warrant warrant unreasonable because is face; (ii) property insufficient on its rant; or evidence obtained is that described in the war- warrant; (iii) probable (iv) exe- there was not cause for the issuance of the the method of any standards; (v) cution of the warrant violated federal or state constitutional there was oth- er violation of federal or state constitutional standards.” “(a) preliminary disputed, 402: Evidence Code section When the existence of fact is its provided shall be existence or nonexistence determined as this article. “(b) may admissibility question The court hear and of the evidence out of determine action, presence hearing jury; or of the but in a criminal hear and deter- the court shall admissibility question mine the of a confession or the defendant out admission of presence jury hearing any party requests. if so “(c) ruling admissibility implies finding prerequi- A on the evidence of fact is whatever thereto; unnecessary separate finding site formal unless required statute.” *24 852 that there was the confessions admissible was
on which the trial court found court The Fifth Amendment nor a Sixth Amendment violation. neither a initial that defendant’s its conclusion on a factual determination based but rights, his was not an invocation of Dingle refusal to to Detective speak While court Ely.13 the still in this to discuss case while preference not conclusion, because of exclusion was required a different we held reached and his to against right the of self-incrimination right violation his apparent Mattson, to The effort pp. 89-92.) v. 37 Cal.3d at (People supra, counsel. of 1538.5 subject not a section
exclude the confessions was properly as this treated it such. motion and neither the trial court nor court Therefore, of a relitigation the trial was not section hearing the at new 1538.5 motion.14The trial at the second trial concluded judge properly the the had been a com- prior admissibility the on of confessions hearing 402 We hearing. agree. bined section 1538.5 and Evidence Code section should have been denied relitigation We are not persuaded Delays the normal delay. appellate pro because of that are the of product difficulty cess due The wit locating do not concerns. implicate process nesses, recollection, re fading and the are no different with possibility of the than with spect admissibility respect to on the confessions hearing to a defendant’s delay to the trial itself. As with claims of violate alleged trial, are delays appeal to because normal attributable to right speedy delay potentially not should be considered purposeful, unavoidable and are only when it occurs after issuance of the remittitur prejudicial appel late v. Powell 40 145 (See People (1974) Cal.App.3d court. [115 109].)15 Cal.Rptr. admissibility
Since there was no bar to new on the hearing confessions, evidence of who initiated question and additional on heard, the trial compel interviews was the law-of-the-case doctrine did not insufficiency Except court to exclude defendant’s confessions. where was the basis for rever judgment the evidence to sustain a of conviction sal, relitigation (see in which double jeopardy preclude case considerations 2141]; 437 1 S.Ct. Burks v. United States U.S. L.Ed.2d 98 13 Ely pick ad Dingle up that when he arrived in defendant he Detective had testified Arizona, (Miranda 436) rights supra, vised v. and asked defendant of his Miranda U.S. speak speak to an if he wanted to him. Defendant did not state that wanted defendant attorney, but said he did “want to talk at that time.” not parties agree ruling determinative of pretrial did that the at the second trial to be confessions, admissibility any bearing barring matter of the statements and unforeseen arising at issue trial. memories, only inability fading pointed to locate wit Other than two investigator lineup. attempted the 1978 His to locate those witnesses until nesses to confessions, day hearing admissibility prior to the on the however. 468]), v. Green the determination of questions doctrine is inapplicable
law-of-the-case the basis of new 842) 13 Cal.3d at decided on Shuey, p. fact (People (People reversal on following appeal. evidence in a new trial or different *25 785, 176, 681].)16 454 P.2d 71 Cal.2d 182 (1969) Cal.Rptr. Hamilton [77 Ruling Admissibility. 2. on in were obtained
Defendant that his admissions and confessions argues Arizona, 436, v. 384 U.S. and violation of his under Miranda rights supra, 378, 1880], v. 451 L.Ed.2d 101 S.Ct. (1981) Edwards Arizona U.S. 477 [68 Fioritto, 714, v. Pettingill, v. 68 Cal.2d and supra, People as well as 21 231. Cal. 3d supra, of defendant’s only regard
The
claim
before us with
to violation
properly
I,
article
section 15 of
against self-incrimination is that based on
privilege
the California
and his
at the
argument
Constitution. Defendant’s motion
only
on that motion at the first and second trials relied
on the
hearings
theory
any
that under California law
even
officers other
interrogation,
than those with
he
Nevada
charge
whom had refused to discuss the
offenses,
even about unrelated
once he had invoked his
impermissible
to remain silent. He
right
did not make the claims
forth on
put
appeal
the manner which his constitutional
were
failed to com-
rights
explained
Arizona,
with Miranda or that
v.
ply
interrogation
violated Edwards
477,
451
supra,
Oregon
U.S.
v. Bradshaw
A judgment will not be reversed on
that evidence has been
grounds
erroneously
objection
admitted unless “there
of record an
to or a
appears
16
“equitable”
jeopardy
estoppel
Neither constitutional nor
double
nor collateral
consider
relitigation
admissibility
ations bar
in this
The former
defendant’s confessions
case.
only
apply
prior
guilt
to a
determination of
or an issue of ultimate fact when a defendant has
acquitted
(Ari
support
been
or the evidence has been held to be insufficient to
his conviction.
164,
Rumsey (1984)
2305]; Bullington
zona v.
v.
motion to exclude or
..
. .”
or motion
ground
objection
specific
as to make clear
stated
353,
Code,
both to
added.)
required
Italics
(Evid.
(a).
Specificity
subd.
§
objection
ruling
on motion
enable the court make
informed
the defect
the evidence.
the evidence
cure
to enable the party proffering
853,
768 P.2d
Cal.Rptr.
v.
48 Cal.3d
Wright (1989)
(People
[255
Williams,
claims
906.)
Miranda-based
Cal.3d
72]; People
rule
a defendant must make
are
this rule. “The
is that
general
governed
at the trial level
order
raise
objection on Miranda
specific
grounds
v. Milner
Cal.3d
Miranda
(People
claim appeal.”
542, 548
Rogers (1978)
Defendant’s motion
made,
induced
of
they
voluntarily
having
promises
been
were
treatment,
his
to counsel had been violated.
right
and that
psychiatric
claims,
basis or bases for those
identify
did not
constitutional
motion
due
of
guaranties
reliance on the
process
but the authorities cited implied
the Sixth Amendment.17 These
and
Constitutions and on
federal
state
sufficiently
appeal.
issues for
objections
preserve
were
specific
in
trial
self-in
identify
failure to
court
Notwithstanding defendant’s
violation
v.
alleged
People
those based on
of
crimination theories other than
Fioritto,
714,
231,
v.
68 Cal.2d
21
3d
and
Pettingill,
People
supra,
Cal.
supra,
confessions,
We
his
we
them here.
do so
fore
for exclusion of
consider
on those
later
failure to
his motion
predicate
stall a
claim that trial counsel’s
constitutionally
inadequate representation,
grounds
additional
reflects
only issues of law
in
case the new theories raise
because
the context
this
v.
(See People
court decides independently.
and factual
that this
questions
441,
714].)18
444
(1974)
Cal.Rptr.
Carr
43 Cal.App.3d
[117
17
rejected
interrogation
with
this
identical claims
Defendant conceded that
court
matters,
pending
in other
but before formal
representing
out notice
counsel
a defendant
subject
right
His
interrogation,
to counsel.
charges have
filed in the
violated
been
511,
Cal.Rptr.
Wong (1976)
People v. Duck
a. Dingle Interview: 1978. September Defendant argues that violations of his rights which his state- preceded ments to North Las Vegas Detective Pat all Dingle necessarily tainted the admissions and confessions he made subsequently. Defendant claims that both Miranda violations and a violation of his to counsel render right his statements to Dingle inadmissible. Basic to defendant’s claim that his counsel, confessions were obtained violation of his right to is an argu- ment that a deputy public defender who observed a which lineup preceded *27 defendant’s initial waiver of his rights was to present represent, and did represent, defendant.
i. The evidence. The of the ruling trial court that defendant’s statements to were Dingle not obtained in violation of his Miranda and rights were admissible was based on the evidence. following Creek,
Defendant was arrested at the home of his grandparents Cherry Nevada, 22, 1978, Robison, on September by Archie the sheriff of White Pine (then Ely) County, Nevada. Defendant was arrested aas in a suspect and sexual kidnapping assault that had days occurred two earlier at the North Vegas Las Community After the College. arrest Sheriff Robison silent, advised defendant of his right to remain that anything he said could him, and would be used against that he had a right lawyer to consult with a and have one present while being questioned, lawyer and that a would be appointed for him any before if questioning he wished to have one. Defend-
ant acknowledged that he understood his rights, but he was not questioned and said nothing any booked, about offenses at that time. While being People were opportunity present denied the possibly dispositive newly to evidence on the raised issues.
however, how he had been identified. Sheriff Robison defendant asked arms, “I defendant said: tatoos on defendant’s When the sheriff mentioned made. No statement was didn’t think she saw those.” other and Las Ely, Vegas held in Nevada for North police, Defendant was Pat North Las Dingle, on 1978. Detective released to them September officer, de- custody took King, and his Detective Vegas police partner, to silent. right defendant “that he remain Dingle fendant. advised and be used him in a court against That he said could would anything if he so attorney an to prior being questioned, law. That he had to right to him attorney, one would be appointed desired. If he could not afford courts, attorney during had a have an present and he right [sz'c] When any again acknowledged understanding. Defendant questioning.” an attorney present, asked defendant if wanted to talk without Dingle him. and attempt Dingle defendant “no.” No was made replied, question Las where he booked into custo- King Vegas drove defendant to North 25. No him after dy. question booking made attempt September Dennis of the On the Detective Branch morning September Branch was then Huntington Department telephoned Dingle. Beach Police Las Kiz L. He asked about the North investigating kidnapping. Dingle and as as Vegas Dingle’s report, photo- well kidnapping requested copies fingerprints appeared and of defendant. On afternoon graphs attorney in a of both district Dingle had notified offices lineup. of the He “as a of routine to see lineup. policy defender did so matter
public they lineup.” down representative whether or wanted send as did Deputy Public Defender Gubler attended observed lineup victim North attorney. Vegas district Las deputy kidnapping as her at lineup. assault identified defendant assailant this *28 As the in the were and Dingle five escorted participants lineup being to from the to the defendant held back and said King lineup jail, room like that he had to take Dingle, you.” Dingle responded “I’d to talk to 15 to everybody jail “shortly.” to the and would see defendant About later, jail, the the finish- minutes after to and returning lineup participants business, to a jailer bring his asked the to defendant ing lineup Dingle area, an room holding Dingle from which escorted defendant to interview his again, in the bureau. He then defendant of rights detective advised he said him “that he remain silent. That telling right anything had to be in a law. That he had the could and would used him court of against desired, if he attorney to an to if he so and right prior being questioned, courts attorney, couldn’t one be him appointed afford would [sz'c] understanding at no cost to him.” After defendant acknowledged and if to them speak he wished waive rights, Dingle those asked defendant said he did. attorney.” without an Defendant Dingle to “now was told it asked where defendant’s car was and Dingle Defendant then found in the been about clothes Dingle had asked defendant impounded. the Nevada Dingle said his and if they
car. Defendant were asked him. told that she had victim had identified defendant kidnap/rape Dingle so. done interview, attorney
At the no had been Dingle’s knowledge, time of Defender Gubler had not appointed Deputy defendant. Public represent represented any stated defendant or of the other lineup participants. Gubler,
Dingle, and the district office had representative attorney’s form, signed however. Gubler had above a statement lineup signed printed “Signature attorney which read: of Public Defender or for Had suspect.” conducted, objected Gubler to the in which lineup being manner was Dingle would have accommodated him. The of having representa- purpose tives of the attorney public present district defender was to ensure that fair. lineup legitimate was
Gubler testified that before was conducted he to the lineup spoke as a participants group, them that he there as for telling was counsel defend- ant, who was the suspect, they and that should all so cooperate that the fair lineup would be for He defendant. did not individu- speak ally. Gubler there as was of his duties as a He part public defender. had not met defendant to the know if prior lineup, did not his office had been appointed to represent defendant. He was never appointed represent defendant and at the time of lineup had not been to represent appointed any of the participants in the lineup. When the Gu- lineup concluded bler left and no further with day. contact defendant on that His func- tion at the lineup procedure satisfied. an attorney who observes form, is to lineup sign which lineup any becomes of the file for part attorney appointed represent defendant.
ii. Miranda advice.
In considering a claim that a statement confession is inadmissi ble because it was obtained in violation of a defendant’s under Miran rights *29 Arizona, 436, v. da supra, 384 U.S. and its we the trial progeny, accept inferences, court’s resolution facts and disputed and its evaluations of they credibility, substantially if are we supported. Although must “indepen facts, dently determine from undisputed and those by found properly court, trial whether challenged statement was illegally obtained” “ 247, Boyer, v. (People supra, may 48 Cal. 3d 263), ‘give we great weight 858 reviewed a that has previously lower court
the considered conclusions’ 104, 474 U.S. 112 (1985) Miller v. Fenton (See evidence. [88 same 405, 46 at 412, Jennings, Cal.3d 445].)” 106 v. (People supra, S.Ct. L.Ed.2d 979.) p. 28, to the addition of section subdivi prior this offense occurred
Because
Constitution,
voluntariness of
I of
sion
to article
the California
(d),
by
beyond
proof
of his
must be established
rights
defendant’s waiver
waived,
of,
Miran
his
intelligently
doubt that he was aware
reasonable
842,
375,
44
394
(1988)
Cal.Rptr.
da
v. Howard
Cal.3d
rights. (People
[243
Cal.3d 733
(1981)
Cal.Rptr.
v. Murtishaw
29
279]; People
749 P.2d
[175
738,
Markham
Defendant claims that it state of Miranda because did not with the mandate adequate comply attorney (See an present during he had the have right questioning. that 197, 707, 207, S.Ct. Fare v. Michael C. 442 U.S. L.Ed.2d 99 [61 Arizona, U.S. at L.Ed.2d Miranda v. at 2560]; p. p. [16 above, however, As was this advice when he was given indicated defendant in in the Ely. it was not included restatement picked up Dingle Although interview, North Las it was rights prior Vegas implicit of his first waiver Dingle immediately asked defendant’s question preceded me now rights of his he “wanted to waive the rights—whether speak attorney.” without rights
We have no doubt that the advice his given regarding his was to make clear to him that to counsel adequate right encompassed to have counsel The Miranda advice right present during questioning. 433, v. Tucker 417 U.S. L.Ed.2d (Michigan prophylactic given 94 S.Ct. and need not be formulation” 2357]), “precise 453 U.S. (California Prysock (1981) or “talismanic incantation.” his 101 S.Ct. in the manner which 2806].) Nothing L.Ed.2d suggested pre- were to him that defendant did have a rights explained Rather, once, he advised expressly implicitly sent to counsel. right right he had a to have immediately rights, advised before waived any during interrogation. counsel present rights.
iii. Prior invocation of not support Defendant also contends that evidence does Dingle with Vegas conclusion that he initiated the first North Las interview any of which he discussing suspect for the criminal offenses purpose ed, he, subject brought up or a conclusion that rather than Dingle,
859 course, during agree, having the interview. We of once invoked counsel, de any interrogate to to right subsequent attempt Miranda-based (Edw the interview. fendant was unless defendant initiated impermissible Arizona, v. v. 477; Jennings, supra, ards 451 U.S. Cal.3d supra, People Mattson, 91; v. 976-977; at supra, People at v. pp. People p. Fioritto, 231; v.
Pettingill, 714.) Cal.3d Cal.2d supra, supra, People has with the “Once the his desire deal suspect ‘expressed police counsel, is the only through subject interrogation by not [he] further him, until authorities counsel has been available to unless the accused made communication, further initiates or conversations with exchanges, himself invoked, the the been police.’ right Once Miranda to counsel has [Citation.] no valid waiver of the right may silence and counsel be found absent the accused, ‘necessary that the police, reopened dialogue the with fact 247, v. Boyer, the authorities.’” (People supra, 273.) Cal.3d 1978, 26, The evidence that defendant initiated September interview Dingle with is undisputed. Dingle’s testimony was corroborated by Detective King, who observed defendant contact and ask Dingle with him. speak Although defendant attempted impeach Dingle by sug gesting fabricated, that his testimony recently the trial judge stated officers, he testimony found the police particularly that Detectives and Dingle that defendant King, had initiated the conversations that fol 26, 1978, credible, lowed September to be lineup and that from all evidence he found that defendant knowingly intelligently and waived his constitutional rights discussed the matter with He Dingle. also believed “beyond a reasonable doubt” evidence presented regarding confes sions made on November 1978.
Having we, too, testimony reviewed the of both King are Dingle beyond satisfied a reasonable doubt that defendant initiated the interview. however,
Defendant argues, also that the bear the burden establishing that initiated interview with for the Dingle purpose discussing the charged offenses rather than custody conditions of or other routine matters. Defendant reasons that Dingle obliged to confirm that defendant’s was not to routine purpose discuss matters before bringing up Bradshaw, Oregon offenses. His reliance on 462 U.S. supra, Arizona, Edwards 451 U.S. for these propositions misplaced.
In Edwards the Supreme Court established another rule” “prophylactic __ (Michigan v. Harvey 494 U.S. L.Ed.2d S.Ct. holding that an who accused has invoked his Miranda-based 1176])f, *31 ini- “the accused himself interrogated not be unless
right may to counsel communication, the police.” or conversations with exchanges, tiates further Arizona, The 386].) at p. v. 451 U.S. at L.Ed.2d (Edwards p. supra, [68 meeting a with police an accused initiates court that often when recognized not “one-sided” conversation is rights, ensuing invoked his the having after event, the “In that likely interrogation. question there will be and it is that and the to right valid to counsel right be whether a waiver would occurred, is, knowing was that the waiver purported silence had whether circumstances, totality the found to be so under the intelligent and and accused, the the necessary reopened fact the police, the that including at p. U.S. fn. 9 L.Ed.2d (451 with authorities.” at dialogue p. the 387].) Bradshaw, Oregon supra, v. again question
The court
addressed the
furnishing
been arrested for
A Justice which Chief plurality opinion concurred, the requirement Justices and O’Connor reasoned that White rule that the accused initiate communication with was a police prophylactic invoked his prevent suspect rights. intended to who has badgering follows, the When the initiates further dialogue interrogation accused have events indicated a showing “subsequent the burden during waiver of the Fifth Amendment have counsel right present Bradshaw, U.S. interrogation.” (Oregon L.Ed.2d at p. “such as some accused acknowledged inquiries by plurality *32 a are too routine or a to use request telephone” for a drink of water
request directly or indi up general relating to reflect a desire to conversation open . . generally or . will not charges. to the “Such statements rectly inquiries used in Ed in in that word was ‘initiate’ conversation the sense which ” Bradshaw, p. v. at L.Ed.2d at (Oregon U.S. supra, p. wards. [77 it, however, the inquiry In the case before the concluded 412].) plurality the merely necessary out the incidents of arising “was not of inquiry reasonably the by and could have understood custodial been relationship” Therefore, as officer did not violate relating investigation. officer to the the at (Id. Edwards when the offense. spoke rule he with the accused about 1046.) After turned to whether p. resolving question, plurality occurred, waiver and valid accused’s to silence and counsel rights with the conclusion of the state that the accused’s statements agreed court to of a voluntary knowing examiner were the waiver. polygraph product (Ibid)
Justice
in
v.
Oregon
Powell concurred
with
Brad
separately
plurality
shaw,
however,
supra.
agree,
analysis
He did not
that the two-step
under
by
taken
either
plurality
required
Edwards
since
appropriate
incarcerated
accused of crimes
in
persons
numerous conversations
engage
with officers that
lend
rarely
analysis
themselves
an
first
spoke
to
who
Powell,
about
offenses. The
question,
crucial
in the
of Justice
is
opinion
totality
whether under the
of circumstances the
a knowing
accused made
Bradshaw,
and intelligent waiver of his
v.
right
(Oregon
counsel.
supra,
Applying of the or that of in approach plurality Justice Powell Bradshaw, Oregon we conclude that defendant’s confessions supra,19 were admissible. There was no in indication defendant’s request speak Dingle only that defendant wished to discuss routine matters related to his Arizona, incarceration. Edwards v. 451 U.S. not supra, does suggest that the prosecution bears the burden of that an establishing accused who has initiated a conversation after invoking rights his does intend to not only discuss recognized routine matters. The court in is some cases it matters, obvious that an an inquiry only accused relates routine but absent such may indications there are in which situations an officer reason- ably infer a willingness or desire to speak ongoing investigation. about This was such a case since defendant asked about his car. He did not simply express concern about car in whether the safekeeping. The location offenses, the car was relevant to both the Vegas North Las and to those appears The court adopted reasoning now have approach of Justice Powell. (See U.S._,_ Michigan Harvey, supra, L.Ed.2d reasonably could incriminating Dingle evidence. highly It held
California. therefore, investiga- believe, discussing the defendant was interested tion. Bradshaw, Oregon v. analysis either the two-step plurality
Under Powell, our Justice totality-of-the-circumstances approach or the knowing, intelligent, made a next whether defendant inquiry Here, only initiated rights.20 waiver of his voluntary contact, commenced before the interview rights waived expressly *33 inter- for the asking additional time to reflect between having did so after no from to room. There was being view taken his cell the interview and Indeed, Dingle it that apparent appears and no police badgering pressure. of his and obtain- overly readvising rights was cautious defendant being already Defendant had any place. before conversation took ing waiver exer- his and had unequivocally his of acknowledged understanding rights We conclude that defendant would cised them. see no basis on which to to with involuntarily only asking then them if his reason for speak waive was, of his as to about the whereabouts Dingle suggests, inquire he now car.21 conclude, court, did trial that defendant’s waiver
We as the voluntary.22 Although Supreme may inquiry limit this to whether there was the United States Court counsel, right valid the to we here whether defendant waiver of Miranda-based consider (See Boyer, right right People supra, v. 48 Cal. 3d his counsel and his to silence. waived both to 247, 273, 14.) fn. confessions, hearing admissibility court of defendant’s statements and At the on the testify Dingle permitted the interview with de first whether would be to about considered testimony necessary admissibility relevance to the of defend fendant. His because its interviews, subsequent because made ant’s and made in and defendant statements confessions during incriminating L. this interview. statements about Kiz offenses initial Dingle had con- a lack of recall as to whether defendant discussed Defendant attributes to brought up sub- being Black and defendant cern over housed with inmates as to whether
ject Dingle defendant asked where of the offense. testified that at the outset of the interview was, A the inves- Dingle impounded. his him it had been conversation about car told that followed, specific tigation point Dingle questions. asked defendant and at some suggests proving the defendant directed that the bear the burden of that Defendant Bradshaw, Oregon question to is not the crucial under conversation the offenses. This surrounding a supra, the circumstances defend- 462 U.S. however. issue whether right to police are such a valid waiver of the ant’s initiation of contact with as to establish any expressly prior inter- right If waiver made to counsel and the to silence. a valid has been identity rogation, brings up irrelevant. party the discussion of the offenses is who Bradshaw, Arizona, supra, 462 22Nothing Oregon or in Edwards v. U.S. argument Dingle obligation, an he intention supports U.S. that had or that defendant’s clarify scope ally obligation, any inquiry preface conversation with an avoided reasonably that defendant wished desire to communicate. Since he could infer defendant’s investigation, Miranda speak again him advised defendant of his with about the iv. coercion. Psychological his rejected
In above that statements to Detec- argument addition to his Miranda Fioritto-Pettin- Dingle tive were obtained in violation of and/or confessions, all gill rights subsequent and therefore tainted statements inducements, defendant claims that coercion and psychological coupled vulnerability, rights involun- psychological with rendered his waivers tary. above,
In this claim evidence and on support of defendant relies on the testimony that Dingle’s Dingle psychiatric defendant told that needed Dingle attention and wanted for his deviant sexual behavior. made no help defendant, for promises offer obtain however. The record counseling only reflects be Dingle agreed psychiatric counseling could and, beneficial when defendant asked see a did ar- psychiatrist, Dingle for that. No evidence range supports Dingle defendant’s claim offered to facilitate transfer custody to California or deceived regarding *34 his interest in the learning about California crimes.
The evidence on which defendant relies does not indicate that psychologi- cal coercion was used in eliciting defendant’s admissions and confessions. threats,
Nothing the record suggests leniency, any or promises by Dingle, by inducements defendant, or the officers who subsequently interrogated the motivating were cause of his admissions and confessions.23 815, (Cf. People Hogan 31 Cal.3d (1982) Cal.Rptr. 838-839 [183 93].) P.2d err, therefore,
The trial court did not
in ruling
testimony
that the
Detective Dingle
at
regarding
September
defendant’s statements
the
fortiori,
interview
admissible. A
admissions and
subsequent
confessions
were
inadmissible as the product of this interview and the
commenced,
rights and made sure that defendant waived them before
interview
his obli-
gation was met.
Reed,
8, 1978,
Detective
who first interviewed defendant on November
testified that no
promises
may
were made to defendant. Defendant stated that he
believed
have committed
memory.
suggested
drugs
additional crimes that he had
out
blocked
of his
He
to Reed that
crime,
might help him
way,
recall details of his
and when Reed said he could not
in that
assist
suggested
psychiatrist might
it was
help.
psychiatric
be able to
A
interview was ar
ranged,
exchange
Rather,
but
willingness
not in
psychiatric
for defendant’s
to confess.
response
consultation was in
suggestion
might
to defendant’s
help
that this
him recall more
information.
only promise
made
promise
explain
Reed was a
to listen to defendant and
what de-
doctors,
authorities,
drug problem
help
fendant said about his
proper
and need
for
or who-
might
ever
be
Reed
interested.
believed that defendant
easier
found it
to talk about his crimes
feelings
guilt
and that it
drug
lessened his
when
person
he discussed himself as a
who was
help.
crazed and in need of
The statements otherwise, coercion, No psychological were also admissible. interview made. they in which were circumstances reflected his,24and in the car were that the clothes Dingle After defendant told victim identified Vegas that the North Las had told defendant Dingle ex- defendant, Defendant discussed those offenses. and defendant Dingle defendant then told Dingle in his own words. rape kidnap plained replied: Beach. Defendant Huntington a similar case that there had been know,” about “Yes, terms general, “vague,” and told you Dingle I kpow, on have heard about case that he first claimed to Beach Huntington details about Dingle defendant gave Later in the conversation television. offenses. The inter- Huntington Beach Vegas the North Las both hours, the end of a break for dinner. At than four with view lasted no more interview, Dingle see him again. asked when he would Dingle day. following he would see him the defendant that told 27, 1978, rights. defendant of his advised Dingle again On September his willingness understanding expressed Defendant acknowledged into more detail attorney They went present. without an Dingle to talk Friday, shortly interview and after both cases. Between that about noon *35 29, 1978, case. full confession as to each defendant made a September them, in waived and rights, had been advised of his doing again Before so he attorney to talk without an willing whether he was question to the response transcript a tape-recorded, “Sure.” The confessions were present, replied, to review the given typed and defendant was opportunity was prepared, a itself contained on each statement signed page. that he transcript and understand- reading acknowledged admonition” “rights petitioner Detective Branch had been in contact with this ing. During period Dingle informa- exchanged and had Department of the Beach Police Huntington Kiz L. defendant and the case. tion about were conduct- interviews with defendant testified that several
Dingle an interro- rather than in and were conversational atmosphere ed a relaxed gation. clothing many in subject again, noting items of women’s were Dingle to the returned defendant, stated that by Dingle telephoned defendant’s mother who Prompted the car. then clothes, transvestite, early kept women’s childhood had stolen and
defendant was a and since primarily underwear. defendant, Dingle counsel for advised counsel appointed When was cases, branching two and that the California case was development 1978. other This the first week October during out into areas. occurred did counsel to the interviews any objection not recall defendant’s Dingle he defendant four or five times with defendant and continued interview the month of during week October.
b. Reed Interview: November 1978. early had been Detective Reed of Dingle contacted November 1978 County Sheriff’s had Angeles Although Los homicide division. Dingle murders, that defendant have been involved in or more suspected might one any until this time he unaware murder which investigation was actual 5, 1978, might defendant was or be On filed implicated. November Reed in the Whittier complaints Municipal charging Court defendant with the G. L. Cheryl and Kiz offenses. Reed came to North Vegas Las on Novem- ber and interviewed defendant for the first time on November Dingle 1978. was and present again advised defendant of his Before rights.
the interview repeated Reed the admonitions and He obtained waivers. advised
expressly defendant of his if right counsel and asked defendant he wished have counsel present during the he interview. Defendant said would talk to defendant, and did wish Reed counsel. Reed had identified himself to credentials,
showed him his and told defendant he investi- crimes, California gating specified the crimes.
Reed told he defendant was case investigating involving girl from Santa Fe Springs area and asked if defendant it. anything knew about interview, Defendant replied that he the girl knew was dead. During this after Reed told defendant that defendant his automobile been by a School, identified custodian at the Santa Fe Springs High admitted and sexual assault kidnapping Cheryl G. His statement transcribed, taped, and in form typewritten signed by defendant. state- This ment also bore advice rights signed by waiver defendant.
Defendant then volunteered: “I’ll give you you one don’t know about.” woman, He then described the murder another gave directions to the *36 location and Reed body, told about the in his car on paper which map location would be found. Defendant gave consent to search the car for this This victim paper. was later identified as C. Adele Defendant’s recorded, transcribed, statement about this offense was also in and signed the same manner as the earlier statements.
3. Intentional Right With to Counsel. Interference final challenge
Defendant’s to the admission of his admissions and confessions is on premised assertions that: defendant was represented to Gubler appeared the time that Public Defender Deputy
counsel from 25, September in on which defendant was lineup participant observe the Ahlswede, who 1978; Public Defender to advise (2) Dingle Deputy failed Vegas in North Las defendant formally appointed represent was about that would defendant Dingle question matter on October on who defendant charges; interrogated and officers possible capital 3, 1978, notify failed before questioning or after October Ahlswede defendant. right with defendant’s to counsel argue that no interference People formal
on the could have occurred in Nevada because charges California result, not been at the time of the Nevada interviews. As a charges had filed yet to counsel had arisen. argue, right no a. The Evidence. Vegas first before a of the North Las magistrate
Defendant appeared 26, 1978, Justice Court on as an arrestee. He other arrestees September counsel, their charges, right were advised of the arrest of their and of been at that charges of counsel. No formal had filed right appointment on time A was filed appointed. complaint September and counsel was not 28, 1978. Ahlswede courtroom and saw defendant there was present date, on but actual contact with him until October that had no shortly when he interviewed defendant regarding before appointment, Dingle his financial circumstances. Ahlswede testified that when contacted him, date, after that he that it all Dingle within two weeks indicated to was told right Dingle speak Dingle for to defendant. Ahlswede defendant matter. Huntington made admissions Beach Ahlswede regarding any was and did recall if been investigations, not aware other he had Las Ahlswede did not recall he Vegas North November 1978. when Reed, first at the he saw that a saw Detective but was advised time Reed underway. investigation homicide was testified, attorney-client
Ahlswede after defendant waived privilege, with Dingle both before after with discussed defendant speaking advisability Dingle. of further interviews with Ahlswede realized that defendant faced service of substantial time Nevada for serious At returned eager crime. that time defendant was to be to Califor- nia, Dingle and Ahlswede’s decision to advise defendant to with cooperate on his this further wishes to be opinion based would defendant’s returned to California. Had Ahlswede known that Dingle investigating cooperation. murder he would not have possible charges suggested unsuccessfully Reed to contact to the Novem- attempted prior Ahlswede *37 8, 1978, office, ber interview. A left at message was Ahlswede’s and a second
867 Ahlswede be- made in to contact attempt call was telephone unsuccessful fore the commenced. interview
b. to Counsel. Right in Nevada defendant had
At the time of the several interviews
and Sixth
waived his Fifth Amendment
voluntarily
intelligently
“Once it is determined
right
during interrogation.
Amendment
to counsel
uncoerced, that he at
rely on
was
rights
that a
decision not to
his
suspect’s
he
lawyer,
all
mute
and that
was
times knew could stand
and request
conviction,
to
to
aware of the State’s intention
use his statements
secure a
analysis
(Moran
waiver is valid as matter of law.”
complete
422-423
S.Ct.
Burbine
475 U.S.
L.Ed.2d
[89
Cf. Arizona v.
S.Ct. 2093].) Cheryl
As to the and Adele C. since charges, G. interviews, yet been at the of the no charged time initial he had Sixth Burbine, right (Moran
Amendment to at supra, counsel. 475 U.S. p. L.Ed.2d at His pp. 425-426].) Sixth Amendment arose with rights 5, 1978, Cheryl to the G. respect on November but he had not charges since him, been charges on those when arraigned Detective Reed interviewed counsel had not been him that He appointed represent matter. there fore had existing attorney-client attorney, no with any relationship appoint retained, ed or whose representation included defense of California charges about which he questioned in Nevada.
Defendant appears rely on that the Nevada reasoning and California officers interfered with counsel an right by failing existing respect attorney-client Nevada relationship by notifying his Ne- prosecution vada counsel of the plan to interview him. as argument Insofar defendant’s 5, 1978, is directed to questioning prior November questioning offenses, Adele regarding the C. it A rejected lacks merit. similar claim was Burbine, high court Moran v. 475 U.S. in which the court held that to the prior adversary judicial initiation of proceedings, of a interrogation has validly defendant who waived his Fifth Amendment rights does, is not precluded by the Sixth Amendment even when counsel to, desires represent defendant.25 argument assumption Defendant bases his Deputy Public Defender Gubler present September lineup at the “representing” Although defendant. the existence relationship controlling, reject of such a assumption. is not we The evidence established representatives public of the routinely lineups defender’s purpose office observe for the suggesting any unfair, changes procedure aspect in the appears if to them to be and to record their may any for the represent participants observations benefit of counsel who lineup
868 attorney-client relationship prior that of an
The court held the existence Sixth Amendment trigger protec to does not filing charges formal a not wrap protec function is to “The Sixth Amendment’s intended tions. sake more any for its own attorney-client
tive
relationship
cloak around
own candor. Its
consequences
from
his
than it is to
a
protect
suspect
rather,
U.S.
any
in
‘criminal prosecutio[n],’
is to assure
purpose,
Const.,
in facing
be left
his own devices
Amdt.
the accused shall not
to
By
very
its
society.”’
organized
forces of
“‘prosecutorial
[Citation.]
terms,
from
only
government’s
role shifts
it becomes
when
applicable
Indeed,
. .
Moulton [(1985)
.
in Maine v.
to accusation.
investigation
[fl]
Term,
474
106
this
the Court
(88
477)],
U.S. 159
L.Ed.2d
S.Ct.
decided
adversary judicial proceed
to the initiation of
again
looking
confirmed that
formalism,
from
is fundamental to the
ings,
being
proper applica
far
mere
Burbine,
v.
right
(Moran
supra,
tion of the
Amendment
to counsel.”
Sixth
427].)
This been rule long 18 considerations” which recognized “compelling policy Cal.3d we of the rule that statements elicited after indict against extension weighed in are (See ment of a defendant the absence of retained counsel inadmissible. v. 201 84 S.Ct. Massiah States 377 U.S. L.Ed.2d (1964) United [12 We Isby v. 1199]; People Cal.App.2d Cal.Rptr. crime, of a it is essential observed the commission “[following possible de unduly not be their Under police hampered investigation. however, . . de interrogation . could be propos[al] suspects fendant’s coun layed indefinitely suspect’s while the officers to locate the attempted sel, interview, his notify him of the and either obtain consent proposed convincing find no reasons permit thereto or his therein. We participation why necessary a cumbersome is con protect suspect’s such procedure Wong, at rights.” (People 187.) stitutional Duck Cal.3d p. Wong, to Duck we held Houston Subsequent 1166], right that a defendant’s counsel I, article section 15 of the California Constitution was violated when under failed to advise the defendant that counsel retained interrogating officers being questioned him in the about which he was represent others matter narrow, rule quite was at the station house to assist him. Houston however, to the facts of that case—“whether or not was limited counsel, has to silence and custody previously rights waived suspect may deny him the before questioning begins police opportunity, charged represent subsequently appointed who Gubler was not with criminal offense. defendant, defendant, responsibility ad- individual with and undertook no no contact vise, counsel, represent or otherwise defendant. *39 resumes, who has taken with counsel appointed to meet his retained or ” Italics added.) Cal. 3d 610. diligent (42 to come his aid. steps in the California
Defendant neither retained nor counsel appointed matters, no to assist steps Nevada counsel had taken and his appointed defendant with to those matters. regard right
Defendant that his Sixth Amendment counsel argues nonetheless in Cheryl in the arose when the was filed California on complaint G. matter 5, 1978, in November at which time defendant was the Nevada represented case Public Defender Ahlswede. After that date defendant was Deputy about, the interrogated by, incriminating Cheryl and made statements G.
offense to Reed.26 Detective occurs,
No violation of a defendant’s Sixth Amendment to counsel right however, notify as a result of a failure counsel who defend represents ant in a for a of the intent to prosecution separate offense interview the defendant in suspect as a criminal investigation unrelated when the defendant right has waived his to have counsel present during interview. v. 9 Cal.
(People Duren 3d whether, waiver, We need not decide the absence of a the investigating officers must if the appointed attorney will inquire represent also de- fendant during interrogation about an unrelated offense. We are not per- suaded argument defendant’s that this case is taken out these rules conduct, because Dingle Detective in a engaged and did not deceptive advise during the interviews of Detective Reed’s interest offenses other the Kiz L. than matter. Even before became aware of Dingle offense, defendant’s in any involvement California specific believed that defendant had committed crimes other than those crimes committed in North Las He Vegas. any intended to obtain information about crimes in which defendant was implicated. The evidence fails to simply support de- fendant’s suggestion that Dingle when he engaged deceptive practices defendant, interviewed however. The manner in which the interviews were conducted reflects none of the might coercive elements that violate a de- Amendment, Amendment, fendant’s Fifth Sixth rights. (Cf. due process People Hogan, 815; Cal.3d Azure Cal.App.3d 591 Cal.Rptr. 158].)
The trial court did not err in admitting defendant’s statements and con- fessions to and Reed. Dingle 26The evidence attempted uncontradicted establishes that Reed twice to contact Ahlswede
prior to his interviews with defendant. Rulings
B. Objections. Defense objections erred in on various argues ruling Defendant that the trial court evidence, instructions, and prosecutorial to admission of other items of errors, individually cumulatively, He claims that these argument. on the reliabili- undermined his defense to cast doubt strategy attempting C. In order to do ty Cheryl of his confessions to the G. and Adele offenses. *40 crime, falsely so he to demonstrate that he had confessed to another sought Hemet, 20, 1978, in In July the murder of Deanna M. on California. sup- defense, sug- of that defendant relied on a time card that port principally he was at his in suburban Los at the gested place employment Angeles testimony time of the Hemet with whom he was killing, persons managed the manner in which time cards were employed regarding defendant’s normal work practices. Testimony.
1. Police Opinion in testimony Defendant contends that the court erred admitting alibi, of a Hemet officer that notwithstanding police apparent be a M. continued to of the still unsolved Deanna murder. This suspect testimony, argues, testimony guilt was of that opinion regarding testimony hearsay offense. Defendant contends now that the was and re however, objection, ferred to matters outside the record. The trial was that the evidence was irrelevant.
The evidence to was objected which defendant offered to rebut evidence that his confession to the Deanna M. murder was a fabrication. The People victim, knowledge offered evidence of defendant’s of details about the death, body, the means of and the location of the to confirm his tending guilt veracity testimony of that offense and thus the of his confession. The relevant, an that defendant question opinion guilty, not as but to that, establish of the light guilt, other evidence defendant’s alibi was investigator insufficient to cause to rule defendant out experienced police M. as the Deanna homicide. suspect
The trial court did not err in defendant’s relevance overruling objection to admission of this evidence.
2. Deanna M. Photographs of
The trial court overruled objection defendant’s to admission found, body that reflected the this victim’s photographs position of when and the on the victim. The found that the tanning pattern court expressly value of the their probative outweighed prejudicial photographs impact. Code,
(Evid. 352; Cal.3d Thompson § The court did not err. The were photographs not unduly gruesome, they and were relevant since tended to confirm highly veracity only of defendant’s confession matters that demonstrating the actual killer have could known. argument merely
Defendant’s were cumulative photographs matters, lacks merit. Although witnesses testified these the testi- regarding mony only reflected the witnesses’ opinion given by details defendant in his statements to the closely Hemet officers matched the actual conditions body. In these circumstances the were the best evidence photographs of those conditions. Evidence that is identical in subject matter to other evidence should not be excluded as “cumulative” when it has evi- greater dentiary weight probative value. v. Carter (People (1957) 48 Cal.2d 748-749 P.2d 665].)
3. Instructions.
a. Consciousness Guilt. of Defendant claims next that the trial court erred in jury instructing of language CALJIC No. 2.03.27He that argues the instruction permit- ted the jury to consider his denials of the Deanna M. homicide as con- sciousness of guilt of the offenses for which he was on trial reasoning his confession to the Deanna M. homicide was relevant to guilt of those charges.
We perceive no error. The of language the instruction is clear. It restricts consideration of prior statements as consciousness reflecting guilt of to false statements about the charge for which the defendant is being tried. Defend- ant’s denials of the Deanna M. homicide were not statements “concerning the charge on Moreover, which being tried.” jury [defendant was] expressly instructed regarding the relevance of a conclusion that defend- ant’s Deanna M. confession was false.28In the context in which the instruc- tion was given we cannot accept defendant’s speculation that the jury might you “If find that before wilfully this trial the deliberately defendant made false or mis tried, leading concerning charge statements being you may on which he is now consider such tending prove statements as guilt, a consciousness of but it is not sufficient of itself to prove guilt. weight given The to be significance, any, to such a circumstance and its if are your (Italics matters for added.) determination.” jury you effect, was instructed any, your that “then findings must determine what if probative have on the value of the confessions support charges introduced to in this case. “If, you from all the evidence have a guilt any reasonable doubt of the defendant’s charge you guilty then must find the defendant not charge.” of that falsely
have misunderstood the limited relevance of a conclusion that he had denied M. killing Deanna CALJIC 2.03. The give
Defendant also claims that it was error to No. was defend- basis which the instruction was upon requested Cheryl ant’s initial denial that he had committed the G. offenses. As defend- observes, crimes the ant since he later a full confession to those gave of, of, value and inference of consciousness from the initial probative guilt Nonetheless, erroneously denial was tenuous. even if the instruction given, was not Defendant’s confession and the other evidence connect- prejudicial. reasonably him to those offenses were It is not ing overwhelming. probable error, that a different if it verdict would have been reached absent the error. The of an have impact guilt inference consciousness of could not resulted v. Watson miscarriage justice. (People P.2d 243].) Duty
b. to Give Sua Admonition. Sponte
Defendant that the suggests to have prosecutor “appears” improp erly in his implied closing argument guilt should be inferred from the defendant’s of conduct. The misconduct is identified as a pattern apparent attorney statement that defense talks about there seems to be “[t]he lot similarities between some of the statements that are obtained from *42 defendant. Of course there are. Because Michael Dee Mattson kidnaps, and kills in a similar rapes, people fashion.”
This “improper argument,” argues, triggered duty defendant on the of the court to part give jury a sua instruction to the that the sponte evidence regarding each offense must be considered. separately
There nowas misconduct. The argument responsive defendant’s argument that the confessions were similar because they were fabricated.
The prosecutor did no more than out an alternative reason for the point similarities, Moreover, by a reason supported evidence. the numerous similarities, marks, or common in the manner in which the offenses were committed could jury identity be considered as evidence of the of the 919, 467, killer. v. 46 (1988) Bean Cal.3d 937 760 (People Cal.Rptr. [251 however, P.2d 996].) Most importantly, object did not to the He argument. to circumvent the rule that an attempts objection asserted made, ly must be improper argument and the court afforded the opportuni toty jury, admonish the if a misconduct claim is to be for preserved appeal. Bell, v.
(People 49 Cal.3d at Since an p. 535.) admonition could have evidence, cured any of the misunderstanding import the failure to object constitutes a waiver of the issue on appeal.
873 17.01. Jury Agreement: c. CALJIC No. the jury instruct court’s failure to
Defendant that the trial argues G. Cheryl of find that murder single that it on act to agree lewd and of a commission attempted the commission or perpetrated during Cheryl G. of murder of reversal the conviction lascivious act of requires found, act, however, it when necessarily agreed single on a jury instructions, during the com murder was committed under that the proper a child under an act on rape mission It is to commit of rape.29 impossible Cogar (1962) 288. v. simultaneously 14 section violating (People without 509, v. 168 27]; Stampher (1959) 202 512 Cal.Rptr. People Cal.App.2d [21 579, therefore that 207].) 580-581 Assuming P.2d Cal.App.2d [336 263, 281 (1982) v. instruction was Diedrich required (People [182 354, 282; v. Thompson 643 P.2d id. at 971]; p. but see Cal.Rptr. 160 224 defendant suffered no
(1984) Cal.App.3d Cal.Rptr. 516]), [206 Cal. 3d as a result of omission. Sedeno prejudice (People Cal.Rptr. 4. Delicti. Corpus and 1118.1 to sought
Defendant motions sections 995 pursuant have both C. and Cheryl all circumstance the Adele special allegations dismissed, G. murder counts and the Adele C. murder itself charge arguing that there was insufficient evidence of his confessions to independent sup- Because port charges. pursuant those error the denial of a motion section (People 995 does not reversal absent a require showing prejudice Cal.3d P.2d Pompa-Ortiz make, 941]), denial only which defendant does not we consider 1118.1 verdict defendant’s motion to section for a directed pursuant acquittal.30
The delicti that the establish the rule corpus requires prosecution extrajudicial of the offense of the corpus delicti defendant’s independently during and 29The verdict found that the had been committed “commission at murder Although tempted rape.” rape. committing commission of Defendant admitted an act of it is body possible rape committing of the vic attempt without a lewd and lascivious act on the tim, jury in rape this case the found a had been committed. 30 jury, a on the defendant or Section 1118.1: “In case tried before a the court motion of motion, own the and is submitted to its at the close of evidence on either side before the case decision, jury entry judgment acquittal the order of or more of the for shall the of a of one accusatory charged pleading offenses in the if the evidence then the court is insufficient before judgment appeal. If to sustain a conviction of such offense or offenses on such a motion for of acquittal by prosecution granted, the the defendant at close evidence offered is not may having right.” evidence without first reserved that offer 874 admissions,
statements, 31 Cal.3d (1982) v. Towler (People and confessions. However, 391, is 105, “the 1253].) prosecution 115 641 P.2d Cal.Rptr. [181 convincing clear by delicti as and required corpus proof to establish the proof of rather facie prima the fact necessary guilt; slight as is establish 535, 32 v. Cal.2d Mehaffey (1948) such purpose.” (People is sufficient for 12].) 545 P.2d [197 met “evidence
If burden is charged, murder People’s have caused inference the death could been which creates a reasonable an equally plausible . . . even of agency presence criminal v. 63 Cal.2d (1965) the event.” Jacobson explanation (People noncriminal 319, 515, are crimes that 555].) any 327 405 P.2d As to Cal.Rptr. [46 loss, or injury, fact must establish the charged prosecution occurred, v. Fran harm and criminal was the cause. agency (People that a 355, 503].) 228 358 Circumstantial Cal.Rptr. cisco (1964) Cal.App.2d [39 adequate. reasonably be are may evidence inferences that drawn therefrom and 792, 504 v. 8 (1973) Cal.Rptr. Cantrell Cal.3d (Pe ople [105 P.2d under allegations
This as well as the rule circumstance applies special Mattson, 93.) v. 37 Cal.3d at lying charge. (People p. murder initially founda delicti rule to establish the corpus operates and extrajudicial tion for admission of a defendant’s admissions confessions. offered, However, delicti has been corpus once facie prima proof admitted,31 state confessions or admissions have been those defendant’s may charged all of elements of the determining ments be considered v. (1988) been Ruiz Cal.3d (People offenses that have established. 854]; Cullen People [244 Cal.2d 738-739 1]; McMonigle P.2d P.2d 745].) rules, we that a facie case was these conclude
Applying prima at the established as to each that the evidence close charge, Cheryl G. was was sufficient to sustain a conviction on People’s appeal. case body her When has been prior young girl abducted murder. who location, two-piece of her kidnapped is found a remote with the bottom lacerated, the missing, hymen her has been circumstan swimming suit *44 is The sexually strong. tial that the has assaulted evidence victim been a Cheryl G. further inference physical injuries support suffered facie proof rape attempted forcible occurred. of Independent prima rape admitting regard does not in this in his confessions. Defendant claim error therefore, in the Peo- was presented, and lascivious conduct and lewd rape case-in-chief. ple’s murder and to the C. is true Adele respect
The same with for work. leaving was The victim last seen circumstance. special kidnapping with her. money or other possessions She arrive. She had taken no did not day of background in her or conduct Nothing She did not hitchhike. area in to the voluntarily go she would suggested disappearance in a found, was found away. body run The or that she would
which she was away employment, her home and place remote location miles from found defend with Her and sweater were pants covered leaves. partially car, body was found. ant’s the location at which the indicating as was map home, left Stains dirt on her had been clean when she clothing, which This struggle ground. indicated that she had in a while on engaged caused evidence facie that her death was independent prima proof criminal and that had been agency, kidnapped. she further that the mul authority supports argument
No defendant’s 190.2, tiple-murder (former (c)(5)) required circumstance subd. special § facie case The delicti re proof prima degree corpus of first murder. felony-murder circumstances virtue quirement applies special command of former section that felonies enumerated former sec 190.4 tion be to the law. pled proved according general (People 190.2 Mattson, 93-94.) 37 Cal.3d at The cir supra, pp. multiple-murder special 190.2, among cumstance is not the enumerated felonies of former section 190.2, Probable (c)(3). subdivision cause is established under former section if the (c)(5) may subdivision evidence is such that the defendant be convict Williams, ed of murder. degree first (People 925.) motion, To a section 1118.1 than withstand more evidence nothing murder, sufficient to sustain convictions for two counts of one of which is of degree, first concluded that of a facie required. Having proof prima felony-murder case and sufficient to sustain the circumstances proof special case-in-chief, were offered in the it that the evidence was People’s follows section 1118.1 as sufficient to withstand defendant’s motion insofar it was the multiple-murder directed to circumstance. special
5. Counsel. Ineffective argues constitutionally
Defendant his trial counsel rendered L., G., Cheryl Kiz ineffective assistance to seek severance of the failing from for trial. that the charges argues prejudi Adele C. each other He cial effect of incidents on the “spillover” regarding separate evidence jury at the first trial. guilt determination of of the others obvious that counsel had a tactical for this omission since People suggest reason
876 with the crimes similarity of to consider jury invited the the defense confessed, defend- he had and to which charged which defendant homicide, to con- M. Deanna to the assertedly false confession ant’s record nature. The crimes of that confessed to falsely defendant clude that strategies, other defense had considered attorney confirms that defendant’s was the that this defense had concluded aware of the risks and although defendant, who when strategy with He had discussed best approach. affirmed understanding acquiesence to his by the court as
questioned defense. to utilize this wish reasonably compe which was not one say strategy We cannot that this evidence of the physical when aware counsel would choose tent defense that defendant’s ruling and faced with to the crimes tying Williams, (See 44 at Cal. 3d v. People supra, be admitted. confessions would 732, 412, 590 424 Cal.Rptr. v. 23 Cal.3d 922; (1979) People Pope p. [152 859, 1].) 2 A.L.R.4th P.2d in the reason for acquiescing tactical apparent from
Quite apart counts, the evidence the likelihood that have noted above we joinder was probative similar modus operandi since the would be cross-admissible Bean, 937; v. at p. People v. 46 Cal.3d identity. supra, (People on the issue of 775, 1126].) 632 Cal.Rptr. 36 Cal.3d (1984) Alcala [205 attorney’s based on a trial assistance of counsel A claim of ineffective only the ab must demonstrate not objection a motion or failure to make (1983) v. Fosselman (People for the omission of a tactical reason sence also that the 1144]), P.2d but Cal.3d meritorious, if the defendant is to bear been would have objection motion or reasonably that absent probable that it is demonstrating his burden of have resulted. to defendant would more favorable omission a determination Fosselman, 584; Washington v. at Strickland p. v. 33 Cal.3d supra, (People 674, 699, S.Ct. L.Ed.2d 466 U.S. would have been that the evidence
In light probability it cross-admissible, charges, on each of the evidence strong and the equally have exercised its discretion court would unlikely that the trial appears an abuse of would not have been Denial of the motion such a motion. grant Bean, Even 938-939.) 46 Cal.3d at pp. (See supra, discretion. People however, the state been granted, the motion have might assuming favorable that a more reasonably it not probable is such that the evidence group held on each trials been separate would have ensued outcome charges. record on appeal based on the establishing,
Defendant has the burden Williams, 12; v. Szeto at fn. p. (People
877 652, basis of 20, and on the 213]) 623 P.2d 35 Cal.Rptr. 29 Cal.3d [171 Williams, 937), 44 at that p. Cal.3d facts, supra, v. (People not speculation 23 v. supra, (People Pope, assistance. rendered ineffective trial counsel 60 Cal.2d (1963) v. Ibarra (Cf. People He has not done so. 425.) Cal.3d at p. P.2d 487].) 386 Cal.Rptr. [34
IV.
Penalty Phase Error Activity.
A. Other Criminal evidence admitting regard- court erred in Defendant claims that the trial and kidnap- his 1971 conviction for underlying rape the circumstances ing robbery. The for rape, kidnapping, and a 1979 Nevada conviction ping, 190.3, section factor under former aggravating evidence was offered as or absence of jury which to consider (b), permits presence factor criminal the use of force or violence. Defendant activity involving other convictions, and assumes offered to that he had suffered the stipulate prior relevant to the only penalty the fact of the convictions was prior is unwarranted. Karis (People determination. assumption v. Brown 1189]; Cal.3d 639-640 758 P.2d Cal.Rptr. People 46 Cal.3d There was no error. Regarding Dangerousness.
B. Future Expert Opinion Defendant claims the allowed to prosecutor improperly question if he to be regarding dangerousness witnesses his were expert potential to life in sentenced prison. Murtishaw, 733, 767-768,
In this court held People jury may that because a undue on the of a place emphasis opinion psychia- trist that defendant to staff and other inmates capital poses danger and because of future violent conduct are unreliable and prison, predictions erroneous, may not offer such evidence at the penalty frequently Here, however, of the trial. the evidence to defendant now phase which De- objects was elicited on cross-examination of defense witnesses. proper objected fendant neither to the nor moved to questions prosecutor strike the witnesses’ did not future responses, predict danger- which was, therefore, There cognizable appeal. ousness.32 no error mistrial, grounds, claiming per Defendant moved for but on different he had not been jurors ability attempt scrupled prospective their mitted to to rehabilitate on voir dire about Defendant’s counsel in asking questions.
Nor was there misconduct would show statement jury opening had advised the committed, but that mentally were ill when offenses been *47 incarcerated, a to guards not been threat while had considered since was a A that defendant defense testified prisoners.33 psychiatrist or other defend- testimony the of officers that and offered correctional schizophrenic might he given who had no indication that conforming prisoner ant was a in prison. assault women while in rebuttal may future be introduced dangerousness
Evidence of the in prison the himself has raised issue of performance when defendant be law- in a environment would prison and has offered evidence that 1, 31 v. Malone abiding. (People improper.
P.2d The was not question
C. Motion Modification. for 190.4, a to (e), Former section subdivision deems defendant sentenced ruling have the verdict. In death to made for modification of application safely pris- if it were the be housed in penalty vote for the death shown that defendant could on, an prosecutor’s and the disavowal at that time of intent to offer evidence that defendant that be trial court the mistrial with an observation the would a threat. The denied motion Nuernber- “directed much more towards the comments made to Dr. cross-examination was women, by head and cross-ex- ger Mr. that he had sensation in his about there was Mattson regard.” I believe in that amination present that Counsel stated: “We also intend to evidence from correctional counselors prison prison while he has has incarcerated in since 1980 and that in had the defendant been classification; guards pris other good behavioral he is not considered be a threat to or to a oners, escape.” or to witness, Nuernberger, psychiatrist, Dr. had examined defendant The first defense Louis “schizophrenia, prison in in 1980 and concluded defendant suffered from undifferenti- that history by drugs and alco- type, accompanied multiple sexual sadism and abuses of ated fairly regarding comprehensive After examination and the basis for hol.” cross-examination by meaning prosecutor report prepared in the findings, the referred to a statement and his strange had in had recorded defendant’s statement that he “a new the witness which he present presence acknowl- in his head” the of female counselors. The witness sensation report edged he had in the he believed it to be of some included information because Nuernberger explore subject unique significance. attempted Dr. because it was the get beyond matter-of- experience reported, that sensation but he unable to the his have ominous, thought but fact defendant. He did not consider the statement statement made discovering might something interesting himself. The burden of the that defendant be about de- attempt to the the witness’s conclusion that cross-examination was an undermine basis of seriously mentally charged time he the offenses. fendant had been ill at the committed feelings suggested that de- prosecutor if described In this context the asked the defendant offering rape opinion that de- wanted or counselors. from fendant to attack female Far however, dangerous prison, Nuernberger responded Dr. he “had no fendant would be only safety any for the the male staff.” Not reason to fear the welfare of female or dangerousness, quite attempt opinion than an elicit an on future but the context different opinion posed believe threat to staff. offered was that witness did not consider, evidence, into take must review judge the application, circumstances mitigating account, aggravating guided and be 190.3, determination independent and make an to in former section referred circumstances aggravating verdict that jury’s findings as to whether the evidence contrary to law or are circumstances mitigating outweigh reasons for record the state on the must also judge presented.
findings. with comply properly failed to judge contends that
Defendant 190.4, aggravating because he considered (e), former section subdivision Rules (Cal. Courts Rules for the Sentencing Superior in the factors set out sentencing, determinate Court, are 401 et which seq.), applicable rule *48 out as set sentencing to statutory capital factors applicable rather than the maintains, “error,” the court caused This in former section 190.3. introduced, in the evi particular evidence he had mitigating the
disregard danger he was not suggesting and evidence dence of mental illness or other inmates. staff prison that the court failed for his only assumption
The basis offers petitioner no indication” “gave illness is that the court consider the evidence of mental it had done so. confirms, however, fully with judge complied The record that the made mention express under section 190.4. The court obligations former mentally ill defendant should by the defendant’s counsel that argument executed, seriously defendant was not be and stated that he did not believe The reference to factors mentally ill at the time he committed the offenses. not, in determinate do as defendant sentencing
that are also considerations of the death statutory a failure to consider the factors suggests, reflect reasons for contrary, law. To the the statement offers the court’s penalty why in after consider- concluding, judgment judge, the of the independent believed that judge ation of the evidence in the mitigation aggravation Turner, ante, in page death was As appropriate.34 think, you penalty though, come to the 34Thecourt’s statement and reasons were: “I when requesting act argument, the Court to phase, where has seemed to rest his [defense counsel] penalty, heard juror making independent judgment death the Court as the its on the [13th] testimony offenses], past the victims of [of testimony defendant as to presented “The Court also heard the witnesses 1980], also the evidence psychological] examinations in [psychiatric and conducted Quentin. in San as to his behavior while he was confined phase jury’s penalty penalty is verdict to the death in “The Court believes that as independent de- definitely make an supported the evidence. And the Court has and does supported. that it is so termination wrong penalty is argument that the death “The court has also considered the of counsel life, taking fact that the defendant government participate in another and that should not evaluated 887], judge the record satisfies us that While he did so under a normative circumstances that were evidence.. sentences, determinate factors consid- framework for the imposition were relevant to capital sentencing. ered
Disposition is affirmed. judgment
Lucas, J., J., Panelli, J.,* (Donald R.), C. and Franson concurred. in, KENNARD, J., analysis concur with most of the Concurring.—I view, however, with the result reached In by, majority my opinion. is, fact, ill, may seriously mentally seriously mentally have been ill or and the Court must culpability. make a determination as his moral very perfect. perfect. possibly “We’re un- not This Court is not But we do the best we can that, just anarchy. attempt der the circumstances. And if we it’s And this don’t to do Court going participate responsible in that. Each one of us have to be for those acts that [we] responsible we commit. And I believe Mr. he commits. Mattson should be for acts may agree people revenge “I with counsel that some wish to take the life of another out of great joy being having participat- or fear. I have no Mr. here and to listen to what Mattson *49 in, any great being during ed nor do I either believe counsel had love of here the course of this trial. job. definitely legally “The fact of the matter is that’s our And I believe that Mr. Mattson is responsible punished. under the law for his acts and should be so And insofar as this Court or so, anyone morally judg- probably culpable is able to do he is for it. But I can’t make those any anyone going judgments. ments more than else can. make Someone else is those seriously mentally “But I do not believe that Mr. was ill the law at the time Mattson under person things type of these offenses. I don’t know what kind does the that Mr. Mattson law, abundantly, convincingly does. But the evidence is clear that he did it. And under the punished. should be them, crimes, great “The Court has considered the fact that each of these each of involved violence, court, harm, bodily great only each one. the ones which he tried in this Not for penalty phase presented. but also in the the evidence that was instance, cruelty every high degree “Each one indicated a and in viciousness almost [nine]-year-old girl. the least of which the particularly “But in each have in- instance the victims were vulnerable. All of his crimes multiple engaged premeditation. volved victims. Each crime out with He has in a was carried pattern many years prior violent conduct for to these offenses in 1978 which indicates he [of] society. danger is a serious prior prison “He parole has served terms. He was on when he committed the offenses for
which he was tried. Court, attempting any mitigation reviewing “The to look at circumstance in the tes- case, Court, timony presented penalty phase at the time of the of this consid- defendant, ering testimony presented by any that was not believe that of those does mitigate against imposition penalty im- circumstances that this court intends to pose. independent judgment. “The Court has exercised its made an Denies the discretion. It has modify jury." defendant’s motion to the sentence of the * Justice, District, Presiding Appeal, Appellate assigned Chairperson Court of Fifth of the Judicial Council.
881 first at the that his motion contention defendant’s rejecting errs in majority brought motion of a and parcel was part exclude his confessions trial to aas evidence seized physical 1538.51to suppress Code section under Penal instead motion was confessions, that the concluding result of ante, 850- at (Maj. pp. 402. opn., Code section to Evidence made pursuant motion, majority defendant’s the nature of By mischaracterizing 852.) a section relitigating the propriety issue regarding skirts an important on been reversed has a defendant’s conviction 1538.5 motion on retrial after a motion. denial of such court’s improper because of the trial appeal may suppress 1538.5 be used that section acknowledges The majority a defendant’s Fifth a violation of as a result of evidence seized physical 126, 40 Cal.3d Court v. rights. (Green Superior Sixth Amendment 186, v. 133, Pettingill (1978) 248]; People 707 P.2d fn. Cal.Rptr. [219 108]; P.2d People Superior fn. 1 Cal.Rptr. Cal.3d (Zolnay) (1975) Court out, But, to exclude as the motion majority points confession v. Superior 1538.5. (People
such
is not
under section
grounds
cognizable
that when
734.)
majority
The
then concludes
(Zolnay),
p.
Court
at
evidence
a confession and the physical
defendant seeks to
both
suppress
confession,
be deemed to be
the motion must
seized as a result of the
a section
components,
of two
distinct
comprised
logically
procedurally
and an Evidence Code
1538.5 motion to
evidence
suppress
physical
the confessions.
section
motion to suppress
our
in Peo
majority’s analysis
holding
inconsistent with
squarely
In
(hereafter Zolnay).
Court
ple
Superior
(Zolnay), supra,
in the seizure of
Zolnay, the defendants’ confessions to the
resulted
police
*50
advised of their
they
fully
evidence.
had not been
Asserting
physical
384 U.S.
by
(1966)
constitutional
Miranda v. Arizona
rights
required
as
694,
1602,
defendants moved
974],
L.Ed.2d
86 S.Ct.
10 A.L.R.3d
the
[16
the evi
1538.5
their confessions and
pursuant to section
both
suppress
In
of this proce
dence seized as a result thereof.
the
upholding
propriety
evidence,
dure,
the
the
seizure of
not
tangible
we observed: “it is
unlawful
confession,
the
a defendant to invoke
permits
proce
admission or
which
Nonetheless, we
734.)
1538.5.”
Cal.3d at
(15
p.
dures authorized
section
been
the
of section 1538.5 had
invoked
procedures
determined
once
confessions,
the Miranda issue
the fruits of the
the
on
suppress
ruling
“The
1538.5
As we
hearing.
explained:
physical
became
of the section
part
undeniably
the amended motion was directed was
evidence towards which
admissibility of the evi
of section 1538.5. Since
proper scope
within
occurred,
whether or not a Miranda violation
upon
dence depended
stated,
statutory
are to the Penal Code.
Unless otherwise
all further
references
1538.5
the section
became
necessarily
part
issue
on the Miranda
ruling
of
evidence, which
admissibility of the physical
. . .
of the
Our review
hearing.
1538.5, necessarily
of section
provisions
with the
we undertake
accord
trial court
or not the
to whether
make a determination as
that we
requires
on
ruling
Our
has occurred.
that a Miranda violation
holding
correct in
must be adhered
case and
becomes the law of the
that issue then
v. Shuey
(See People
in this action.
courts in future proceedings
lower
(Zolnay,
Here, suppression defendant’s 15 Cal. 3d Zolnay, as in it sought 1538.5 because under section brought at first trial was properly confessions. a result of defendant’s evidence seized as to suppress physical state And, to whether defendant’s trial court’s as Zolnay, ruling as in 1538.5 hearing.2 section of the part had been obtained became legally ments at motion that defendant’s majority I cannot with the agree Accordingly, and the physical confessions themselves trial to both the suppress the first entirety a motion pursuant was not its seized as a result thereof evidence to section 1538.5. trial, reversed the judgment first we following
On appeal defendant’s confessions had been that defendant’s of conviction based on our conclusion v. Mattson obtained. illegally (People remand, relitigate attempted 887].)3 prosecutor On ruling new evidence. Because the confessions based on
admissibility of context of a section was made in the issue at the first trial on this same motion, found unneces- majority which the 1538.5 the following question, addressed; consider, is reversed on When a conviction must be sary to motion erroneously pursuant denied a the trial court because appeal retrial, 1538.5, based that motion may relitigate the prosecution section new evidence? on the presentation hearing the first trial shows transcript suppression at An examination of the 1538.5 At the part the section motion. suppress was made a the motion to the confessions counsel], Beyersdorf your moving papers, Mr.
hearing, part stated: “As [defense the court normally litigate the ad you the defendant. The Court does have included statements of [may] at be raised rather the matter missibility part a 1538.5 motion but of statements as However, willing agreement I am of counsel 402 motion. with Evidence Code section] [an to hear that “Yes, Honor. will prosecutor responded: Your part of motion.” *51 going motion we are completely encompassed in the stipulate. part of the motion is Since that motion], just duplication at a later time.” [i.e., it be a 1538.5 would to hear now the section discussion, “By agreement of counsel the (Italics added.) the court concluded: After a brief admissibility 1538.5 mo part as a the you litigate the of statements permit the Court will of ” (Italics added.) tion. 3 court’s rul whether the trial did not indicate opinion appeal earlier in this case Our the a section in the context of admissibility was made ing of defendant’s confessions on the Mattson, (See supra, People v. section 402. a under Evidence Code 1538.5 motion or motion 85, 89-92.) 37 Cal.3d (ante, language 850) ambiguous at p. out majority The points 471, 26 Cal.3d (1980) v. Brooks People court by (e.g., decisions this certain 177, suggest be read 1306]) might 605 P.2d Cal.Rptr. 483 [162 barred, majority the statutorily but is a 1538.5 motion section relitigation this issue and address I would ambiguity. to resolve the makes no attempt below, may 1538.5 motion conclude, a section forth the reasons set for a and reversal of following appeal new evidence on the basis of relitigated be of conviction. judgment 1538.5, a Following clear: the law was section
Prior to the enactment of seized illegally suppress of a motion to a trial court’s denial reversal of evidence, the relitigate new evidence could introduce the prosecution 602, P.2d Section 51 Cal.2d v. Carswell (1959) issue. (People [335 the rule change intent to indicating legislative 1538.5 devoid of language is Nevertheless, relitiga- maintains that we articulated in Carswell. v. Court Superior In he cites Lorenzana
tion is barred. support, Shuey v. 33]; 511 P.2d People Cal.3d 626 v. 211]; and People 841-842 Cal. Rptr. Cal.3d Brooks, cases, however, the compels 3d 471. None of these Cal. supra, by result defendant. urged Court, the trial court’s
In 9 Cal. 3d after supra, Lorenzana Superior 1538.5, the defend denial of his motion to evidence under section suppress In writ of mandate. ant relief means of for sought pretrial petition that, sought instead of the writ argued issuing the response, prosecution defendant, court should remand the matter to the reviewing superior the the that the fruits opportunity argue court to with provide prosecution In illegality. inevitably despite of the search would have been discovered so, to do we “To allow a refusing explained: reopening question admissibility of the the basis of new theories to or contest legal support Penal Code section 1538.5 and dis evidence would defeat the purpose from all relative to the when courage arguments question parties presenting initially 640.) raised.” Cal.3d at admissibility (9 p. issue Brooks, under In the defendant moved 1538.5 traverse the search warrant” because its supporting section both “to cause, and and did establish probable affidavit contained misstatements entry invalid” for failure to with the knock-and-notice comply “to declare of section 1531. The trial court bifurcated proceedings requirements motion, only granted resulting heard evidence on the first issue. It then and the Court of People appealed, Appeal dismissal case. retrial, this time suppress; reversed. On the defendant filed new motion to had failed to with section comply evidence that presented police Again 1531. The trial court the motion and dismissed the case. granted *52 884 Lorenzana from that the defense was under arguing barred
People appealed, 1538.5 We hearing. rejected new at the second section evidence presenting in we had set forth Lorenza reaffirming the contention. While he principles na, factually Cal. that Lorenzana was distin 9 3d we concluded supra, . . . “Where the trial court elects from Brooks. As we guishable explained: defendant’s motion on the grants to bifurcate the the hearing, suppression the and is reversed on review appeal, first ground presented, subsequently court the alternate should remand to the trial for of ing disposition court (Brooks, 483.) for 26 Cal.3d at grounds supra, p. suppression.” Brooks is barred from prosecution Neither nor Lorenzana holds that the a a 1538.5 motion on the basis of new evidence after relitigating section trial appeal defendant’s conviction is reversed on because of the court’s Lorenzana, denial the section 1538.5 motion. Cal.3d supra, erroneous of that, with a meritorious for 626), petition establishes when simply presented mandate, writ of an court should issue the writ and direct the trial appellate motion, theory the court to the rather than to remand on grant suppression be might present justify the able additional evidence prosecution closely be the search. Brooks more resembles the case Although present involved a writ it did not establish pretrial cause it an rather than too appeal indeed, a we the barring litigation; rule further determined that specifically trial had the new evidence permitted present court defense properly Brooks, v. 483.) reversal 26 Cal.3d at following supra, p. on appeal. (People Shuey, supra, is defendant’s reliance on Equally misplaced People The decision is as (Shuey II). procedural history leading Cal.3d 835 to that motion, of 1538.5 the follows. After the trial court’s denial their section of from Court of That court sought Appeal. defendants a writ mandate the the writ and directed the trial to determine whether granted court sought illegality. (Shuey evidence to be fruit of suppressed (Shuey I).) Superior Court Cal.App.3d 452] remand, theory, an argue On additional People requested permission Shuey I—they one to the had disa that—according opinion expressly hearing. vowed at the The trial court denied original request grant ed division appealed; the motion different of suppress. reversed, Shuey
Court of that the Court of I Appeal holding Appeal “expressly mischaracterized record that the had never prosecution theory. disavowed” the new We and held that Court granted hearing I was Shuey determination that erroneous violated doctrine Appeal’s II, at (Shuey p. 843.) law of the case. Cal.3d II there is in the section Nothing Shuey suggests anything language brought 1538.5 to bar motion under that stat- relitigation suppression There, simply ute court. we following appellate applied reversal *53 case, with “exclusively concerned of of the doctrine law general principles II, We 842.) 13 Cal.3d at p. (Shuey not fact.” of law and issues I Shuey in holding Appeal’s of the Court of that because concluded the additional theo- disavowed” “expressly at the first trial prosecution retrial, court had resolved it at the ry admissibility presented of law, of law of under the doctrine binding therefore of which was question case, however, at defendant’s attempted the prosecution the case. In this between new to conversations relating retrial to present facts correctly points the majority 1978. As Dingle September Detective (ante, apply law the case does the doctrine of of 852-853), out at pp. following evidence fact based on new determination of questions
reversal on appeal. sum, 1538.5 motion of the section relitigation
In here the prosecution’s And bar such a while procedure. The statute does not appropriate. re- previously the case a reconsideration precludes doctrine of law of law, bar based on the relitigation presenta- solved it does not questions a different result. sufficiently are about significant bring tion of facts that at the presented In this case the additional evidence that prosecution that defend- ruling the trial court’s suppression hearing supports reopened as a result thereof were ant’s confessions and the evidence seized physical admissible.
MOSK, J.
v. Mattson
The concede that the case new facts considering only hold that we are here they but seem to obliquely very in We are here with the same They and not law. are error. concerned any first If there were new confessions confessions introduced trial. trial, identify fail them. majority
offered this trial— trial are the same as those in the previous Thus the facts this somewhat, of the passage embellished here and there because changed memories, wit- self-serving prosecution time and somewhat more fading therefore, nesses, issue, is the law essentially only applica- but the same. The in Mattson I. We law was established forthrightly ble to those facts. And the are bound that law. find some law and shift majority mightily distinguishing strain I, In I we article section
constitutional Mattson relied on grounds. we important, But more (37 89-92.) Cal.3d at pp.
California Constitution. *54 of a “It that the introduction abundantly clear that is settled made it prejudicial guarantees obtained in of constitutional confession violation be reversed.” on a confession must se and that a conviction based such per 91.) any guaranty. meant constitutional clearly That (Id. p. at the this message It that did prosecutor get is unfortunate the not attempt he to convict this court’s that must previous opinion: Instead, acquiescence use with the without the of the confessions. purported court, the same confessions that had been charged of the trial ahead with Constitution constitutionally may change, While courts the found invalid. same.
remains the
I would reverse the judgment. court on BROUSSARD, J. dissent. When this case was before this I trial, on reversed defendant’s convictions appeal after defendant’s first we in of the ground against the that a confession obtained violation privilege v. Mattson (People (1984) self-incrimination had been admitted in evidence. 278,
37 85 I with Justice Mosk Cal.Rptr. 887].) agree Cal.3d trial, authority the had no seek at defendant’s second and a new that determination the of new evidence relitigate presentation admissibility the confession. theory the supporting the in her issue concurring opinion,
As Justice Kennard demonstrates a the at the first trial in the context of admissibility of statements arose a pursuant under Code 1538.5.1It is true that motion motion Penal section a on sole ground to section 1538.5 will lie to confession suppress in against violation of the self-incrimination. privilege the confession obtained (Peo Court 734 (Zolnay) ple Superior Nonetheless, it when it is as argued, P.2d case, seized as the fruit of an was in this evidence was physical illegally confession, a the confession was ille obtained decision whether improperly 1538.5 hearing. be in the context of the section gally obtained must made As in “a on the issue explained, ruling we have such situation [confession] . . . 1538.5 Our review of necessarily hearing. became of the section part evidence, which we undertake accord admissibility physical of the 1538.5, that we make a necessarily provisions requires with the section determination in holding or not trial court was correct as to whether Arizona 384 U.S. that Miranda violation has occurred. [Miranda 974).] ruling 10 A.L.R.3d Our on that (16 L.Ed.2d S.Ct. the lower issue then becomes the law of the case and must be adhered statutory Code. All further references are to the Penal (15 courts future in this action. Cal.3d at proceedings p. [Citation]” added.) italics
Justice admissibility Kennard would hold that although ruling on of the confession was 1538.5 properly part hearing section this case, the factual basis for the can relitigated determination be after reversal of the I conviction Here with Justice appeal. part company view, Kennard. In my are parties litigate all the factual and required legal for predicates on a motion 1538.5 at ruling pursuant section *55 they are hearing; not allowed to reserve legal evidence or for argument rainy day. admissibility of the confession was a for the legal predicate evidence, on the ruling suppression physical the were re- People quired fully to litigate it at that hearing.
We have determined that the
are
parties
obliged to
all their
present
evidence and theories regarding the suppression of evidence at the hearing
pursuant to section 1538.5. Having determined that the evidence should be
suppressed, we have refused to remand to permit relitigation of the suppres-
sion motion on a new theory
necessitating
evidentiary
new
hearing. Thus
in Lorenzana v.
Superior Court (1973)
P.2d defendant sought a pretrial writ to overturn the denial of his section 1538.5 motion. We agreed with him and reversed the trial court.
The People argued that we should remand to the trial court to allow them
is,
to argue a new theory,
refused,
that
inevitable discovery. We
referring
the purpose of section 1538.5 to “avoid the continued
of the
relitigation
question of the admissibility of evidence.” (
There can be no basis for concluding that the Lorenzana only rule applies to pretrial motions, review of rulings on suppression but not a judgment which is reversed on If appeal. the policy of section 1538.5 is to full require and final litigation of the factual basis for the claim at suppression the first hearing, that policy applies whether the on the ruling motion is challenged Indeed, before or after trial. section 1538.5 is that the explicit affirming when the reviewing People of the court by judgment are bound People 1538.5, (j).) writ. subd. (§ of a or ruling appeal seek review course, suppres- for the may argument Of a trial court determine one determinative, only evidence may is choose hear sion of evidence issues, if court is and the In such a case the trial court limits point. the first time. may litigated—for issues be remaining reversed on appeal 482-483 v. Brooks (People case, in this because
P.2d But this rule no comfort gives People only actually issues were litigation presented it allows which postappeal at the first hearing.
Here, make the evidence at argument present failed to at admit the hearing first the court the second hearing persuaded re- grossly judicial To allow such a wasteful procedure confessions. sources, did, it full trial. It also calls into as second requiring, capital much reliability scope too for proceedings giving question I testimony. refers would what Justice Mosk to as “embellished” politely *56 us, time and reverse abide decision the first this case was before our convictions. Mosk, J., July for a was denied 1990. petition rehearing
Appellant’s Broussard, J., granted. that the should be opinion petition were