People v. Rich

S004355, Crim. No. 21840. June [No. 1988.] PEOPLE, THE Plaintiff and v. Respondent, RICH, DARRELL KEITH Defendant and Appellant.

Counsel Bach, Maxim Court, N. by under appointment for Defendant Supreme and Appellant.

Gary D. Sowards as Amicus Curiae on behalf of Defendant and Appellant. General, John K. White, Van de Attorney Kamp, Steve Chief Assistant General, Kirkland, Attorney Jane Ward Campbell, Garrett Beaumont and Edmund D. General, McMurray, Deputy Attorneys for Plaintiff and Respondent.

Opinion LUCAS, C. J. Defendant was charged in Shasta Superior Court with four murder, counts of first degree three counts of kidnapping, three counts of force, by rape threats, three counts of rape by use of one count of assault with intent force, to commit two rape, by counts oral one copulation count of force, oral copulation of the victim by one count of oral copulation by 16, a person over 21 on a under person one count of oral attempted copulation, one sodomy count of by a over 21 on a person under person and one count of assault with a deadly by likely means weapon to produce great bodily harm.

Each murder count further as alleged special circumstances that defend- ant had murdered the victims named in the other three (Former counts. Code, 190.2, Pen. subd. (c)(5) (all further statutory references are to this § code unless otherwise indicated).) One of the murder additionally counts victim, alleged defendant had murdered his a child under during 190.2, the commission of a lewd and lascivious act. subd. (Former § (c)(3)(iv).j

The cause was eventually County. During transferred Yolo trial jury, the indictment sodomy was amended to include an additional count of by force. The jury found defendant as of three of the mur- guilty charged

1061 “felony lewd and ders, murder of and the circumstances special found true; to be on the murder” 14” and “multiple act on a child under lascivious second degree of guilty defendant jury murder the found charge other to be not true. circumstance special and found the multiple-murder murder of all counts, charged as guilty found defendant As to the other 18 the jury three but crimes.1 verdicts, sanity the trial

Immediately guilt the returned its jury after evidence present- commenced. to the on the jury was submitted The matter he sane when found defendant was jury ed the The during guilt phase. trial, again matter submitted At the committed crimes. the penalty following The guilt phase. on jury presented during the evidence of parole at life without day possibility fixed defendant’s sentence each of the other of the death for degree imposed for one first murders law is penalty two first death degree appeal murders. This under automatic. (§ (b).) subd.

I. Facts

A. The Case. People’s

The People following: introduced evidence2 establishing 1. Count I—The murder Annette Edwards of early

In her July Edwards from home disappeared Annette Her from her Redding. body days was found three later two miles apart- ment, county about 75 She was lying feet down an embankment off a road. on her back with her her had been below her legs panties pulled spread; knees her A tank her breasts. bloodstained top pulled been above her, can lid also discovered at trash was near and additional evidence was the scene. jaw Her autopsy injuries upper revealed severe her face head. went through

had suffered two fractures: one at left midline and began eye her left to the base of her socket and into the lower of her skull portion rape by guilty rape by of of He was found not of two force and one count use counts (Seepost, 4-6.) threats. fns. convictions, exception challenge degree With the does not of his first murder sufficiency de surrounding the crimes. As to his first the evidence or the circumstances convictions, gree support finding murder defendant asserts the evidence is insufficient premeditation and is evi reveals that there sufficient deliberation. Our review record including support jury’s findings premeditation dence to and deliber findings, all of the (see post, pp. 1082-1083). Accordingly, set ation not be forth facts of the crimes need detail.

1062 brain; the other a similar of her began followed but on the side pattern right body injuries face. The had other The testified autopsy and bruises. surgeon that a substantial of force to inflict the on the injuries amount was required jaw. The by cause of death was as skull fractures inflicted described basal blunt force.

2. Count II—The murder Patricia Moore In early Patricia from a August, Moore motel in disappeared Redding. Her nude body was found over two later at the The Igo dump. weeks injuries revealed severe teeth autopsy to her face and head. Several of her blows, had been fractured broken. Her or head had sustained several most severe of which crushed right side front of her skull. The wound measured about five inches in diameter was inflicted probably by heavy rock. There evidence of manual The cause of strangulation. death was shock from hemorrhage head wounds inflicted blunt force.3

3. Count murder III—The Linda Slavik early Also in Linda in friend. August, Slavik went to bar Chico with a Slavik’s friend a.m.; left the bar about 1 she returned approximately minutes later and found Slavick at the gone. body Slavik’s nude was found Igo dump, about 20 from twice: body. feet Patricia’s Slavick had been shot one bullet entered the front of her other neck and struck her spine, column, bullet was open fired into her mouth spinal causing and severed the instant death.

4. Count IV—The murder Annette Selix On an in evening mid-August, 11-year-old Annette Selix left her home

Cottonwood body and walked to a nearby buy groceries. market to Her day found the following underneath a Shasta She had bridge County. been stripped naked for her The she except panties. autopsy revealed that was still alive at she off she the time had been thrown and that bridge, had been forcibly and had oral suffered copulation. She raped performed several broken as well as internal marks bones substantial Bite bleeding. were found on the victim’s thigh positively and it was determined defendant had inflicted the wound. degree returned a second murder as to this count. verdict oral assault and attempted VI—The

5. Counts V and forcible W on Donna copulation 1978, in Redding Donna W. left her home in mid-June

On an evening be- her from market. Defendant attacked nearby to a began walking and her He hind, grabbed threw down hill. and her her off the road pushed her, him blouse, give if to kill and asked she wanted and threatened to hair no, and ground hurled her to the defendant job.” “a blow When Donna said at He struck her a blunt instrument. her on the head with hitting began climbing her prevented up from injuries least 10 times. Donna’s head more at of the hill for than road; she remained the foot hill to the main and called for help. before a saw her passerby hours - and oral 6. kidnap, rape copulation Counts VII XI—The Robin H. a friend. She

In mid-June Robin H. went to the Anderson fair with defendant, in fair and who was past left the alone around 11 walked p.m., her to his car on the side the road. When defendant called for parked him, declined, off. took off her come to Robin and defendant drove Robin her Suddenly, shoes and running depot. grabbed started to a bus defendant from behind and carried his car. her to hair, seat, and placed

Defendant Robin in the front her grabbed pushed thereafter, legs. her head between her Defendant then drove off. Soon de- her He and fendant ordered Robin to take off clothes. car parked shirt she eyes commanded Robin to lie and cover her with his so down orally see rape could not him. Defendant then to and proceeded copulate him. finally also was re- orally her. He forced Robin to Robin copulate kill leased; lived threatened to defendant told Robin he knew where she and if anyone her she told what he had done.4 - sodomy Counts and kidnap,

7. XII XV-—The oral copulation, assault with Lisa S. rape intent commit 1978, 14-year-old an Lisa S. with a walking

On in late June evening He if next them. asked boyfriend when defendant drove Redding up ride, the door they they boyfriend opened would like a and Lisa’s accepted. so, her, in; her Lisa did began grabbed pulled and to climb as she defendant car, He Lisa to her clothes. into the off. Defendant ordered take off sped charged rape of H. evidence established The indictment two counts of Robin Because the rape by only rape, guilty rape guilty of use of one not of forcible but found defendant threats. Lisa,

then the car parked rape but could not achieve attempted He ordered Lisa out of car and her. penetration. sodomized He also him, orally eventually forced Lisa to released her. copulate 8. XVI Counts and XVII—The Marla Y rape Y. evening early July On an in Redding Marla when walking grabbed her. She knocked fought until he her unconscious. When consciousness, she she regained rolling realized defendant was her toward body of water. She off again began ripped Defendant her shirt struggle. and ordered Marla to remove her Defendant pants. covered Marla’s face with her so she could not see him and then He her pants raped her. ordered not he up to look and then left.5 -

9. XVIII XXII—The copulation Counts oral and kidnap, rape, sodomy Kelly M. of mid-July

On an in evening 15-year-old Kelly M. left her home home, Red Bluff and bicycled to her cousin’s to visit. house As she returned time, defendant her passed by and asked for the then her the hair grabbed her car, and off her pulled eye, bike. He hit her in into the forced her and drove off. While Kelly defendant held and driving, by the hair forced her head between her legs. He ordered her take off her clothes. Defendant car the and parked Kelly forced him. then orally copulate He started the route, car and drove to another location. En defendant threatened to hit her on the head with a if she did do He flashlight not as he asked. also told her that he had a gun under his seat and dead his trunk. body a When sodomized, defendant again, orally car he stopped and raped, copulated Kelly. eventually He her let go.6

10. arrest investigation The and The circumstances surrounding police defendant’s arrest and the investi- gation defendant, are as bike,” In follows: mid-August riding who “street if asked a friend he go riding. wished to “dirt bike” His friend later, declined. About 20 to 30 minutes defendant returned and told his friend he had that found a human him body. Defendant led to the Igo body. and showed him a dump, There were no tire where defendant marks charged The rape indictment two counts of Marla Y. of the evidence established Because only rape, jury guilty rape rape by one found defendant guilty of forcible but of use of not threats. charged Kelly rape The indictment two counts of M. of Because evidence established only rape, one guilty rape guilty rape found defendant not forcible but use threats. driven, the distance not have traveled could defendant claimed to have been he had back in time dump Igo from house to the his friend’s The telephone. the nearest from They police went and called gone. arrived, bodies, investigation. an and began saw police two An- Meanwhile, into murder investigation of their in the course Selix, He was at defendant. officers interviewed County nette Shasta that defend- knew because the police time he was interviewed suspect; not one lasted approximately ant Selix’smother. discussion had worked for Brewer, over, officers, asked defend- Detective it hour. When was one murder,7 Selix on the if examination polygraph ant he would submit to a and defendant agreed. 4 p.m. at County Department at Sheriff’s

Defendant arrived the Shasta defendant reported Brewer learned that following day. Detective bodies. he defendant about those finding asked Igo dump, bodies at two, not at only body, dump. one Defendant that he had seen replied as no yet Detective that because there was evidence Brewer concluded murder, but was evidence the Selix there connecting or it be “more relevant” Igo defendant found the bodies at the would dump, mur- “more the Slavik and Moore question reasonable” to defendant about ders examination. during the polygraph examination

Defendant the room the polygraph was taken to where v. Arizo- (Miranda would be was read his Miranda rights administered. He 974]) 10 A.L.R.3d (1966) na U.S. 436 L.Ed.2d 86 S.Ct. [16 on rights and waived He of his Miranda signed them. also written waiver “Waiver, for entitled, County Department, a document Shasta Sheriff’s at defendant putting Test.” After Polygraph procedure explaining ease, the polygraph examiner administered the examination. questions asked examination about 15 minutes. One of lasted to he claimed body had girl

defendant was whether he murdered the whose over, the examiner have found at When the was Igo examination dump. and informed outside of spoke presence with Detective Brewer defendant’s in the him he he involvement lying that believed was when denied defendant further about murders. him questioned Brewer then met with defendant and the murders. only suspect at this defendant was point

Detective Brewer testified that test. Brewer to the he had failed the apparently polygraph extent that because, they explained, Se- 7The police to submit to the test as “[Annette asked defendant to [they going coming in . . point lived Cottonwood and it was almost. to the were] lix] everybody polygraph.” run in Cottonwood. Cottonwood on the Defendant lived informed had lying defendant that it he been appeared during polygraph examination. thought fairly Defendant that he the test was adminis- replied tered, and he could not he failed it. explain why

Brewer then discussed with defendant “what I to be unusual thought or activity, behavior unaccounted for an not accounting that was satis- [or] factory.” nervous; Defendant eye became he lost contact with Brewer and for paused long periods before Defendant twice responding questions. he stay said Brewer him going leave. asked and talk about the leave, Finally, case. defendant he was up, going stood said told Brewer, you, “I’ve to tell but not said he got something now.” Defendant out, call days, would in a way Brewer few and left. On his defendant asked card, for Brewer his business and Brewer Brewer asked defendant complied. he when could a call and expect days. defendant said within three Defend- then ant left.

Early evening, met Gale defendant with friend Croxell and Cro- xell’s girlfriend. Defendant told them that he a poly- had taken and failed examination about graph finding the bodies at the he said Igo dump; only question he got right his name. The three went to defendant’s they house where discussed matter further. Croxell asked defendant road; he rode why his street bike on a dirt said “he to see defendant wanted they if still there.” Croxell then asked he defendant whether [were] murder; committed the defendant said He yes. Angels paid said Hell’s $7,000 him to kill the girl. body; Croxell also asked again, about second said, “yes.” He he said had met her at Madison Bear Gardens Chico, and had killed her because “she at was in the wrong place wrong time.” then He acted out the Slavik kidnap and murder of Linda and “he in told friends shot her the head and the neck with a .22 [-caliber pistol].”

Defendant he said had thrown in a river and the would pistol police rifle, never find it. He also said that the .22 to kill which he had used woman, Later, other at his was mother’s house. Croxell’s contact- girlfriend ed department the sheriff’s and gave them written statement which in- cluded information that one of the murder was at defendant’s weapons mother’s house.

Around 9 evening, that defendant two a liquor saw of his friends near store. He them and he approached told them had failed the lie detector test.

He said “he until 7 day o’clock the next with an or up come alibi [the said, were police] him going pick up.” “Hey Before defendant leaving, $7,000.” I’ll guys, you. level with I snuffed her for Brewer re- When Detective the police. friends telephoned Defendant’s immedi- arrest defendant he decided to information ceived this additional Bar outside Oarlock motorcycle He defendant’s ately. learned that officers, at the bar about Brewer, arrived by other accompanied in Redding. he was not told Defendant was defendant under arrest. and p.m. placed to the sheriff’s back arrest; going and told he was under he was handcuffed station. back to the drove defendant Officers then department. room; a station, interrogation in an was placed

Once at the defendant knowledge on- without defendant’s system was turned tape-recording A transcript almost two hours. defendant for Detective Brewer questioned interview, charged various of the confessed to of the in which defendant murders, spans pages. interview, returned to

At the Brewer and defendant conclusion a warrant 2 a.m. and retrieved without Oarlock Bar. arrived about They park- a car located the bar’s some defendant’s from personal property search. lot; the car consented to the ing both defendant and owner of area, point- and defendant Brewer then drove with defendant around the they out where be He also told Brewer ed evidence could discovered. house. Defendant’s should retrieve the .22 rifle from defendant’s mother’s town, house; her mother was out to a search of and defendant consented rifle, closet, it to him. he led to a and handed up Brewer bedroom picked They a.m. Defendant was booked returned to the station about 3:30 50 miles Burney, approximately to the sheriff’s substation in transported in the Burney being from instead of housed Redding. transported He was the sheriff’s County jail Shasta trustees had informed jail previously because be Selix murder “would for the department person responsible taken defendant jail.” leaving, care of when he our Before placed Burney. examination at agreed to submit to a second polygraph Swartz, a public Later in defend- early morning August Russell er, had not Burney requested visited at substation. Defendant for arrange an arrived to to see the time Detective Brewer attorney test, was informed the second Swartz had left. Brewer polygraph Eoff, Burney by in charge Swartz’s visit Lieutenant sheriff deputy legal Baker for Attorney substation. District Robert Brewer telephoned exami- could the polygraph advice. Baker Brewer that he with proceed told not if it. Baker that Swartz had nation defendant wished to take explained defendant, involved “was and that appointed been to what represent counsel, a He to seek client.” right to not counsel’s right [defendant’s] entirely.” to [question] counseled Brewer to “leave the [defendant] defendant, Detective Brewer contacted who to another agreed poly- take graph interrogation examination. The was interrupted when re- Swartz turned the substation and advised Brewer to that defendant was “his cli- ent.” Swartz also told defendant to Brewer stop talking. informed Swartz advice had legal he received and the two then telephoned District Baker. Attorney Baker advised Brewer again it was to be left to “[t]hat entirely. to advise him that it was his to choice whether [defendant] [I was] not, retain as counsel or and that choice by was to be made [Swartz] If he chose to retain or be by [him], to represented [defendant]. [Swartz] not, naturally then we to if were we could stop; with our proceed polygraph examination.”

Detective Brewer informed defendant that the his. choice was Swartz told defendant at least twice that he could be facing the death Defend- penalty. ant was then asked whether he wished Swartz represent to him and defend- ant said guessed “he All interrogation he’d better.” Swartz ceased and left. afternoon,

That a consent search was conducted of defendant’s residence. The refrigerator was searched and to found contain items An- the grocery nette Selix had purchased moments before she was The follow- kidnapped. 25th, day, August ing Detective Brewer obtained the services of a techni- cian from a local hospital, who retrieved hair and from blood samples defendant pursuant to search warrant.

On August Lieutenant Eoff in jail. visited defendant Defendant began about speaking his his parents and childhood. then He told Eoff “he didn’t how understand he could have done what he did.” On after August defendant’s arraignment, he Eoff that he had told been embarrassed everyone looking at him in court. also Eoff He asked why investigation was continuing when he had committing admitted crimes. explained Eoff that an does not is investigation end when a person said, taken custody. into Defendant “I’ll I admit to have done but anything I to anything won’t admit I haven’t done.” He added that he “should have stopped long ago time but couldn’t.” a.m., about following day, defendant told Eoff he to speak wished

him but that he wanted to talk attorney with his Eoff allowed first. Swartz; defendant to telephone they for spoke about five minutes. On the cell, way back told Eoff that he with speak still wished it, him. Eoff defendant “to think told about and if he still wanted to talk to Thereafter, atme a later time I would listen to say.” he whatever Eoff received word around p.m. that defendant him. speak wished to with me” talk to him “that he shouldn’t with and told Eoff met defendant he to wished insisted attorney “he at that Defendant point.” because had an listen to he would any that questions he not ask but talk. Eoff said would say. what defendant wished to conversation; he tape-record

Eoff informed defendant that he would tape cell. a it into defendant’s brought obtained recorder and tape then admitted on; defendant recorder was view and turned placed plain was asked defendant only had Eoff that he killed Annette. The question that he clarified 11-year-old whether he was to defendant girl; referring Later, off the to turn was defendant Eoff referring signaled to Annette Selix. recorder; tape Eoff complied. he was everything

Defendant he that then told Eoff had “made a list of than responsible for and he done else other what anything that hadn’t said on if he the list and Eoff the list.” Defendant asked Eoff wanted to see yes. “everything that Defendant handed him a and reiterated piece paper him; he if list was for had done was on that list.” Eoff asked defendant said, you can a you copy defendant would like to have a I make copy “[i]f if it.” a machine he Defendant then Eoff he use copy told that could also had and I one available. Eoff “Fine. have machine here copy We replied, defendant, can make a copy original of it.” When Eoff returned the said, it, “No.” defendant sign asked Eoff if he him to Eoff wished August On defendant transported Detectives Lambert and Brewer Burney from Brewer for While Redding waiting, a court appearance. girl- asked Lambert what one of officers had learned from defendant’s friend, Mun- Darlene it that Munsinger. Lambert responded appeared . Lam- singer had . . . . According out . what was on.” “figured going bert, true he defendant then volunteered that he “knew this was because had defend- girlfriend told that he had Lambert informed girl.” killed ant that he he could not not to discuss the case and that “preferred” he him. or question only rapes Defendant that “the murders responded given had on the list and committed were the ones that he written down to Lieutenant Eoff.” with

On examination September defendant took another polygraph test. Redding Swartz’s for the Burney consent. Eoff drove defendant from route, Ed- En Annette they drove a road near the location where down through body him to drive wards’s was found. Defendant said it bothered the area he could not discuss “because of what here.” Eoff said happened examination, Detective Lam- the case. After the asked polygraph mur- bert concerning whether he knew results of the test questions der ¡Ruel. questions of one He Georgia told Lambert that one he girl

whether had thrown a off a he that he had bridge; explained thrown off a girl bridge, way Burney, but she not Ruel. back to was On defendant asked Eoff if he knew results of test. He told polygraph better, Eoff that “he felt much that had and he he taken the felt polygraph it.” passed He further all he stated that “what he had admitted to was that had done.” 8, September

On Detective Lambert secured search warrant authoriz- him ing to obtain a from sample bite defendant. Defendant which inquired marks; victim bite was possessed Lambert answered that it Annette Selix. Defendant said he did not biting remember her. Pursuant to a second search warrant, Lambert day; obtained additional teeth the following impressions defendant told Lambert that “he was he sure had not bitten Annette Selix.”

On November sent defendant for Detective Lambert and asked Lam- why bert he did not like him. He disliking Lambert denied defendant. that, victims, explained seen the having bodies the murder he could defendant, understand why someone with less would hate but experience Lambert, he did not feel way. According to replied “[defendant] bodies, that he knew the because he seen feeling only and that the he got reason caught because he wanted to be caught.” On December Detective Lambert was informed that might defendant, attempt suicide. He went jail to the with speak who told Lambert that he very and depressed, had tried to himself but was hang unable to go through with it. He also said that he had left a letter for Lambert a shoe box and that Lambert could have the letter. Lambert defendant, retrieved the box brought shoe and it to gave who letter It Lambert. stated in “I anyone kill I I’m part, didn’t that I hadn’t said did. truth, you telling myself. whatever. I help hate God me.” B. Evidence Defense above,

As noted presented defense no evidence at the additional trials, sanity and penalty but instead relied on the evidence introduced at the guilt trial. That family, evidence was as follows: Defendant’s complete medical and history social presented were through lay numerous witnesses mother, (defendant’s sister, uncles, ex-wife, two his ex-girlfriends, three doctor, family teachers, two of his grammar school his school grammar teacher, principal, his school his psychologist, high both his eighth-grade teachers, school assistant principal two principal, high school coworkers, worker, officers, four a psychiatric social three a Cali- probation officer, fornia Youth Authority parole agent, a as police others) as well six expert witnesses. was His mother difficult childhood. a and had adopted,

Defendant was and living, for a children of other people’s She took care domineering. Neverthe- received. children those other resented attention defendant less, child children, another rescued and once with the other he was helpful from a canal. school, in back kept and was grammar

Defendant in poorly performed He few friends. constantly, and he had fought the first His grade. parents might defendant reported who psychologist, was referred to school violent, treatment. received no become but defendant when he was divorced parents He tendencies after his exhibited suicidal California, in he his mother Southern years Initially about 15 lived with old. Cali- in Northern stepmother live his and new but returned to with father year in his sophomore fornia. His deteriorated academic performance school, grades where his high school. He transferred to a continuation and sometimes truant. He for was improved. fighting, was suspended At a he went disagreements girlfriend, after one with age of numerous chest, attempted in in what an hunting possibly and shot himself was Later, car, he hoped suicide. he fired a shot over a and claimed police evalu- officer return fire kill him. A subsequent psychiatric would and treatment, but defendant urged ation disclosed defendant was suicidal and therapy. terminated the he another auto-

When was 18 he became drunk and rammed repeatedly county jail a mobile with his car. Thereafter he was sentenced to mother’s defendant camp, where he His officer noted counseling. probation received otherwise, had a short he drinking; when was temper, especially friendly was psy- and The officer recommended defendant seek responsible. he chiatric in help, counseling jail but defendant maintained that after his was “in control” and had learned to deal with his temper. defendant, a

At attacked drinking, a crazed manner after acting a iron. heard he person with tire When he smashed police approaching his and off. He was through fist the windshield of victim’s car drove arrested, and He sen- being injury. went berserk while treated for his was not was as Authority. diagnosed tenced to California Youth There he but it that he exhibited having psychological recognized was problems, girlfriend pregnant bizarre behavior. Defendant learned that his child, him, released, lived his wife and they married. When he with job secured at lumber mill. Thereafter,

Initially, progress good. his felt defendant’s parole agent months, however, five wife two For next defendant hit his on occasions. Then, he control himself. he in a car managed April injured 1976 was face, accident required stitches on in a resulting numerous his severe scar very across nose. This In late once made him 1976 he depressed. wife, leave, again hit his and in did. August he told her to which she They divided their property, voluntarily and defendant child paid support. work, At defendant became less cheerful and more and his hot-tempered, attendance deteriorated. out-of-state,

He met Darlene was she Munsinger, who from and visiting left, moved in They with him. and only had and she to return problems, leave again after a At once fight. defendant’s returned request, Munsinger more to him stay with 1978. In April again July and June of late she left him him; for the last she time because she had become afraid of thought he him an leave When provoked fights give excuse to the house. he learned she was he he said was would not be around leaving glad she stuff,” “when all asked, the stuff came up.” Munsinger and defendant “what now,” you “I’ll replied, tell sometime not that if he her but and had met earlier “none of this would have happened.”

Each of the women with romantically whom defendant become had involved testified defendant engaged had in sexual intercourse with them consent, acts, mutual and that he had not in unusual such as engaged sodomy. above,

As noted defendant six presented witnesses. He first called expert Kaldor, the two court-appointed and psychiatrists, Drs. French both whom testified that he although personality, defendant had an antisocial sane, and did not suffer from mental that would prevent disabilities forming the intent to kill. defendant,

Dr. Wilson testified difficulty he had but be- he diagnosing lieved defendant an might suffer from disorder.” He explosive “intermittent cross-examination, however, admitted on did have the ca- that defendant intend, pacity to premeditate, as as non- killing, and deliberate a well homicidal offenses.

Dr. Morrison also diagnosed suffering defendant as from intermittent disorder, disorder, explosive major and a depression, personality borderline but he stated an that defendant did not fit the one profile suffering from antisocial or personality, sexual sadism. Morrison could believed defendant Moore, not form kill the mental states to and kill and rape Edwards or to Selix, and commit sexual acts but could not at a against Morrison arrive conclusion the Slavik as to homicide and sexual He felt acts. defendant Edwards, insane at the against time the crimes Moore Selix. and explosive intermittent from an Dr. testified defendant suffered Satten felt He damage. had mild brain and disorder and a borderline personality, per- antisocial from an suffering not one defendant did meet the profile Morrison, believed Satten Dr. Like sonality disorder or sexual sadism. and kill Edwards and rape the mental states defendant could not form Also, like Morri- Moore, Selix. against or to kill commit the sexual acts son, against crimes time of the Satten insane at the believed defendant was as to the Edwards, Selix, arrive at conclusion Moore but he could not Slavik sexual acts and homicide. subjected defendant

Finally, Dr. Axelrad that he testified session, defend- results showed and that the lengthy narcoanalysis hypnotic disorder, explosive intermittent (i) personality ant suffered from borderline disorder, antisocial per- not suffer from major (ii) but did depression, he felt Unlike sonality experts, the previous disorder or sexual sadism. of the homicides to each capacity suffered from diminished as Slavik, he crimes as to which and each of the related for the of (except rape insane was testified he could make a He believed defendant judgment). not crimes, he Dr. Morrison at the time of the but like homicides and related he as to the non- judgment stated had insufficient make a information to S., W., H., Y. and Marla homicidal offenses Robin Lisa against Donna M. Kelly

C. Rebuttal Experts

The Von Dedenroth testified People offered four rebuttal. Dr. experts in that Dr. been narcoanalysis improperly Axelrad’s interview had hypnotic conducted, and to form that it basis on which provide did not sufficient stand, also ques- valid Dr. and psychiatric diagnosis. Kaldor resumed tioned the such results his belief that narcoanalysis of session. He stated his are and reaffirmed techniques generally unreliable for he factfinding, at testimony capacity earlier not diminished that defendant did suffer from Likewise, time his previous Dr. reaffirmed homicides. French by testimony, narcoanalysis session conducted questioned validity of Axelrad, Finally, report. Dr. in Dr. Morrison’s noted inconsistencies vari- Dr. failure about memory Robinson testified defendant’s that asserted dysfunction, psychot- or killings by organic ous of was not caused brain mem- ic evidence of current functioning, or and there was no schizophrenic defendant ory dysfunction. given results various tests He testified that faking “badly”) (and the other experts simply disclosed He his actions. gain order to and avoid for sympathy responsibility explosive midst of an admitted on that a in the person cross-examination disorder that time. might memory during lose

II. Issues Pretrial A. Jurisdiction Court Shasta Superior noted, Thereafter,

As County. indictment filed in original Shasta defendant notified the court venue. The change'of trial that he would seek a prosecution belief expressed granted its that if the motion were the court should, Court, 842 of pursuant rule the California Rules of contact the Administrative Office of the Courts to seek out an transferee appropriate court, all County.” legal motions would be held here Shasta “[b]ut court agreed.

Thereafter, the following venue motion was continued to the week. The stated, however, court may confirm as well on the record the discus- “[w]e sions we had in concerning chambers the convenience factors would venue, affect a motion for in view of the rules that change court’s require that all further be county to trial in the to which proceedings prior transfer would take I feel that are reasons it place. why there substantial would be prejudicial to sides both to move the matter which prematurely, counsel, would require traveling back and forth by parties and their which would be probably lend itself to better time-consuming handling not I matter. will check with the Administrative Office of Courts be- tween now and Monday next . verify what the are . . .” possibilities

Defendant thereafter filed venue At the hearing, prosecu- motion. tion offered to stipulate that all heard in pretrial motions would be Shasta County. Defense I responded, counsel to us. “[tjhat stipulation acceptable is whether, have question some in my actually mind as to if makes the court an court, order in transferring jurisdiction venue another whether it has spite that stipulation to matters in this continue the law and motion matter, county. I know we my have discussed it is desire and this and motion, matters, desire that in legal law and retained this be [tdefendant’s] county.” (Italics added.) believe,

The court in explained, you “I as I cham- gentlemen, informed bers, that this can be accomplished. I it of the discussed with representatives Courts, Administrative Office of the is a deal of apparently good and there flexibility. IWhat will isdo take the under and techni- motion submission cally it grant later if I in have to matters. order to law and motion process Otherwise we may be able make the of law subject order to continuation and motion here. So I proceedings the motion is taken submission. under action, will notify the Judicial Council that I desire the transfer of the see what other courts . .” are available . . held. The hearing another 1978)

A days (Sept. few later that Lake decided and it was the various options court informed counsel of stated, “I will court forum. The County alternative would be preferable transfer I propose Courts that notify the Administrative Office explora then subsequent we will determine County. matter to Lake And make which we not know of factors which do any tion whether there are Lake with contact open At at this we will direct stage that undesirable. least have they might that County any determine limitations Court and Superior it is And course in affect our decision. trying the case which would investigation if that come back still make another choice possible to there.” reveals against going factors which would militate later, would the matter Over asked when prosecution seven months “Well, answered, it is County. primarily be transferred to Lake The court you point to when the balance rely you I on as up gentlemen. gentlemen be down everybody else to you is reached so it is convenient for more there . . .” rather than here . up were not pretrial court defendant’s case appellate proceedings asked

finalized for The court then another 11 months—until March 1980. whether, counsel locations delay, a new list of trial light possible should be obtained the Courts. Both from the Administrative Office of defense counsel and should be agreed another location prosecution mid-March, In be the County considered. it was would decided Yolo formally new trial location. In the mo- granted the court mid-April tion and transferred County. the matter to Yolo 29, 1978. argues

Defendant his venue on granted September motion He any insists the jurisdiction Shasta Court lacked to rule on Superior matters, date, matters after that thereafter” and that “all orders or rulings in the Shasta or Yolo is Courts were “void.” Defendant’s Superior premise faulty: the Shasta venue until mid- Superior Court did not motion grant 1980. April we defendant’s claim meritless. Accordingly, find maintains, however, to

Defendant that the trial court was required rule on v. 70 immediately. (1977) the venue He Moore Powell motion cites 583, Cal.App.3d 914], 587 for trial Cal.Rptr. the proposition [138 court venue power any lacked rule on other issue to prior deciding to Moore, however, motion. civil distinguishable change is because it involved Procedure, criminal of venue under the change Code of Civil not venue pursuant to Court. Rules of

Rule 840 of the that “Rules to provides California Rules of Court 844, inclusive, govern shall the transfer of criminal actions or proceedings.” for

Motions section 1033 fall within this change pursuant venue rule. Court, (See Cal. Rules of rule 844 are silent as to 841.) through Rules motion; criminal they when a trial court rule on provide must venue ordered, immediately that once the is “the clerk shall make simply transfer out and transmit to the court to which action is a certified transferred record, in copy of the order of transfer the action pleadings proceedings including the undertakings for the of the defendant and of the appearance (Id, 843.) witnesses.” rule We the Rules of Court did not prohibit conclude the trial court taking from the venue motion under submission and deter- other mining pretrial motions.8

B. The Suppression Motion

Defendant’s motion to evidence of various statements he suppress made evidence, to the other police, certain and denied in granted part part. He now the court’s failure to his challenges grant motion suppression entirety. its We conclude the court did not err in its denial of partial defendant’s motion.

1. The suppression hearing At the suppression hearing, the trial court excluded the statements made Bar, defendant on August 24 following his arrest at the Oarlock includ- ing tape-recorded confession to Brewer 45-page Detective and the tran- script of confession. It also the rifle from suppressed seized defendant’s house. mother’s Defendant that the trial failed to complains suppress: court 23, “1. 1978, The statements ... police made on at the station August (before and after the 2. polygraph examination); Items of taken in property 24, the search of 3. Items of August 1978; residence on [defendant’s] [de- property from a warrant; taken friend’s automobile without a 4. fendant’s] Items of obtained to a search personal property pursuant [defendant’s] 25, and, warrant on 1978; August 5. from property Items taken [defend- 9, 1978, on person to a warrant.” September search pursuant ant’s] Defendant additionally “1. challenges suppress: the trial court’s failure to Detective Lambert on Au- made [Defendant’s] admissions/confessions 1978, 31, 6, 1978, 9, 1978, 28, 1978, gust September September November 29, 1978, and, 11, 1978; November 2. and December admis- [Defendant’s] 1978, 26, 28, on August August sions/confessions Lieutenant Eoff Philip 29, 1978, August 1978. it September Nor did order sup- [fl] 8We note that in provide, change 1983 section 1033 was amended “When a of venue is court, by superior ordered the it shall proceedings be for the trial All before trial shall itself. venue, county occur in original except particular proceeding it is evident when that a by 1033, judge preside (§ (a).) must be heard iswho trial.” over the subd. friends to certain and/or acquaintances statements pressed [defendant’s] 1978, station 23, police he left the after on August by made [defendant] his arrest.” moment to the test) up polygraph (having completed

2. Discussion the state- that “all of to be argument appears

The thrust defendant’s the inherent- by were produced and confessions made ments [defendant] analyze sepa- each item We officers.” ly coercive tactics of law enforcement admitted. was properly and conclude that the evidence rately, the admission challenges 23. Defendant August a. Statements of of August examination after the polygraph of statements made before and and our independent 23. record citations neglects Defendant to provide any made before has admissions review of record failed disclose Further, any to suppress trial counsel did not seek examination. polygraph only address Accordingly, examination statements. we prepolygraph interview. examination postpolygraph (Mi- noted, rights his Miranda (and waived)

As defendant was read he randa, He 384 U.S. before examination. supra, 436) taking the polygraph itself. also his Miranda examination rights regarding waived polygraph entitled to argues Defendant that once he test he was failed polygraph his at new advisement of We note the outset that rights. disagree. We interrogation. interview was not tantamount to a custodial postexamination interview, than stated during On more one occasion defendant posttest stay discuss he to leave Detective Brewer him to going but asked Brewer leaving. the case. At time did prevent no Brewer defendant from about.” simply “stay you’re talking asked defendant to and explain what discussion, he say he did not When defendant decided to terminate the rather, leave; wanted to he and left. up stood physically validly a his assuming But even custodial waived interrogation, rights police constitutionally postexamina- Miranda and the conduct could his seriously “unless tion the circumstances so questioning changed voluntary, making no were no longer answers or unless he longer rights.” or of his ‘knowing intelligent relinquishment abandonment’ 218, 103 S.Ct. (Wyrick v. Fields 459 U.S. L.Ed.2d (1982) [74 394].) the fact that he “was with emphasizes

Defendant confronted “fresh” warnings. as for deception” requiring answers indicated the basis court, argu a similar rejected reversing ruling, Fields lower court need indicating the relied on two facts stating, Appeals ment Court of “[t]he 1078

for a of warnings: new set the examination had been discontin- polygraph ued, and the explain was asked he could test's defendant] [the unfavorable if results. To facts warnings new because of these two is unreasonable. require Disconnecting significant change effectuated no polygraph equipment of [interviewing] character The could have interrogation. agent informed the examination that his indicated during answers [the defendant] disconnected, deceit; why after the asking defendant], equipment [the any the answers were him not more of bothering coercive. Court stated that there was no his Appeals indication or defendant] [the lawyer be anticipated questions would asked after [the defendant] examination. But it would have been unreasonable for and [the defendant] his attorneys to assume that would not be informed of the [the defendant] polygraph readings any (Fields, and asked to unfavorable explain result.” 47 supra, 218-219], 459 U.S. at L.Ed.2d at p. added.) italics pp. [74 We slightly note that the Fields received a defendant different set warnings defendant; from those given present Fields was expressly informed that he “a . . right answering . even if stop questions [he] This, however, sign[ed] a waiver certificate.” does not affect the reasonable- ness of the assumption that defendant would be informed of the test results and about his questioned voluntarily Defendant submitted responses. polygraph examination; he informed of his and rights was twice waived facts, them. Under these we informing cannot fault the for police of the results of the test for explanations. and requesting

Nor do we his agree invoking right that defendant was to terminate the interview when he to leave. Defendant was expressed desire aware his rights; he was free to terminate rights invoke the interview at any time, time. any Defendant was also free to leave at and indeed ultimate ly did so. On these facts merely we conclude that defendant was disclosing interview, the desire to terminate it. postpone not to error, Even we clearly if were to we it assume would find harmless. 705, 710-711, v. (Chapman L.Ed.2d (1967) U.S. [17 California 87 S.Ct. 1065].) only A.L.R.3d It that the appears incriminating statement defendant made in the interview after the first exami polygraph nation was that he rode his street bike on dirt roads. Defendant provides statements, record citations to our incriminating no other review of the record In discloses none. light defendant’s admissions subsequent confessions, the admission defendant’s statement could not have posttest affected verdict. b. admissions to examina polygraph Defendant's friends after test,

tion. After the defendant met friends and admitted polygraph with

1079 Igo at the found bodies were the two women whose that he had murdered po various encounters with that his “persistent Defendant contends dump. to ac his confessions for later ‘motivating’ lice officials were factors [his] ” 541 Cal. 2d 70 (1969) v. Johnson People He relies on quaintances/friends. claim. 865, his 401, 366], support 450 43 A.L.R.3d P.2d Cal.Rptr. [75 rule, it the well-established distinguishable; simply applied Johnson is subse upon or and then testifies “Where an accused makes one confession testimony or confesses, the is that it again presumed quent questioning (Id., Defendant p. 547.) the the at second confession is of first.” product interview; the anything during postexamination this case did not confess to police of subsequent nor his the product was his confession to friends mur friends that he voluntarily admitted his interrogation. Defendant court We with the trial dered two at Igo dump. agree the women found the conduct. police that the of product illegal the admissions were not confession, the 24). obtaining After (August c. Search car and, Bar with with to the Oarlock Detective Brewer returned owner, and seized entered the car consent of defendant and the vehicle’s as this search tainted personal defendant’s Defendant property. challenges trial court. by by his inadmissible previous confession Brewer found If, record, as On this we are of the consent. precise timing uncertain of making suggests, record defendant consented to the search before confession, If, however, is defendant consented suppressed there no taint. confessed, the vehicle search after and the search he the consent is tainted invalid. latter, admitted

Assuming properly the evidence was nonetheless v. inevitably Superior because it would (Lockridge have been discovered. 166, 731, Court (1970) 683].) 3 Cal.3d 474 P.2d 170 Cal.Rptr. [89 police knew defendant had to his friends that he murdered confessed women; two Bar lot and they found defendant in the Oarlock parking learned, arrest, before had personal property him under that he placing arrest, inside a certain vehicle. When an officer defendant was under placed facts, car in the guard remained behind to the vehicle. On these the evidence The trial would have been discovered even without defendant’s consent. court err in ruling therefore did not the evidence admissible. writ- 24). gave d. Defendant (August Search residence of defendant’s on challenged

ten his is consent for a search of residence. This search also to Detective confession by it was tainted the suppressed basis Public Deputy Brewer. are uncertain of the consent. Again timing we early August morning Swartz met with defendant in the hours Defender 24, to the search of before the arrived. If defendant consented police Swartz, arguably residence after with the taint attenuated. speaking v. (People Sesslin (1968) Cal.2d 439 P.2d Cal.Rptr. [67 degree taint from ‘attenuation’ which suffices to remove the 321] [“That evidence directly obtained as a at requires result of unlawful conduct police an least intervening act the defendant or a third which independent party breaks the linking way causal chain illegality and evidence such the evidence is not fact that ‘by exploitation ”]„) obtained On illegality.’ hand, other if defendant to the search after suppressed consented counsel, confession but before with tainted. meeting then the consent was however, Again, inevitably evidence would have been discovered. Defendant was under for If to a arrest murder. he had not consented search residence, and, of his a warrant would been on basis of the sought have friends, information provided by defendant’s would have been obtained. The evidence thus would have been even without defendant’s discovered consent. trial Accordingly, the court not err in evidence finding did admissible.

e. Blood and hair hair sam samples. August On blood and were ples taken from defendant to a search warrant. Defendant pursuant warrant, challenges the it based claiming entirely on statements made during the suppressed confession to Brewer. We that the affidavit agree conclude, relied on statements made We how during interrogation. ever, that defendant has failed to establish because the evidence prejudice inevitably would have been discovered. is

It undisputed that hair and have obtained samples blood could been to a pursuant valid warrant based his on defendant’s admissions to friends. murder, In connection with the Selix affidavit could have detailed incriminating evidence during discovered the consent search of defendant’s least, residence. At very could have been obtained samples following Thus, defendant’s subsequent beyond admissions. the error was harmless reasonable doubt. at 24 at (Chapman, supra, U.S. L.Ed.2d p. pp. [17 710-711].)

f. admissions to and Lambert. Defendant chal Defendant’s Eoff lenges several admissions made August to Eoff and Lambert between and December 11. He insists that these statements were “the direct product and result” illegal police interrogation. record, however, shows that freely spoke defendant and confessed his arrest, anyone

crimes to who listened to him. Before his defendant admitted to his friends that he had murdered the two women he claimed to have found at the Igo dump. The friends notified the and defendant was police Shasta in the three women he murdered arrested. He then admitted that County area. specifically been attorney, having as

After Swartz his accepting several initiated defendant not to talk to police, instructed repeatedly officers Both Lambert. with Eoff Detective conversations Lieutenant case; his liberty at to discuss they were not told defendant repeatedly Indeed, speaking even volunteered information. defendant nonetheless after state Eoff a voluntarily tape-recorded attorney, gave his with commit ment, he had list of all the crimes as as handwritten well attorney, told defendant, consulting soon The fact that after ted. inde intervening “an clearly talk to constitutes Eoff he still wished to him the initial any sup taint from by the defendant” and purges act pendent We there 428.) 68 at (Sesslin, supra, p. confession. Cal.2d pressed ad his various oral and written fore find meritless defendant’s claim that been excluded. missions to Eoff and Lambert should have 9, 8 teeth g. impressions Teeth On and impressions. September makes the obtained from a warrant. Defendant were defendant pursuant warrant, entirely on statements challenge claiming same to this it was based 8, de By September made the during suppressed disagree. confession. We discussed. already fendant had the admissible given previously confessions by a The information set in been established forth the affidavit thus initial, v. Wil (See source confession. Nix independent suppressed 385-390, 431, 377, 104 liams 467 441-448 S.Ct. (1984) U.S. L.Ed.2d [81 2501], and cases therefore lawful. cited.) search was

III. Guilt Phase Issues Sufficiency

A. the Evidence of is evidence of planning

Defendant there insufficient alleges He that he murdered his first murder convictions. claims support degree Edwards, fit of or rage.” Slavik and Selix “in a anger is limited to inquiry In of the evidence our reviewing sufficiency “ essential elements ‘any whether rational trier of fact could have found the ” 26 (1980) v. Johnson beyond (People of the crime a reasonable doubt.’ 431, 738, 557, 1255], 576 16 A.L.R.4th Cal.Rptr. Cal.3d 606 P.2d [162 560, 307, v. 443 318-319 L.Ed.2d Virginia (1979) Jackson U.S. quoting [61 572-573, in the S.Ct. in We view the evidence 2781], original.) 99 italics “ below, in of support favorable and we light judgment ‘presume most reasonably deduce every of fact trier judgment existence could ” 576, v. 26 at quoting People from the Cal.3d (Johnson, supra, p. evidence.’ (1969) Mosher 1 Cal.3d 461 P.2d Cal.Rptr. [82 659].) in Viewing light, the evidence this we find it sufficient to support convictions.

First, defendant’s first murder in I was based degree conviction count on murder, felony murder, not premeditated and the evidence established that and then raped killed Edwards. With to the murder of respect Slavik, the evidence the bar showed that defendant lured her out of drove her to the There she was and then shot at Igo dump. raped, stripped, close range while she was to the ground. on With murder sitting respect Selix, show evidence tended to that defendant her in picked up house, her, Cottonwood and drove her raped to his where he and sodomized and that he then drove her off a almost miles threw her 105-foot high bridge. jury’s We believe the supports finding premedi- evidence tation murders deliberation of Slavik and Selix. Alleged

B. Interest9 Conflict arrested,

When defendant was Robert Baker was the District At torney election, County. Shasta After Baker was defeated the 1978 he was retained as a special prosecutor mid-January this case. In complete 1979, Ahrbeck, Baker shared office with Mr. space Werner a criminal defense attorney. Ahrbeck later became cocounsel for defendant. Defendant now asserts that these circumstances constituted a conflict interest and of denied him a fair trial. chambers,

During a discussion in (Swartz both defense counsel and Ahrbeck) informed Shasta Court Small of the Superior Judge office-sharing arrangement. Although they Ahrbeck and Baker shared office space, were not in business and in together kept each his files secured areas. separate, defendant, Defense counsel they had discussed the matter with explained Thereafter, court, he objection. had no open defendant was informed that only relationship between Baker and Ahrbeck would be that of landlord and tenant. Judge any Small asked defendant if he had objection to this arrangement, and defendant answered that he had none.

Defendant claims his waiver invalid because Ahrbeck was unable to him neutral give advice. This overlooks the fact Swartz was defendant’s counsel, lead and Swartz’s on in way by advice the waiver was no affected 9 issue, following this “shackling” granted On and the application we defendant’s to settle record, incorporated (See and we appeal. have that settled into the on statement record 580, 584-585, 339, v. People (1982) Cal.Rptr. 1145]; Gzikowski 32 651 Cal.3d fn. 2 P.2d [186 Court, 7(d), 36(a).) Cal. Rules of 12 rules &

1083 no We see Ahrbeck and Baker. between conflict of interest purported was invalid. waiver basis which to conclude defendant’s on found addition, office arrangement In was well Swartz aware defendant’s of his files on to it. Ahrbeck none objecting kept no basis for he shared Indeed, space the record shows the case in the “shared” office. Further, office, he little time. spent where with branch simply Baker County, provided prosecutors in Yolo which trial took place see how We fail to therefore offices in Woodland. separate defense counsel Baker that Ahrbeck and have been the fact could prejudiced on these not to be encouraged, this is space. Although practice shared office v. (1987) for Marshall (See People facts no basis reversal. perceive we 1253, 319].) 1256-1259 Cal.Rptr. Cal.App.3d [242 Shackling10

C.

Defendant and shackled complains that he was handcuffed trial, v. Duran and that reversal is under throughout required People In (1976) 16 Cal.3d 282 545 P.2d A.L.R.3d Cal.Rptr. [127 1]. Duran, subjected we that a defendant cannot be rule “reaffirmed] any kind physical jury’s presence, restraints in the courtroom while in the at (Id. unless there is a for showing a manifest need such restraints.” 290-291, fn. and citations pp. omitted.) of his

Before selection K. began, Taylor inquired Warren Judge whether, bailiff light defendant’s size and seriousness offenses, charged during should be special security employed measures Thereafter, trial. the court its plan counsel and announced summoned seat defendant between his at table and attorneys two defense the counsel “belly shackle defendant in ankle to a chains and with handcuffs attached chain.” counsel to and objected arrangement

Defense both the described seating the in shackling of defendant: to sit next each other order counsel wanted to trial, in to confer that during objected appearance counsel defendant’s court, shackles would the counsel to the prejudice jury. represented Defense misbehaved, he nor had the that defendant had not prosecution agreed, risk, or his security a incarceration posed during pretrial otherwise to many in of the matter County court Shasta before transfer appearances Yolo County. 9, See ante. footnote below, was hand explained support As the record defendant’s claim that he does not

cuffed while in the courtroom. discussion, additional the

Following procedure court approved permit- table, to to ting defendant be seated at the end of the defense counsel next clerk, Mr. Swartz. For the court a lectern was to be safety placed between the counsel table and the court clerk’s desk. court also ordered handcuffed, that with defendant would not be but that he would be shackled chains, ankle and that to the counsel table would be with “skirt” equipped Furthermore, prevent the from the jurors observing pursuant shackles. counsel, an agreement among transport all the bailiffs were directed to defendant court arrival in sufficiently in advance of the order jury’s prevent jurors from handcuffed and that defendant was shackled. observing The agreed-on for to remain in the court- procedures also called room the the jurors until after the Pursuant to departed courthouse. instructions, court’s jurors normally during remained in room court breaks.

The holding cell rest- adjacent to the courtroom not with equipped facilities, room facilities. In nearby order to use defendant was escorted leg hallway within or jurors restraints view of who to be happened using the men’s room. On at least one a male juror occasion observed defendant in the men’s Occasionally room shackles. some of wearing jurors had the opportunity to from the court- observe defendant escorted room jail and the wearing leg restraints and handcuffs. building objection

No was made to these nor was there transportation procedures, any objection during trial that table protective skirt around counsel or that inadequate jurors could observe defendant was seated in the courtroom in restraints. leg that,

It may argued be at least as of the time court’s ruling, Duran, record does not establish a “manifest need” restraints. (See for supra, 290-291; 16 Cal.3d at (1986) v. Allen 42 Cal.3d pp. People 1261-1264 Cal.Rptr. 115], cited.) 729 P.2d and cases Even assum- [232 shown, ing however, an abuse discretion is assuming is the issue further, preserved in light defense counsel’s failure at most the object Duran, record establishes what we characterized in as minor and nonpreju- Duran, dicial error. In we found because the defendant’s credibili- prejudice noted, ty however, as a had been witness We damaged shackles. “the . case . . does not involve a situation the defendant was seen wherein only shackles for by brief either inside or the courtroom period outside one or more or jurors veniremen. Such brief observations have [Citation.] (Id., generally been at recognized as not error.” constituting prejudicial 287, p. 2; fn. see also v. Cecil 777-779 People (1982) Cal.App.3d 736].) Cal.Rptr. [179 briefly at times saw jurors

We that even the assuming conclude restroom, or the to the courtroom in shackles handcuffs being escorted jury the thereby. The record does not indicate not prejudiced defendant was facts of this On the proceedings. the trial during saw defendant’s shackles case, must be harmless. any such error deemed Psychiatric

D. Disclosure Information of Defense the released to the prosecution In mid-October the defense Axelrad, one narcoanalysis sessions. Dr. defendant’s hypnotic of videotapes relied these and had the defense had interviews psychiatrists, performed formulating opinion on the hours his length—in expert videotapes—17 the and returned mental state. The viewed tapes defendant’s prosecution later, that them. Dr. testified for the defense. He stated days A few Axelrad view; the he for the to videotapes jury had selected from the excerpts court nine hours. counsel informed the excerpts totaled One of defendant’s noted, “I that to the that afternoon and begin tapes he wished showing indicate, course, would that Mr. Baker has had the opportunity further left the if he feels was tapes anything observe total and that that in, out that be he can A recess was and the matter put should in.” taken [it] jury. was discussed outside the the presence of given

Defense counsel informed that Dr. had been the court Axelrad viewed, he to about tapes that the and that edited them prosecution nine originals original hours from the so that copying excerpts remained intact. he had not complained The videotapes prosecutor seen in their the edited version that the be shown argued tapes should counsel entirety. Defense that he had seen the edited responded tape that in the edited “balanced.” also Defense counsel opinion, tape to the for pointed originals out court were “still available [the any use in dismissed the prosecution’s] they manner choose.” court jury day give for the time to review version prosecution the edited the tapes. time, At jury.

The edited version was then to the shown same they prosecution so that could be shown requested originals for He ac- objected. rebuttal Defense counsel prosecution expert purposes. hours of that the had a to show the entire 17 knowledged prosecution right stated, but is not feel that objection to the “Our that we do videotape or them with begin tapes we are now to over obligated turning provide rest of them copies not for of cross-examination or submit the purposes to the but to to the defend- jury, prepare contrary their own witness expert ant’s The matter taken under submission. position.”

1086

At a the over subsequent hearing, turning tapes defense asserted that the The court re- implicated rights. defendant’s and self-incrimination privacy claim, jected noting prosecution’s defendant’s that the demand was “reason- is, defendant, able by to a defense offered the pertains particular state,” developed mental and that it related to “information that has been at by and offered the trial the which an essential provide does not case, link” the prosecution’s to a merely but was “a reaction defense offered the defendant.”

We reject defendant’s claim that the court’s order violated his privilege against the previously self-incrimination. Defendant had allowed prosecutor original entirety view the their could tapes expert the prosecution have or any also viewed them at this time. Defendant thus privacy waived be self-incrimination he had in the To would rights tapes. hold otherwise elevate form over substance the require prosecution duplicate and would every evidentiary item turned over for inspection. addition,

In we believe the would have been entitled to the prosecutor if even tapes defense counsel had not him to view them. allowed previously By into placing narcoanalysis evidence an edited version of the hypnotic sessions, the defense the set gave prosecutor the right complete play Code, A (See 356.)12 Evid. for the tapes jury. § prosecution expert could have from the audience. It simply viewed tapes is also clear that the Dr. Axelrad prosecution right had the to cross-examine id., 721, id., Moreover, about the tapes. (See (a); 771.) subd. see also § § matter, because of the subject technical nature of prosecutor entitled to have expert his own him so that he could explain tapes to effectively Dr. cross-examine Axelrad.

We have element in recognized principal determining “the whether particular discovery demand for allowed is simply should be not defense,’ whether the ‘affirmative information to an or sought pertains trial, whether defendant intends to or rely introduce the evidence at upon but whether conceivably disclosure thereof might lighten prosecution’s burden proving its in chief. be Although case should not prosecution completely barred from pretrial discovery, given defendant must be same as an right ordinary witness to show that disclosure of particular incriminate him.” information could (Prudhomme Superior (1970) v. Court 320, 129, 2 Cal.3d 326 re omitted; 466 P.2d fn. see In Cal.Rptr. 673], [85 569, Misener (1985) 38 Cal.3d P.2d Cal.Rptr. [213 here, however, 637].) in no tapes way lightened prosecu- 12 videotape A “writing” meaning is a within v. (People of Evidence section 250. Code (1974) Cal.App.3d Moran Cal.Rptr. 413].) 406-411 [114 case-in-chief, rely- his already burden; completed prosecutor tion’s the friends, and on the the and to police confessions to on defendant’s ing victims, was respon- to that defendant surviving of testimony rape prove the that defendant had The defense conceded charged. for the crimes sible time. The insane at the argued he was committed the crimes but indeed Such the could tapes to this claim. use of to sought respond then prosecutor its case-in-chief. to prosecution prove not have made it easier for the Alleged E. Prosecutorial Misconduct misconduct instances of prosecutorial

Defendant claims numerous claims, subject four the of only Of the were the trial. numerous throughout 27 Cal.3d (People (1980) in the v. Green timely objection trial court. 468].) 609 P.2d Cal.Rptr. [164 at trial objected

1. to which Assertions misconduct of objected We turn in which trial counsel first to those four situations Our of the there was no misconduct. below. review record reveals day first of Talking hallway.

a. with witnesses in After the trial, defense counsel to the court that prosecutor complained in because the meeting hallway by jurors with witnesses frequented jury could jury being jury. room was used a different It that appears and but could not prosecutor talking, specifically hear the witnesses be “cautious hear what was said. court advised the to being prosecutor The try later interviewing about witnesses in the corridor” and asked of saw stay hallway. bring out Trial counsel no need apparently We misconduct matter to the court’s cannot conclude that again. attention occurred. b. to the testi Qualifications objected a witness. Trial counsel that

mony unqualified of witness on the he was Adolph Goehring ground testify testing. about counts medi phosphatase Goehring, and acid sperm was the of Northern technologist cal clinical administrator toxicologist, Laboratories; testing, in phosphatase he had been trained both acid The ruled defendant’s com analysis. identification court sperm admissibili weight to the rather than to its plaints testimony “[went] Defendant re ty” testimony. and denied the motion to strike Goehring’s that, claim this he agree light Goehring’s training, news on We appeal. Goehring qualified was a witness. The fact that said he was not competent as life cells expectancy sperm to answer certain such questions, victim, ability way of a reflects on his to test following rape the death no correctly ruled for the and acid court presence sperm phosphatase. any such deficiencies went to the weight of Goehring’s testimony and not its admissibility. c. Questioning Dr. French. After Dr. Axelrad testified for the

defense, Dr. French was recalled as a prosecution rebuttal witness. He was asked to comment on Dr. Axelrad’s Trial report. objected counsel on the ground that was in report not evidence. The prosecutor responded Dr. Axelrad already had testified and that he Dr. wanted French to com ment on what Dr. Axelrad said in his Trial report. counsel conceded that comment on Axelrad’s testimony was but appropriate, questioned whether comment on the report was equally appropriate. court noted that there had been “many references to the report during course of the trial” and overruled the objection. A prosecutor is not guilty of misconduct when he questions a in witness accordance with the court’s ruling. d. Questioning cross-examination, Dr. Axelrad. During

prosecutor questioned Dr. Axelrad about the number in large of cases which he had testified for the defense that various defendants were insane or suffered from diminished capacity. We reject defendant’s claim that this misconduct, constituted prosecutorial because it is to elicit testimo proper ny tending Code, to show bias. (Evid. (f).) subd. Defendant also § claims that “Dr. Axelrad was improperly over questioned [defendant’s] objection concerning brief by submitted the American Psychiatric Associ ation in case.” Dr. After Axelrad [an admitted he was aware of unrelated] the brief in question, the prosecutor him asked about the contents of the brief. Defense objected counsel on the that Dr. grounds Axelrad had not said he was familiar with the contents of the brief. Because further question ing disclosed that Dr. contents, Axelrad was not familiar with briefs court refused to allow the prosecutor Thus, him question about it. Dr. Axelrad was not sustained, questioned objection; over objection no misconduct occurred.

2. Assertions misconduct to which did not below object Defendant asserts his failure to object to various other instances of assert- ed misconduct because, does not bar claims, review on he appeal each instance a timely objection and admonition would not have cured the as- Green, serted “harm.” (See v. People 27 Cal.3d supra, 28.) at As to each p. Moreover, we point, disagree. we find no misconduct in any event. a. Remark about hospital interview with psy defendant’s defense chiatrists. During guilt phase closing argument, the recounted prosecutor the defense experts’ testimony. At one point, while discussing questions defendant, said, thinking “I asked prosecutor psychiatrists defense I ‘Boy, wish days], we watched for watching videotapes those [three questions him a few and asked I been in that with hospital [defendant] to his him respect to ask with questions there were some myself because later, but you more specifically I into that little get conduct.’ am going attitude, to- patronizing this this psychiatrists], have attitude [defense he say anything absolutely wrong he no where can do ward [defendant] blanche.” wants to and is believed carte later, for evening. presence

A court recessed Out short while stated, you made to on a remark the court “I want comment jury, Baker, said, I could have you ‘Boy, Mr. when I wish your during argument, major him I think the questions.’ purpose in that room asking been hospital your and but I invite atten- of that is understandable argument acceptable, on the it be as a comment interpreted tion to the fact that also might into you you go indicated were testify going defendant’s failure and I in mind you in more in the to bear this detail future want if intended to you into that.” The that he problem go prosecutor responded “Why ask didn’t he Why didn’t this? argue, psychiatrist] [the [defendant] ask him that?” only quoted

In the context of the is argument, portion entire of which above, is defendant’s it clear that was not on prosecutor commenting ask certain testify, refusal to but on the defense failure to psychiatrists’ The was that the questions. argument thrust of the probing prosecutor’s untrustworthy. defense were or We therefore psychiatrists biased otherwise defendant’s claim commented on reject that the prosecutor impermissibly event, would any any In prejudice to testify. his refusal been a timely objection have cured and admonition.13 b. Remark about prosecutor during victims’ The stated families. closing you both think guilt penalty phase arguments, “[w]hen now, are Christmas time think of families. coming people gone these These (1987) We this to error Booth Maryland forever.” doubt amounts under v. 440, 496 L.Ed.2d v. People 482 U.S. 107 S.Ct. As we noted in [96 43 Cal.3d 2529]. 739, 82, 1250], 771-772 P.2d (1987) Cal.Rptr. Ghent 739 [239 evidence,” is Booth involved formal “victim presentation impact this, from such involving argument. hence a case as mere distinguishable 57, also v. Miranda 44 112-113 (See Cal.Rptr. Cal.3d People (1987) [241 594, In any ... is patently distinguishable”].) 744 P.2d 1127] [“Booth event, any jury “error” at the be harmless because guilt phase would 13 reject incompetent failing object for We also defendant’s claim that trial counsel were prosecutor comment prosecutor’s We counsel that the to the statement. believe realized psychiatrists’ shortcomings, testify. ing not defendant’s failure on

1090 be swayed by instructed not to or defend- passion sympathy deciding No. guilt (CALJIC 1.00), ant’s and the is to have presumed followed 778, that instruction v. Chavez 50 Cal.2d P.2d (see People (1958) 790 [329 that, case, 907]). Nor can on of this we conclude the facts prosecutor’s (Ghent, argument at the reversible error. penalty phase supra, amounted to Miranda, 739; 43 Cal.3d 57.) Cal.3d supra, c. on recovery. Comment victim’s stated rape prosecutor during Kelly “And I was when closing argument, very touched victim [rape ” said, T am very think I doing forgetting.’ nothing well We find M.] objectionable in the statement. It more than nothing constituted “vigorous argument” v. People (1983) under Fosselman Cal.3d 580 [189 P.2d Cal.Rptr. 1144]. Reading

d. not report in evidence. The read prosecutor from from a not psychiatrist’s report admitted into evidence. The statement read however, from the report, already brought During been out at trial. Axelrad, that, Dr. cross-examination of pointed out with prosecution offenses, to the respect nonmurder Dr. Axelrad’s report concluded “defendant did not lack substantial criminality to the of capacity appreciate his conduct or to conform his The requirements conduct to the of the law.” prosecution then Dr. had Axelrad material read the sentence from his into the In report record. the closing argument, prosecutor read same the sentence from the The in report. relevant was therefore portion report evidence and thus the properly jury. reread to

e. Comment about psychiatry. guilt Defendant notes that during stated, phase closing the “If argument, prosecutor you need a psychiatrist to say crazy, the person is he ain’t The statement in the crazy.” arose following prosecutor context: The the jury to that defendant’s argued psy chiatrists were Specifically, biased. he that Dr. to ask claimed Axelrad failed a number of that would questions ability have determine helped defendant’s to appreciate criminality the Dr. prosecutor conduct. asserted i.e., Axelrad failed these questions to ask he was for a “going goal,” because he was seeking only information which establish did would that defendant not appreciate criminality the of his conduct.

The prosecutor story: meeting then told the “I went to a one following time, seminar, a in murder Los there was a the Angeles debate over courtroom, validity of psychiatry forensic in the first psychiatry place. There was an argument between a who is a forensic psychiatrist, psychiatrist, a lawyer. taking and a who is He was psychologist, also anti-role, con-role, courtroom, it a shouldn’t be and made allowed statement, ‘If ain’t you psychiatrist crazy, need to is he say person at all times exhibited crazy.’ objective signs Look at the [defendant] [fl] examina- prior psychiatric detailed this case.” The then prosecutor during tions of defendant. behind and the purpose argument,

The thrust the prosecutor’s sense.” He pointed own common story, was that the should “use [its] alternative logical that “Dr. on cross-examination out Axelrad ha[d] him, reason logical the most for I asked explanation everything. ‘[w]asn’t know where she was she wouldn’t [Kelly for head down so pulling M.’s] said, it be an exhibition ‘[w]ell, been?’ He could or where she had going ” attempting simply or to We prosecutor control.’ conclude power Dr. on minimize reliance argument, jury’s to through proper, vigorous testimony opinion. Axelrad’s guilt III. reading During phase f. DSM Reference defendant’s stated, you your “I take observa think can

closing argument the prosecutor mean, I has he tions of this trial too into consideration. during [defendant] He III over here. reading been DSM and Statistical [Diagnostic Manual] lacks mental writing capaci has been down. This is not a things person Defendant DSM III “was ty.” reading reference complains unfounded, of his trial objections ques because twice were sustained to two reading tions to Dr. regarding doing Satten considerable [defendant] III.” DSM Satten,

Defendant of Dr. misreads the record. cross-examination During Okay. I indicated following place: “Q. took believe colloquy [defendant] your you that he read Dr. at least second report prior Axelrad’s A. . he’d either interview? Yes. And he had indicated . . that read Q. also Kaldor’s, French’s or also that Q. you or both? A. I believe so. Were aware III? had amount of of the DSM reading done considerable [defendant] [a] Honor, your no that conten- object, support I’d evidence Mr. Swartz: testimony I’ll sustain any tion. I don’t recall in that respect. The Court: By Well, Doctor, . if objection. Q. . . hypothetically, Mr. O’Connor: there was evidence that had read the DSM III—Mr. Swartz: [defendant] material, Honor, not object, your I of that. It’s again. There’s no evidence an I’ll sustain it’s not hypothetical question. appropriate The Court: objection.” III reading defendant’s DSM

We believe these referred to questions their forming the time and were during being he was interviewed experts no sustained in objections as to that the were opinions capacity. fact reading defendant was way validity affects the of the claim that prosecutor’s “your III to consider jury DSM trial. The asked the during prosecutor not to reading, jury observations” defendant and told that did such addition, “take In my object, word for it.” trial counsel not although did counsel did jury tell the “I have sat close to during closing argument, fairly many the course of while he during this trial and has read [defendant] different III DSM did not be one of them.” things, Because happen observations, jury rely was directed to on its own and because defense III, counsel argued that defendant had not been DSM reading we conclude that, error, even defendant was assuming not prejudiced prosecutor’s comment.

In a similar argument, defendant asserts the must prosecutor’s comment have led jury to believe that the had prosecutor learned that defendant record, was reading DSM III while the not in court was session. The however, support does not defendant’s The prosecutor claim. specifically asked rely on its own observations. on g. Comment evidence and deliberation. premeditation

During guilt phase closing argument, the evi prosecutor argued dence supported findings deliberate and murder. premeditated He point ed out that took Slavik to the “to he dump, the scene where Igo had left another He body.” previously argued Slavik had to have seen Moore’s body at dump only because she was feet from it. The stated, prosecutor then obviously, gun, he takes he takes ammuni “[a]nd tion. I have never seen deliberation our like that.” In premeditation view, this is nothing more than a fair on the v. comment evidence (People Beivelman (1968) 70 Cal.2d 76-77 Cal.Rptr. 447 P.2d 913]) [73 Fosselman, vigorous argument under 33 Cal.3d at 580. supra, page h. Quote regarding felony-murder rule. clos During guilt phase said, ing argument, the prosecutor “Our Court at one time Supreme made statement felony about the I murder rule think is ‘The which appropriate. residents, statute was for the adopted protection community and its lawbreaker, not for the benefit of the court has this viewed it as obviat for, ing the necessity rather than any technical requiring, inquiry concern ing whether there has been a completion, abandonment or desistence of ” felony asserts, before the homicide was Defendant completed.’ without explanation, is that this not an appropriate statement the law. The prose cutor, however, directly from v. quoted People (1951) our Chavez opinion 37 Cal.2d 669-670 P.2d fail 632], and to see how he committed we [234 by misconduct reading this passage. i. to polygraph open results. During examination Reference statement,

ing the informed the that after the first prosecutor jury police him, questioned defendant went to his home and told them had friends’ he record, failed a examination. On fail to this polygraph this we see how the misconduct, referred to Defense counsel also prejudice. to or amounted theory that of their (as proof statement opening test in their polygraph results later that the and it was caught), stipulated defendant wanted to be examinations were admissible.14 of the polygraph ask to prosecutor misconduct for the alleges Defendant also it was examination. anyone failed else the polygraph Detective Brewer whether fail a test. the one to such only The that defendant was witnesses responded event, we any any error. In timely objection perceive A would have cured in no failed the examination anyone polygraph no Whether else prejudice. to turn of whether wished way affected the determination defendant jury’s Thus, was from suffering capacity. himself he whether diminished inadmissible, its admission was harmless. assuming even the evidence was about evidence. Defendant j. Questions complains suppressed to the belonged that the asked officers about a that one of prosecutor purse The murder victims the had been though suppressed. even ordered purse record reveals the court the and that the questions proper, prose that ruled only cutor asked had been certain searches. purse during whether found The answers purse were all and the never learned that negative, found. de been We fail to see how the prosecutor’s questions prejudiced fendant. k. cross- During Redirect examination witness. prosecution Hale,

examination of accused the witness defense counsel prosecution witness to talk to an defender’s refusing investigator public from witness, defendant, long-time charge, office. friend of denied “I him I didn’t like.” On explaining, was to until he said talking something examination, investigator redirect asked the what the prosecutor witness said. The sick and he did witness “He said that responded, [defendant] not mean to do I him.” talking what he did. And that’s when to stopped fails why misconduct; Defendant this constituted explain prosecutor to why him he simply stopped rehabilitated a witness allowing explain Furthermore, with the counsel talking investigator. apparently trial did not state mind object because the evidence was under the admissible hearsay prove to the rule. admitted exception The statement not asserted—i.e., truth of the sick and committed matter defendant was the crimes—but witness’s conduct. explain subsequent claim, any objection” In a related asserts his counsel were “forced to waive defendant however, stipulated to polygraph appears, the introduction of test counsel results. It admissibility take the polygraph results the fact that volunteered to because be theory and the fact test wanted to supported test that he failed the their that defendant caught.

Defendant also asserts the prosecutor elicited from the witness that the said defendant investigator “wasn’t completely right.” Defendant misstates record; it was the witness’s personal that defendant “wasn’t opinion completely right.” /. Lieutenant testimony. Defendant claims misconduct Eoff’s

in testimony from eliciting Lieutenant Eoff defendant’s admis concerning sions and the written list of crimes defendant gave to Eoff. There was no because, above, misconduct as we explained the evidence was admissible. (Ante, 1081.) p.

m. Detective Lambert’s testimony. During direct examination Lambert, of Detective the prosecutor asked the witness to explain sig nificance of the written list defendant had given Lieutenant Eoff. Detec tive Lambert how each explained item on the list referred to the location of crime. particular The list included two crimes with which defendant had not been charged. Detective Lambert said that no one had been charged with those two crimes.

At the court, conclusion of his testimony, one of jurors asked the “We just Now, had list here of apparent admissions. not all of them are lined up with the charges Why involved here. is that? I every would assume that one of them would be brought up.” The court “I replied, think has been explained you by the testimony. IBut will add the further statement that sometimes charges can’t be for proved they various reasons and so are not made. But we are not in involved in this case.” Soon inquiry thereafter, a stipulation was entered between the counsel, and read to the jury: “There are two crimes on and defense prosecutor

the list prepared the defendant that have not been charged. The two crimes did occur and no one other than the defendant has ever claimed for these responsibility jury crimes. The should not concern itself with the reasons these two crimes were not in charged this case.”

If the prosecutor not asked Detective every Lambert to item explain list, on the might have been confused. Defendant’s confession was clearly instructed, admissible and the jury was to a specifically pursuant concurred, stipulation which trial counsel not to concern itself with the reasons why the two crimes were not We fail charged. to see how this constituted misconduct. n. Use suppressed in cross-examination confession of defense

experts. Defendant notes the prosecutor referred to the confes suppressed counsel, sion his examination of the defense Defense psychiatrists. how ever, had earlier introduced the confession into evidence because the de- about defendant. it in their conclusions reaching relied on fense experts was to be that the confession instructed the specifically The court limited information upon of “only showing for the purpose considered Thus, not misconduct based it the medical expert opinion.” which cross-examination during to refer to the confession for the prosecutor defense experts. During witness. rebuttal as Calling court-appointed psychiatrist

o. Kaldor, trial, psy court-appointed Dr. one met with prosecutor Dr. Axelrad’s report, The the doctor with prosecutor provided chiatrists. Dr. and discussed report for Kaldor reviewed the and asked his comments. of questions He then “a number it with the formulated prosecutor. [he] this area hypnotic about thought helpful talking specific would be [of as a rebuttal narcoanalysis] Dr. Kaldor was later recalled jury.” for claims, that this constituted authority, Defendant now case witness. without this authority We have found no support misconduct. prosecutorial claim; (a psychiatrist) either could utilize Dr. Kaldor party court-appointed assist in technical material to the explaining jury. by witnesses names. p. Calling complains Defendant first called witnesses We note that defense prosecutor by some their first names. Indeed, did so

counsel as well. trial to defendant throughout they referred event, as “Darrell” any and to the lead as “Bob.” In prosecutor cites no his first authority from a witness precluding party calling name, or This error results such a suggesting prejudicial practice. from is best court. matter left to sound discretion of the trial q. prosecutor’s Cross-examination Dr. McCann. During McCann, cross-examination Dr. a test describing the witness began tes sensitivity which on wrists. McCann determined one’s pin pressure okay tified that it it on right defendant “did on the but he couldn’t tell hand looking his left side.” The “A. Without following place: then took colloquy now, you at can or left- right right-handed tell me whether he’s [defendant] A. I I handed? have it because one of the things written down here that’s ask, always you ‘What hand do You A. No. I think Q. Q. use?’ don’t recall? left-handed, honestly Q. he’s as a matter of fact. A. I know. He writes don’t fact, that, Doctor, left you assuming with his hand. What do make of right-handed, sorry. he’s left-handed? Are Darrell? you I’m Mr. Swartz: Yes, Q. [By It’s on the I right put prosecu chart. it there. Witness: on ... So make ... fact all you right what do that he scores tor]: the itself, A. In and of right side with his business but not so well the left? pin on . .” nothing. (Italics added.) . his fail-

Defendant claims this constituted an reference to impermissible however, context, testify. question ure to the underscored Considered mistake; prosecu- it seems clear that the an innocent apparently represented determine, basis of on whether Dr. McCann could on the focusing tor was scores, quick- which hand defendant used. Defense counsel the pin-pressure information and the witness to the location of the ly prosecutor directed We the incident they and the resumed. fail to see how sought questioning defendant. could have prejudiced Counsel Alleged

F. Ineffectiveness of assis- Defendant submits a list of claimed instances of ineffective lengthy us tance of counsel. Our examination of the record convinces independent attorneys that both of defendant’s trial were competent. bears the burden of ineffective assistance proving

Defendant 412, 732, 425 590 (1979) counsel. v. 23 Cal.3d (People Pope Cal.Rptr. [152 859, 2 failed to act 1].) P.2d A.L.R.4th He must demonstrate that counsel with reasonable and that this failure defendant competence, deprived When the to meritorious defense. opportunity present potentially (Ibid.) meri failure does not amount to the withdrawal of a purported potentially defense, a to perform torious defendant must establish that counsel “failed reasonably with reasonable and that it is a determina competence probable absence of tion more favorable to the defendant would have resulted in the Fosselman, 572, 584, failings.” citing counsel’s v. 33 Cal.3d (People supra, Watson, 818, v. 46 Cal.2d Cal.3d at and Pope, supra, p. People supra, 836; v. Washington see Strickland 466 U.S. 693-695 L.Ed.2d (1984) [80 674, 697-698, 104 [articulating probability” S.Ct. the “reasonable 2052] grounds We will of counsel” test].) reverse on “ineffective assistance had no “only affirmatively if the record on discloses that counsel appeal (Fosselman, supra, rational tactical for his act or omission.” purpose Cal.3d at We has not met this burden. p. 581.) conclude that defendant testimony

1. to results related Stipulation polygraph to the Defendant claims trial counsel should not have stipulated 23, 1978, admissibility of the results of the examination. August polygraph record, stipulated On this we believe it reasonable to assume that counsel defense admissibility purposes: results for tactical polygraph testified that volunteered to take the examination psychiatrists claim was that caught. because he knew he would fail and wanted to be women, way he only and the stop killing defendant wanted to raping himself, this to “draw attention” “expose” could accomplish himself, voluntarily submit- to “turn himself in.” Evidence that defendant test, examination, sup- fail the he would knowing that ted to a polygraph theory.15 the defense ported result reasonably a more favorable probable

We also note that it is not defendant’s stipulation; in the absence of have been reached would Eoff, defendant’s friends testimony with confession combined arrest, after defendant’s evidence obtained properly with the other admitted the convictions. strongly supported have reasons, the claim that trial counsel should reject

For similar we only testimony per- defendant was the Detective Brewer’s that objected to we conclude And cannot again, son failed the examination. polygraph who the verdict. testimony that this affected closing argument

2. counsel’s Defense confessions, re severely In of trial counsel were light defendant’s in to defendant’s of presenting Contrary reading stricted a defense.

record, however, not in the towel” and “recom trial counsel did “throw degree mend” convictions and verdicts of first charges on all nonhomicide conceded They necessarily murder two or of the homicide offenses. three crimes, they that defendant should intent but guilty be found the general a that with guilty did not concede defendant should be found assault bodily deadly likely injury—a with to weapon produce great specific force intent crime.

Our that to requested jury review of record reveals trial counsel return verdicts of murder—in each of the manslaughter—not degree first counts murder. of the defense was that charging defendant with The thrust murder, degree defendant lacked the intent to first commit requisite One of expert testimony finding. that such a defendant’s supported of first finding counsel conceded expert testimony support that the would homicide, such a murder in the did not “recommend” degree Slavik but he finding. merely credibility

The record shows counsel to maintain with sought trial counsel, might jury If the live. If the jury. jury went “with” defendant 15 jury po example, argument during opening For defense informed the that counsel “[t]he [defendant], police.” to the also “Evidence will lice did not come to came Counsel stated: [he] show that polygraph show that in to take that exam and evidence will went [defendant] exam, high likeli [defendant], polygraph that there when he went to take that knew pass it. show going hood that he was not be able to The evidence will [defendant’s driving admitting to be subconscious was and closer crimes in him closer order] [the argument, observing stopped.” during closing Defense to this theme counsel returned Igo dump polygraph chose “find” to a examina the bodies at and to submit stay tion rather than silent the area. or flee counsel, very

went defendant faced the real of receiv- “against” possibility the death It therefore a tactical ing penalty. prudent, choice to admit candidly to the that it could find defendant of the lesser crimes guilty but argue only that the evidence verdicts of on the supported manslaughter murder charges. We believe the course trial counsel selected de- provided fendant a reasonable chance to avoid the death That the penalty. plan failed (See does not render ineffective. v. Jackson People (1980) counsel Cal.3d 603, 149].) 290-296 P.2d Cal.Rptr. [168 3. Disclosing parts suppressed confession

Defendant maintains trial counsel were ineffective for presenting the jury parts defendant’s confession to Detective Brewer. suppressed Evidently, the been experts defense with or record provided transcripts interview, of that and defense counsel ings made numerous references to the contents of the confession examination of their witnesses. suppressed during Thereafter, the used of the confession in his prosecutor parts cross-examina witnesses, tion of defendant’s and recall suggested defendant’s detailed confession, of the homicides as by demonstrated the and his initial denial of murder, the Selix were inconsistent with his claim of diminished capacity. We are unable to conclude that counsel lacked a tactical reason for allowing jury to hear about certain aspects confession. suppressed Indeed, interview, by various references making may to that counsel have managed to their support theory defense that defendant wished to be and caught, to defendant in a portray favorable light. event, however,

In any we are unable to conclude counsel’s conduct First, defendant, amounted to prejudicial error. we note that neither nor curiae, amicus specifies assertedly thereby what prejudicial information was short, jury; to the in presented they have not the claim of properly presented Second, error to this court. the jury was instructed to consider specifically both defendant’s statements to and his to Detective experts, statements Brewer, for the limited purpose the information which “showing upon the medical based his in expert opinion.” Finally, view of the remaining, admitted properly defendant’s confession to EoiF—we evidence—including by cannot conclude that references counsel to simply the Brewer confession could have jury’s affected the verdict.

.4. Adequacy sanity phase argument

Defendant asserts trial counsel should have at dur argued length sanity ing phase sanity of the trial. The was submitted on the basis phase of the record evidence at the no additional evi- presented guilt phase; during counsel presented evidence that trial introduced. dence was than more covered seven weeks and approximately guilt phase spanned ran Furthermore, closing argument guilt trial counsel’s 3,100 phase pages. in length. hours and one-half seven “Thank follows: to the as argued trial counsel sanity phase,

At the trial of this to Unlike the first things say. phase brief very a few you. Just and each to each fact entirely the People prove upon the burden where trial, doubt, the second phase a reasonable beyond issue [in] insanity [by] preponderance the issue of is on us to prove burden doubt, the burden beyond than a reasonable That is much less evidence. to you the Court will explain in the first phase, had People [the] the first during is. You have heard exactly what it now instructions [If] You have heard all the present. that we had to all of the evidence phase you you to it is our now that request present that we arguments at you you and the presented evidence presented consider issues is going instructions the considering special judge phase the first you.” Thank you insanity. on give record, to reiterate

On this we cannot counsel’s decision not agree arguments extensive constituted ineffective assistance. guilt phase during Shackling 5. interviews psychiatric of defendant dur Defendant was shackled and officer accompanied police French, Dr. of the his examinations with one ing court-appoint psychiatric record discloses Dr. French this expressly requested The psychiatrists. ed informed the court that he not interview defendant and would procedure jury procedure The was informed of the and request granted. unless his was Dr. concern for his learned that the basis for French’s was his request not does safety. object procedure Trial counsel’s decision personal not constitute ineffective assistance of counsel. claims counsel have to exclude the similarly

Defendant should attempted and testimony of Drs. French Robinson because defendant was shackled them and because a during police present interviews with officer was during We weight the interviews. believe defendant’s concerns go We note testimony, admissibility. doctors’ not to to the that defendant shackled emphasized jury that defense counsel was argued it these interviews and that made defendant uncomfortable during the doctors’ evaluations less accurate.16

and 16Finally, reject presence during we claim that the of an officer defendant’s interview right to re Dr. defendant’s counsel. The officer was instructed not to with French violated anything during they peat he heard the interview. Defense counsel informed the court that Drs. Testimony

6. French and Kaldor of were Drs. argues incompetent calling Defendant counsel for Kaldor, French and both their testi because court-appointed psychiatrists, mony theory capacity. inconsistent with the defense diminished Defense counsel called Dr. as their admitted French first witness and he defendant, yet that when he interviewed DSM III had not developed, been admitted, he based his DSM II. Dr. French “the diagnosis on also today data base have is diagnosis insufficient for make a with [I] [me] certainty today.” medical under the standards called applicable defense witness, Dr. Kaldor II as their second and he too admitted that DSM was defendant, still use when he evaluated and that evaluation defend ant Counsel also fact that possibly inappropriate. alerted to the only Dr. French with only two hours defendant and Dr. Kaldor four spent hours, and that the interviews were argued police tainted because were nu present defendant was shackled. Defense counsel then presented lay merous stand. experts witnesses before their own on the putting “I am During guilt sure phase closing argument, argued, prosecutor called French and Dr. just sting to take [defense counsel] [Dr. Kaldor] They of our case. out wanted to take the before out these witnesses sting we them on the witness put “[wje stand.” Defense counsel had responded, grave misgivings they about the standard and the information available to you them and we them on first and then to put to show that fact all of produce the information we have in the produced [subsequently] courtroom which could then be utilized French Kaldor in an Drs. rebuttal, on which opinion we would take place].” [knew view, tactics, our In trial not counsel. challenges competence It might well have worked if its against defense own testified experts defendant was insane whereas the in rebuttal tes- court-appointed experts he was We tified sane. find to call nothing improper with counsel’s decision the court-appointed doctors as defense witnesses.

7. experts’ Defense fees next failing object

Defendant counsel were for to alleges ineffective prosecutor’s inquiry by to the into the fees charged experts. defense by claim is meritless inquiry because such is authorized statute specifically Code, 722, reason, that, (Evid. (b)). subd. also note for this the prose- We § object procedure did to the because officer us that and will not not assures he has not “[t]he facts, anyone.” with of discuss occurrence On these we find no ineffective evidence counsel. inquiry a similar defense counsel made did not when object cutor court-appointed psychiatrists. County Lake

8. to Transfer motions the pretrial to transfer failing counsel for Defendant faults event, trial any In County. has discussed above. Lake This issue been to heard in Shasta it wished the motions they pretrial made clear counsel no performance ineffective County perceive for tactical we purposes, regard. this identity two victims Stipulation

9. to of to stipulated trial should not have Defendant asserts counsel of identity stipulation “deprived of Slavik and Moore because [him] alleged were the decomposed doubt that the two bodies showing reasonable by identified victims.” The shows that both victims were positively evidence testify to an to records; produce expert their dental requiring prosecutor effect confessed to this would have served no useful Defendant purpose. and the he “found” at the murdering Igo dump, to women whose bodies theory that he was defense was that defendant killed these women but insane. We fail he stipulation. to see how was prejudiced they because similarly

Defendant contends counsel were ineffective to body. to the on If did not stipulate bite marks Selix’s counsel stipulated stand, marks, on the experts the bite could have two prosecutor placed who, shows, as the bite marks the record would have identified positively for stipulating those of defendant. We have held counsel never ineffective may presentation facts that be so counsel avoided readily proved. By doing unnecessary details. a matter trial tactics. gory This is 10. Testimony witness Hale prosecution

Defendant failure to to certain testimo challenges object counsel’s discussed, ante, Trial by witness issue at 1093. ny page Hale. This has been it testimony, object counsel were not for to the because failing ineffective mentally theory unstable. support tended their that defendant was 11. Testimony Detective Brewer testimony concerning

Defendant Brewer’s objects Detective sur community circumstances attitude about the Selix murder and the rec examination. rounding defendant’s to take agreement polygraph was it investigation; reveals that traced the testimony ord the simply police event, entirely cannot show and relevant. In defendant proper any case. testimony introduction of the prejudiced 12. Motion to quash to moved belatedly” and

Defendant asserts counsel “improperly record of the one of Our review quash lineup the victims’ identification. move to not reveals that was made. Counsel did the motion properly testified, motion was the but the identification until after the victim suppress Further, con defendant’s not denied on the basis of untimeliness. because assailant, defend we fail see how fession identified him as the to positively ant could have been prejudiced.

13. list crimes Uncharged crimes contained defendant’s in his written assaults contained

Defendant asserts the uncharged both list of crimes it have been Although should have been excised. might so, preju how was possible reasonable to do we fail to see diced; be the trial can’t charges court to that “sometimes explained jury addition, for proved pursuant various reasons and so not made.” In they are to a was not stipulation, that it specifically instructed “concern in this charged itself with were not the reasons two crimes these (Ante, case.” p. 1094.)

Similarly, uncharged defendant challenges regarding the stipulation improper. We offenses. fail way stipulation what perceive instruction, we Absent evidence that the the court’s jury failed to follow cannot conclude defendant was the stipulation. prejudiced

14. reports psychiatrists’ Defense not to right “relinquished

Defendant next asserts trial counsel [his] privi self-incrimination lighten burden of the People [waived] defense lege” by written reports review the allowing prosecutor however, 356, 721, and psychiatrists. Under Evidence Code sections defense prosecutor was entitled to the written reports review psychiatrists Providing prosecutor for purposes cross-examination. wit cross-examination of the with copies simply these reports expedited nesses. We actions. find no in counsel’s impropriety testimony

15. Narcoanalysis competency challenges Defendant Drs. Kaldor’s French’s sug- He testify about with narcoanalysis Dr. Axelrad’s session defendant. testimony. Our to failing prevent for were ineffective trial counsel gests testify to qualified doctors were that both the record discloses review of meri- allegation find the We therefore narcoanalysis. and hypnosis about tless. misconduct and asserted closing arguments to object

16. Failure to and “inflammatory object to failing for Defendant faults counsel penal during guilt by made the prosecutor remarks” highly prejudicial these each of addressed have previously We ty closing arguments. phase (ante, not consti of did 1088-1094). complained The statements pp. claims misconduct, that trial established has not tute defendant prosecutorial his case. counsel’s failure object prejudiced they failed to ineffective because counsel were

Defendant also asserts is the This “the prosecutor’s improprieties.” move for a mistrial based on miscon- rejected prosecutorial identical claim that have under claims we Our review object. counsel for failure to duct and ineffective assistance of alleged grounds mistrial on the any the record reveals that motion for he have has therefore not established would been denied. Defendant for motions failure to make the by suggested was counsel’s prejudiced mistrial.17

G. Asserted “Trial Court Errors” “trial court errors.”

Defendant next of numerous asserted submits list above, under other Many of these assertions resolved repeat claims simply headings. The are discussed below. remaining points

1. Separate juries his motion for should have alleges granted

Defendant the court in claim an identical juries. rejected We separate guilt penalty phase essence, challenge, the entire Finally, failing appears to fault counsel for testimony proper ty testimony. reveals the of Lieutenant Eoff’s Our review of record ly admitted. suppress. The concerning common law motions Defendant also raises an obscure claim and the confession sought pretrial suppression of the Brewer record reveals that trial counsel August and Yolo Counties. 24th statements in both Shasta Yolo Su- suppression of the Brewer confession It also reveals that counsel obtained ineffective constitutes perior explain trial counsel’s conduct Defendant fails to how Court. prejudiced differently, performance, or how defendant what counsel should have done admissible, defendant August 24 statements counsel’s conduct. Because we have found allegedly committed. trial counsel possible prejudice suffered as a result of whatever error no 1, 128,

Hovey v. Superior (1980) Court 28 Cal.3d 616 P.2d Cal.Rptr. [168 Miranda, 57, 1301], 44 Cal.3d 79. supra, 2. Restrictions on voir dire

Defendant jurors asserts his voir dire of prospective improp restricted, erly but he no or evidence in provides explanation support v. allegation. He does cite Williams 29 Cal. 3d 392 People (1981) [174 317, 628 P.2d in Cal.Rptr. 869], may during which we held that counsel ask voir dire that are in the questions “reasonably designed intelligent to assist exercise of are also peremptory challenges whether or not such questions likely (29 to uncover for cause.” grounds challenge sufficient to sustain a Cal. 3d at in v. Edwards p. 407.) Williams overruled our holding People (1912) 163 Cal. 753-756 P. used 58], that voir dire could not be [127 Williams, however, eye with an toward was not filed peremptory challenge. until after the in voir dire defendant’s case was and we completed, spe cifically noted that our Williams was to be holding given prospective only. effect (29 Cal.3d at fn. p. 15.)

Our independent review of the record reveals that the court refused to allow either side to ask any juror that would question require prospective the case. prejudge Nor did the court allow either to discuss the party law—such as the of diminished ask that meaning capacity—or questions required prospective jurors to the facts of the case. The trial court pretry informed juror] counsel that “the most whether important question is [the will follow the law as the court . . . .” reads it court,

Early examination, in the voir “we dire trial counsel informed the are objecting to the on our of this case to limitation use of the facts determine death there are penalty people attitudes. We have observed that that would not automatically a murder with impose the death for penalty circumstances, the special find out that it but then when those same people murder, murders, murders, is not one but four that but only it is not four misuse, that, murders by sexual even a child accompanied only not but involved, that that substantially will increase the number of individuals would vote The court ex- automatically for the death penalty].” [who “what I am plained, concerned about is a battle between defendant seesaw course, and prosecution over what the the case will Of that facts of be. endless provokes controversies and endless confusion and is undesirable I want to avoid that.” read, “If and defense thereafter prosecutor agreed question on a

the facts in this case disclose that is of four guilty separate [defendant] murders and eleven-year-old girl the murder of an multiple rapes, including bridge, high thrown killed off sexually being who abused and was it make would you emotional responses would those facts trigger would or parole, hard life without possibility to consider imprisonment This question penalty?” vote for the death you under those circumstances examination the voir dire fully existing at the time with the law comports was held. to be used may dire not even under Williams voir We also note that

“ case, compel the to ‘to facts of jury particular educate the to the panel [or] the way, the to vote to jurors prejudice to commit themselves a particular case, ” the a the to indoctrinate jury argue for or against particular party, 408, at (29 p. in law.’ Cal.3d jury, or to instruct the matters of v. (1967) Cal.App.2d Rousseau West Coast House Movers quoting nothing we find Accordingly, Cal.Rptr. 655].) [64 voir during questioning record to claim that defense counsel’s support dire was limited. improperly

3. Presence at proceedings informal during right

Defendant claims he was his be present denied The pretrial some of the informal and trial pretrial proceedings. proceedings case necessary concerned various administrative transfer procedures county. to another orally proceed Defendant waived his at those presence Later, ings. to section pursuant a waiver of his signed presence 977, subdivision (b). by

The trial of defend- proceedings alleged concerned violations the press ant’s that defendant privacy. Apparently, reported discovered and press wished to be married. court to discuss sought hearing Defendant a with the “off hearing The court to hold a alleged improper invasion. declined Instead, matter, cuff.” it would it asked and said briefing for informal on after such holding consider with defendant it received hearing present, The record counsel submit- briefing. does not disclose whether defendant’s matter, ted briefs on the was held. apparently hearing no proceedings prop We conclude defendant’s absence from the various “ ‘ to the er. None of the relation “reasonably substantial proceedings ’ ” (Peo fullness against charge.” to defend opportunity [defendant’s] Jackson, v. ple supra, 28 Cal. 3d 309.) 4. Hearsay objection hearsay ob

Defendant claims the court should have sustained Scott, Kelly victim jection certain who testified to testimony Deputy M.’s statement—shortly (in after the assault—that defendant her told graphic terms) he was to force her to in anal inter- going participate course. The court overruled the objection, finding Kelly M.’s statement admissible under the hearsay “fresh to the rule. We complaint” exception admissible, agree that the any statement was and in event we cannot imag- ine that this testimony amounted to prejudicial light error other evidence.

5. Relevance evidence

Defendant challenges court’s that certain evidence was ruling trial, admissible. At a sales clerk testified that he sold Annette Selix two cans of soft drink Squirt she clerk night disappeared. (The sales also testified that Selix had two tubs of purchased margarine; Blue Bonnet two such tubs were in discovered defendant’s A tes refrigerator.) officer police tified that he found six cans of bum barrel and that Squirt defendant’s two of the cans to have appeared they been burned while were full. Trial objected counsel admissibility to the relevancy of this evidence on grounds, arguing that there was no evidence that the Selix had six girl purchased cans of Squirt. The court observed that the sales clerk have been might mistaken (i.e., that Selix did purchase a that defendant six-pack) or threw four more cans of in the Squirt barrel that Selix along with the two purchased. think Accordingly, the court “I objection stating, overruled the they are material and may should be received they for whatever value have and that will enable counsel to argue the inferences be drawn there [to from].”

We with agree conclusion; the trial court’s defendant’s went to objection evidence, weight not to its if we were to admissibility. But even error, assume any error clearly v. 46 (1956) harmless. Watson (People 818, Cal.2d 836 P.2d 243].) Defendant had confessed to picking up [299 Selix, house, driving her to his and later off a The throwing bridge. her medical evidence showed that Selix had been and forced sodomized raped, Further, to perform oral copulation. that he defendant’s claim was Selix, Thus, insane when he killed not that he was innocent. it is not reasonably probable that a more favorable result would have been reached in the absence of the alleged error.

6. Admissibility photographs

Defendant admitted asserts certain erroneously were photographs in evidence objection. over Trial counsel that the effect of argued prejudicial the photographs their outweighed probative value. The court ruled prosecution a right to prove case” and concluded that the photo- “ha[s] [its]

1107 renews Defendant value than prejudice.” more graphs probative “ha[d] admitting claim did not err in here. We the trial court conclude that photos. court found the trial ruled admissible because were photographs that photographs

them malice. We have said probative on the issue of crime was commit in which the the manner “disclosing corroborating 30 ted, (1982) v. Ramos clearly the issue of (People relevant to malice.” [are] 553, 266, not disturb 576 P.2d We will 908].) Cal.3d Cal.Rptr. [180 “unless the admissibility prejudi trial court’s ruling photographs on Defendant clearly (Ibid.) cial effect value.” outweighs photos’ probative no provides does not the relevance of the and therefore dispute photographs evidence that the their “clearly outweighed” probative effect prejudicial value. insists, however, Defendant that the to stipulate precluded offer “ Ramos, ‘if a

introduction of that He relies on photographs. language offense, charged offers to admit the existence of an element of a the prosecutor must evidence introducing that offer and refrain from accept ” 577, ... prove jury.’ (30 quoting element to the Cal.3d at p. v. Hall People 826].) 616 P.2d (1980) Cal.3d Cal.Rptr. [167 counsel, however, Trial Selix only offered to the wounds stipulate sustained did proved that she was alive when thrown off the Counsel bridge. not offer to did stipulate to the issue of malice. the trial court Accordingly, not err in admitting the photographs.

7. Testimony about a victim’s purse

Defendant objection also the court’s on his challenges ruling above, testimony was concerning a As noted Patricia Moore’s purse. purse trial, testimony ordered suppressed At introduced pretrial. prosecutor that Patricia was last seen was not purse with a and that specified purse in found certain that it locations. The to the court prosecutor explained jury wished the purse know that Patricia Moore last seen with was that He it was not found in her motel room her following disappearance. felony-mur argued although support this was insufficient evidence to der-robbery it of her murder explain why investigation instruction did The never learned hampered. testimony, jury court allowed but the that the had purse been found. event, we do

Arguably, any the evidence was relevant In and admissible. not see how defendant the fact by testimony concerning was prejudiced Patricia Moore in room. owned a that was not found her motel purse

8. to rebuttal witness Objection prosecutor’s questions testimo objection

Defendant the court’s on his challenges ruling ny by Dr. on Kaldor. The to ask Dr. Kaldor prosecutor sought questions deliberation, rebuttal pertaining aforethought, premeditation, to “malice acts, ob unconscious lewd and lascivious conduct.” Defense counsel rape, jected on the Dr. Kaldor ground (i.e., that the “ultimate whether question” believed defendant at the time insanity suffered from or diminished capacity he committed the been crimes) already prose asked answered. cutor out that the he to ask had not pointed “underlying questions” sought been Our review of the previously objection. The court overruled the posed. record an reveals that the had not been asked and questions previously swered; accordingly ruling we believe was correct.

9. Testimony about an witness’s expert report

Defendant to testify claims the court erred Dr. French allowing Dr. regarding Axelrad’s this issue has been in the context report; discussed ante, aof prosecutorial only misconduct claim We add here (see 1088). p. that the evidence clearly section 356 admissible under Evidence Code and that we do not believe the court’s was incorrect. ruling

10. Jury admonishments

Defendant insists its occa the court committed reversible error sional failure to admonish jury in accordance with section which case, etc., directs the to refrain final submis from before discussing sion. The record reveals that the dozens of times jury was admonished trial, throughout and that defendant failed to call the court’s attention Moreover, to its occasional omission at the time of adjournment. absence of of proof we will not the court’s omis prejudice, that speculate sions in this warrant 237 regard (1965) reversal. v. Gastelum (People 205, 207 Cal.App.2d Cal.Rptr. 743].) [46

H. Guilt Phase Issues by Raised Amicus Curiae curiae,

The California number of Appellate Project, as amicus raises a issues the relating jury to instructions.

1. Instructions on malice course,

Of a of malice a murder finding necessary is to support conviction v. recently Croy to section 187. We in pursuant observed People

1109 Conley v. 592, People “In 710 P.2d Cal.Rptr. (1985) 41 Cal.3d 392]: [221 592, we sur 392], 710 P.2d Cal.Rptr. 316-322 (1966) 64 Cal.2d [221 pronouncement of our in support several decades veyed precedent spanning and Croy time of it at the Code existed that under our Penal [as of that state from aforethought distinguished is to ‘be malice present trial] ’ (Id., . .” at “wilful, deliberate, . . and premeditated mind described as of Malice, stated, the exhibition by 321; we is characterized p. [citations].) v. (People . . . .’ motivation for human life or antisocial disregard ‘wanton act intentional at Conley, 322.) 64 Cal.2d More supra, p. precisely, ‘[a]n aware life, of the actor’s disregard human highly dangerous is to done law, is done the him his conduct to society requires to conform ness then, Malice, of mind from the ‘state . . different quite with malice.’. is [1f] “wilful, deliberate, . latter phrase . . The and premeditated.” described as of the course carefully weighs mental state of one who the encompasses considering victim after to and kill his action he is about take chooses to at Conley, Cal.2d supra, it. v. against (People reasons for and [Citation.]’ circumstances While we have that most 321-322.) recognized pp. ‘[a] also of normally is capable such a mental state person capable achieving law’ to act within the duty society the on all comprehending places persons ‘If,’ are so. for (id., 322), example, at there situations this is not p. where disease, defect, is . . the defendant of mental . ‘because or intoxication in accord with his actions comprehend duty govern unable to law, cannot and duty aforethought he does not act with malice imposed ” 18- first Cal.3d at pp. be of murder in the guilty degree.’ (Croy, supra, 19, fn. omitted.)18 on malice were curiae maintains that instructions jury

Amicus find jury first-degree “confusing incomplete” and “permitted mental state deciding murder without whether evidence of [defendant’s] notes, these instruc malice.” As curiae negated finding express amicus (II special III), tions related two of murder counts on findings circumstance counts III and IV. may either on “Malice be was instructed malice follows: as an intent or Malice is manifested is when there

express implied. express []f] killing a human is when unlawfully being, implied kill Malice [fl] that it will result involving from an high degree probability results act read, Croy Legislature 188 to delete from “In amended section 18The footnote in body general obligation awareness of to act within definition of malice ‘[a]n more, 1982, acting society.’ the once state that regulating provision laws In was amended amendments despite is also not definition malice. These such awareness included in the of offenses, judgment pass no alleged and we appellant were after committed enacted his (41 light Cal.3d aforethought in these revisions.” regarding the malice denotes of what term 18, to sec Croy, the the amendments p. 12.) As in case occurred before at fn. in offenses this tion 188. death, in which is a act done for a base antisocial and with wanton purpose life, disregard for by duty human which is imposed meant an awareness of by law not to commit such acts by followed the commission of the forbid- 8.11, den act .” despite that . . (CALJIC by awareness. No. as modified court.) the

The jury was also by instructed: “All murder which is any perpetrated willful, kind of deliberate and killing malice premeditated with express is aforethought murder of the first The ‘willful’ as degree, word used in [][] intentional, these instructions means The word ‘deliberate’ means [fl] formed or arrived at or determined as of upon a result careful and1 thought of weighing considerations for and course of action. against proposed The word ‘premeditated’ means If []|] you considered beforehand. find that clear, the killing was preceded by and a accompanied deliberate intent on kill, of part the defendant to which was the result of deliberation and premeditation, so that it must have been formed upon preexisting reflection and not a under sudden of heat or other passion condition precluding deliberation, idea of it is murder of the first degree, law does not []J] undertake to measure in units of time the length which period during the thought must be pondered before it can an into intent to kill which ripen is truly deliberate and premeditated. vary The time will with different indi circumstances, viduals and under varying The true test is not the dura [fí] time, tion of but cold, rather the extent the reflection. A calculated judgment and may time, decision be arrived in period at a short but a more unconsidered and rash it impulse, though even includes an intent to kill, is not such deliberation and as will fix an premeditation unlawful as killing murder of the first degree, To constitute deliberate and []f] premeditated killing, slayer must weigh question consider killing choice, and the reasons for and against having such a in mind the consequences, 8.20, he decides to and (CALJIC does kill.” No. as modified the court.) that,

Amicus curiae suggests based on 8.11 CALJIC No. instruc- whole, tions as a jury might not have that to find realized either express or implied malice it was required to find that able defendant was “to com- prehend duty govern duty his actions accord with the imposed by (Croy, law.” supra, 41 Cal.3d at 18-19.) Additionally, amicus curiae pp. asserts, CALJIC No. 8.20 conveyed the inadequately requirement of a malice finding support murder conviction.

Considering Burgener instructions as a v. (People (1986) whole Cal.3d 538-539 Cal.Rptr. 1251]), 714 P.2d we find they [224 adequately informed the We jury. note that to the above addition instruc- tions, “Also, was further you instructed: if find the defendant’s reasonable have a you extent that diminished to the capacity mental was constituting either states he to form the mental doubt whether was able of mur- guilty find him you cannot aforethought, or malice express implied doubt, a If have reasonable you or degree. der of either the first second [H] a one, to kill human unlawfully an intention whether he was able to form to two, on him not duty imposed he was aware of the being, or whether three, death, or or injury risk grave commit acts which involve the of awareness, that he harbored you cannot find whether he did act that despite malice, one, doubt, his Further, whether you if a reasonable have express [fi] two, was aware whether he for base or purpose, acts were done a antisocial of the risk involve duty on him to acts which not commit imposed awareness, death, three, that despite he act or or whether did grave injury No, 8.77, . .” (CALJIC he malice. . you cannot find that harbored implied modified.) as

Thus, if it jury the that entertained reasonable expressly was instructed law, or his act the duty doubt whether defendant to within appreciated law, it the whether defendant was of in accordance with capable acting convicting convict In degree could not defendant of first or second murder. therefore, III, of and II and defendant second first murder on counts degree necessarily unlawful the were jury killings found defendant knew the kill, of injure and knew his societal not or killed duty spite to but obligations. awareness of these the We conclude that instructions, whole, informed jury considered as of properly finding of requisite malice.19

2. Instructions on Provocation

Amicus curiae next failed to instruct on contends court “effect of and provocation and heat of passion negate premeditation deliberation.” It points to of opinion experts defense that, in this suffered from an claims “explosive” personality light evidence, duty the trial court was under a sua instruct sponte of CALJIC 8.42 find insufficient language Nos. and 8.73. We the evidence to warrant these giving instructions. misreading of We not do share the concern of amicus curiae over the court’s inadvertent beyond jury. you a rea provides, “If

CAUIC No. 8.72 No. 8.72 are satisfied CALJIC unlawful, killing you sonable that the have a doubt whether doubt but reasonable manslaughter, you give doubt crime is murder or must the defendant the benefit such manslaughter inadvertently not read “are find it be than murder.” The trial court rather delivery the instructions (Apparently, satisfied” instead of “are the verbal satisfied.” deliberations.) given jury during transcribed and to the for use read, instruction, reasonably conveyed interpreted, adequately Even as we believe the whole, 8.72, that, it did as a meaning CALJIC No. in the context of the instructions necessity of malice and prejudice not misinform the to defendant’s on the definition finding aof of malice.

CALJIC 8.42 provides, No. “To reduce an intentional felonious homicide from the offense of murder to manslaughter upon ground of sudden or quarrel heat of be passion, must of such provocation character and degree naturally as would excite such and arouse and the passion, assailant ,”20 must act under the of smart that sudden or heat of . . passion. quarrel

Amicus curiae being raped asserts victims’ resistance to could have provoked defendant explode. recognized to We have long “the funda- mental of the inquiry has negated whether provocation is [into malice] was, whether or act, not the defendant’s reason time at the of his so dis- never, turbed or by necessarily obscured some fear and passion—not of course, the for as passion revenge—to such an extent would render ordinary men average to disposition rashly liable act or without due deliberation of reflection, and and from this than from passion judgment.” rather v. (People Logan Thus, (1917) 175 Cal. 1121], added.) P. italics under [164 8.42, CALJIC No. determination of the of sufficiency provocation is made by standard; an objective subjective defendant’s is response immaterial. Jackson, 264, 306,

In v. People 28 Cal. 3d supra, we concluded evidence “that may have become and enraged brutally attacked and killed one of his elderly victims because she was awakened during the burglary and began to scream” was insufficient to show that he killed his observed, victims in a heat passion on We sufficient provocation. “[n]o case has ever . . . suggested that such conduct a predictable resisting victim would constitute the kind of provocation sufficient to reduce mur der charge voluntary to analysis The is manslaughter.” (Ibid.) the same for a reduction degree murder; to second is whether the inquiry ordinary Therefore, person would “explode” because the victim resisted. defendant’s subjective to response relevant rape only victims’ resistance is as it tends to establish he diminished acted under We hold that the capacity. victims’ resistance to the criminal act rape is conduct” “predictable and is insufficient provocation to negate malice. continues, 20The instruction passion “The heat which will reduce to homicide man slaughter naturally passion must be such a as be in the mind ordinarily would aroused of an person

reasonable in the permitted same circumstances. A to up defendant is not set his own justify standard of conduct and to or passions excuse himself because his were aroused unless placed circumstances in which he was and the him facts that confronted were such as also passion would have ordinarily aroused with the reasonable man faced same situa not, question tion. killing, be answered is whether or at the time of the the reason of by passion accused was obscured or disturbed such an extent as would cause the ordi narily person average disposition rashly reasonable and act without deliberation reflection, passion such judgment. provocation, from rather than from If there was [][] normally but of a nature not passion, elapsed sufficient to arouse or if sufficient time between return, provocation and the passion fatal blow for if subside and reason to an un killing lawful being provocation of a human such followed and had all the elements of mur der, it, as I have slight defined the mere will provocation fact of or remote not reduce the manslaughter.” offense to No. deliver CALJIC failing to erred in do believe the court Nor we evidence shows “When the provides: That instruction 8.73 sua sponte. killing the unlawful inducing that a played part existence of provocation as to not such was such provocation but also shows that being, of a human was killing the find that you and manslaughter, the homicide reduce murder, as it bearing for such provocation the evidence of you may consider first second of the or murder was of whether the have on the may question degree.” record assertion, in the evidence there was no

Contrary to amicus curiae’s Ami- victims. the murder by the tending provocation to show existence of examining psychiatrists, made cus curiae relies on statements defendant above, for the only admitted hearsay were but as these statements noted experts the medical the information on which purpose showing limited the truth of prove be based The statements could not used opinions. their the asserted. matter

Furthermore, suffering from theory was that defendant was defense murders, he was at not that capacity diminished the time he committed theory but No the latter by argument sane the victims. provoked supporting that would any evidence presented, jury provided nor was the with We such no error. support finding. perceive Special

IV. Circumstance Issues 190.2, “multi- subd. (c)), Under 1977 death law penalty (former § ple-murder circumstance” defendant special finding required “[t]he causing acts of the act or personally present during commission death, committed act with such and intent to cause death aided or physically circumstances causing or acts death and additional any following of more (5) exists:... The been convicted proceeding defendant has this . . .” (Italics . degree than one offense of murder the first or second because jury added.) Defendant asserts the court instructed improperly ” to the respect kill’ with give “it failed to an instruction on ‘intent to multiple-murder special circumstance. circumstance special

Defendant’s claim affects only multiple-murder multiple- (the Edwards); in count I of Annette as to contained murder (the Slavik IV murder in counts III and circumstances found true special “wilful, deliberate murders), and Selix murders to be jury found the however, find, intended to that defendant premeditated.” did not Therefore, asserts, cir- special kill the multiple-murder Edwards. cumstance found true in count I fall. must

The People concede as error to this latter multiple-murder special-cir cumstance finding, agree Additionally, it must be set aside. we must set aside one the two remaining multiple-murder special-circum murders, stance In a case findings. only one multiple multiple-murder special v. alleged jury. (People circumstance should be and found true Allen, 1222, supra, 1273; Cal.3d v. 43 Cal.3d People (1987) Anderson Cal.Rptr. 742 P.2d two of the 1306].) Accordingly, [240 aside, multiple-murder only set special circumstances must be one should have been found true. Penalty

V. Phase Issues A. Prejudicial “Excessive” “Invalid” Multiple-murder and/or of Effect Special Circumstances above, found,

As noted jury erroneously and hence considered 190.3, at the penalty (former trial factor (a)), three multiple-murder spe § cial conclude, however, circumstances instead one. of We that the error was harmless. The jury did any not consider evidence that not otherwise admissible and relevant penalty fully to the It was that decision. aware multiple Edwards, murders it was were the murders Slavik considering of Selix, fully aware that circum multiple-murder special stances only involved (Allen, these murders. 42 1281- Cal.3d at supra, pp. 1283 [improper charging witness-killing, and consideration of 11 prior-mur der-conviction, of 3 multiple-murder circumstances instead such special special error].) circumstances harmless Even as the con assuming, People cede, one that of merely the three was not but was also findings “excessive” invalid, ante, conclude, still we must People (1988) as we did in v. Silva 604, 573, pages 632-636 1070], 754 P.2d that the Cal.Rptr. properly [247 admitted aggravating on simply evidence was and that this overwhelming, record there is no reasonable possibility that the error aifected the penalty verdicts.

B. Failure to Hung Instruct on the Result Jury of asserts,

Defendant argument, without case or support court in erred refusing to instruct penalty at the start of deliberations that defendant would jury be sentenced to life if the parole without possibility could not reach a verdict. have in rejected We this contention most past,

1115 view, Miranda, 105. In our such an at page Cal.3d recently in supra, deliberate, duty jurors’ sense diminished have instruction would jury of a is hung The effect jurors. of fellow to the ideas and to be open it. v. (See People before any issue deliberation jury’s to the irrelevant 749 P.2d Cal.Rptr. 511-516 Cal.3d (1988) 803] Kimble [244 deadlock consequences law on to 1977 instruct pursuant [failure re- refused The court error].) properly not jury response question instruction. quested Evidence Mitigating on

C. Instructions in failing erred amicus curiae assert the court Defendant and full of defend range that it jury instruct the could consider affirmatively sentence. determining appropriate evidence mitigating ant’s proffered court, however, of the standard (j) former factor modified trial it could consider as a inform the death instructions to penalty history and character or background, factor mitigating “[i]/ze defendant's crime, even any gravity which extenuates the other circumstance addition, In added.) the crime.” legal (Italics it is not a excuse for though catchall,” “a that factor was described its jury (j) the told the prosecutor instruction, court’s modified and in terms that the scope predicted precisely “I of no circumstances this extenuating concluded can think simply, Similarly, the that factor jury case.” defense counsel told particular ® why is all the you a consider and that evidence things “leaves lot of for to then Counsel summa you.” that has been so far is now before presented the evidence history, suggested defendant’s troubled and that argued rized On well-behaved in a structured environment.21 prison defendant would be Kimble, record, no 44 Cal. 3d at 509-510 (See supra, pp. we find error. this Allen, 1222, 1276 42 Cal.3d law]; supra, of 1977 death (j) penalty [factor law].) of 1978 (k) death penalty [factor Penalty Jury

D. the Discharge Failure to failing curiae the court erred in to Defendant and amicus assert the court that it was jury after the informed discharge jury penalty 21 jury guilt stipulation could consider the also asserts there was “no Defendant reveals after both phase during penalty phase its deliberations. The record evidence” evidence, asked, matter is then to be sub parties present the court declined to further “[t]he adduced, presume?” prosecutor I The upon of the evidence heretofore mitted the basis instructed, determining penalty imposed agreed. jury which is to be Thereafter the “[i]n defendant, during any you received all the evidence which has been on the shall consider of added.) (Italics except you Defend part this as are heretofore instructed.” trial case ant’s claim is thus meritless. 18, 1980,

unable to reach a On trial penalty began verdict. December and jury was submitted to on the presented during guilt evidence read, phase. jury That afternoon sent “The jury the court note which stated, is to reach jury unable a verdict.” The court in the brought your you “This has been a At the received note had been long trial. time I deliberating a than penalty. little more one hour on the subject in a penalty case of this is a which can type subject people about reasonable my In disagree. you deliberating have not opinion long enough been discuss the matter fully fully understand each other’s viewpoint, [fl] It has day, you been an I to send tiring emotionally charged day. going am home and ask return you now tomorrow at 9 o’clock and morning resume deliberations at that time.” it jury

Defendant insists the should have been once it stated discharged was unable to reach 1140 provides, “Except a verdict. Section as provided law, jury cannot be after cause is submitted to them discharged court, until they have agreed their it in open verdict rendered upon ... unless at the may of such as the court deem it expiration time proper, satisfactorily appears that there is no reasonable that the probability can agree.”

We have held that trial court is vested with broad discretion determining whether is there a “reasonable probability” agreement. v. (People Rodriguez (1986) 726 P.2d Cal.Rptr. Cal.3d [230 113].) In Rodriguez, the trial court denied a motion for mistrial after the jury, deliberations, on the 18th day of the it notified court that was “hope lessly deadlocked.” jury The had sent on four messages previous similar The occasions. court then the numerical division and instructed requested jury the to continue days The reached a verdict four later. deliberating. jury that, trial, evidence, We found in the of light of of the the amount length issues, and the complexity reasonably the court “could conclude that his direction of further be as a means of perceived deliberations would enabling jurors to enhance their of rather than as understanding the case mere pressure already to reach a verdict on of the basis matters discussed (Id., 776.) considered.” at We that the court did p. therefore concluded not abuse its in jury discretion the to continue deliberations. directing case, hour,

In this the jury only had been for one not deliberating eigh- teen days, before a It informing the that it could not reach verdict. judge noted, that, appears clear to us as the had jury trial court the not been deliberating fully for a time sufficient “to discuss the matter to under- stand each in fully viewpoint.” jury other’s statement to the court’s that the probability a reasonable way and there existed no coercive We further. it deliberated or the other—if way could reach verdict—one in court’s action. find no therefore error Mitigating

E. Failure to Present Evidence evi mitigating present counsel failed to asserts trial Defendant error constituted and that this omission during penalty phase dence 13, 710 P.2d v. Cal.Rptr. Deere Cal.3d (1985) under People [222 Deere, however, not here does disclose the record Unlike 925]. during penalty additional evidence

defense counsel declined to present In of such evidence. merely presentation because his client “vetoed” trial stead, that, told expressly defendant’s counsel the record reveals as one of there guilt at the they phase all of their evidence jury, presented nothing present. more to statement, defense counsel informed

During guilt phase opening about you to know more jury, present “We will such evidence as allow We will activity right present criminal than the do now. police [defendant’s] he does than you such evidence as allow to know more about [defendant] now.” right above, evidence

As “mitigating” noted the defense introduced substantial (Ante, 1070-1073.) During guilt phase presentation. pp. the course its jury, argument, defense counsel reminded guilt phase closing “[w]e information. other brought duplicate have some information that was isolated, may [which], We have been on some the information redundant type as And that is inherent you not have struck important. make, an (Italics we to reconstruct entire were presentation trying life.” added.) reiterated, counsel closing defense

During penalty phase argument, you as much information everything “We have done can with provide we will tell “The judge as we about Counsel also explained, could [defendant].” character, . . . to consider you says you that the law are [defendant’s] of for things That leaves a lot history and mental condition. background, presented been so that all the evidence that has you why to consider and is more are not presenting And the reason we you. far is now before [fl] we everything You have everything. We have presented evidence is obvious. consider, You have an overview everything have to and present [fl] others, kill that is bom to I no you person life. submit to that [defendant’s] because life does so person’s an another up taking individual who ends he as influences, up, as he grows develop the factors that pressures, character, influenced factors what You understand his own develops [fl] You in the home. strife You understand development. [defendant’s] had while of his parents understand that before the divorce [defendant] trouble that overt in the type not involved many he was problems, divorce, first for the the divorce that after occurred after the You know [fl] law, they were but time in conflict with coming started [defendant] Authority Youth California Even at the people conflicts. unusual-type occa- previous on two noted that . . . also know that you [defendant] of penal in type of time some sions at for a period least has been confined California institution, Redding, in Camp once Creek Conservation Crystal Youth in the California I believe year and the second time for over a from the files the written Authority, reports, You have the written [fl] his freedom behaved when California on how Authority Youth [defendant] in a him, strict controls very under was taken from when he was away put that institution, documents find in those government you reviewing will well, released he was record and when good behaved had a [defendant] him, over watching still under the control of the officer who parole well, After very him did giving guidance, that [fi] [defendant] [defendant] some degree guidance, out of had some got youth authority, he again, that You find of time. will degree of from the officer for a help parole period record, obtained, involve not he did made a work kept good job, good of 1978.” and summer himself in crimes of violence until the spring during In light presented of the voluminous evidence trial counsel to the issue submit the guilt phase, penalty we cannot fault their decision to made it Trial counsel jury on the basis of the evidence previously presented. they clear because they that were additional evidence not presenting Deere, inapplicable. therefore more to 41 Cal.3d is nothing offer. supra, Further, introduce not to decision the record that counsel’s suggests presence additional Out of the evidence was a sound tactical choice. intro- considering it was jury, the informed defense counsel that prosecution in jail conduct poor at the ducing evidence of defendant’s penalty phase the prosecution during argued the course of trial. Defense counsel notice. Counsel advance could not introduce such evidence without giving rebuttal, maintained but admitted that the evidence could be used penalty is . evidence our . . that absent our position putting [at “[i]t no presented The phase], prosecution are therefrom.” people precluded rested, presumably defense also evidence at penalty phase. they had evidence any mitigating a tactical choice that additional reflecting Miran- (See in jail. conduct by of defendant’s be evidence outweighed would da, 118-123, cited.) and cases there 44 Cal.3d supra, Mitigating Factors to Absence Argument as F. Prosecutorial of absence of the argued that the prosecutor Amicus curiae asserts v. (People factors. as aggravating could be considered mitigating factors 794, 710 P.2d Cal.Rptr. 289-290 41 Cal.3d Davenport (1985) [221 and found a statements closing We 861].) have reviewed the prosecutor’s one, of at least and that the absence statement solitary fleeting suggesting 190.3, two, (d) partici factors (former listed of the factors possibly [victim § as aggravating. could be considered justification]) and pant] (e) [moral closing centered argument penalty phase thrust of the prosecutor’s the defendant had committed. the crimes on nature and circumstances hand, counsel, the told the that not all of statuto- jury Defense on the other defendant’s (i) his thesis that ry emphasized factors and applicable, were (ii) and because history jury’s sympathy; and the background warranted in, his life to send message defendant turned himself should jury spare the fear of being other that turn themselves without they may to murderers Thus, weigh encouraged jury sentenced death. the the arguments the mercy the brutal nature of the mitigation against factors and supporting crimes. believe

In we do not the light phase arguments, the focus the penalty above, jury the As noted prosecutor’s comments were prejudicial. duty mitigating

aware of its the full of defendant’s evi- range consider Moreover, the instructions dence under former factor under standard (j). argument given pursuant (and accompanying to the 1977 death law penalty determine, on by both it was its discretion to based parties) aware of evidence, circumstances, In for defendant. these appropriate sentence aggravat- in view nature of the admitted overwhelming properly possibility find reasonable ing jury, evidence before we no statutory two of brief one or sen- prosecutor’s mischaracterization sentencing influenced decision. tencing jury’s factors 190.3, (c) (g)22 G. Former Factors Section prosecutor argue for the improper

Amicus curiae claims it was did defend- sanity jury not believe guilt verdicts indicated jury making its to be sen Former section 190.3 set out the factors considered tencing (c) factor on the to consider “Whether or not offense decision. Former called

1120 ant was under he acting extreme mental illness or that was unable conduct himself in law. accordance with the We believe this constituted Fosselman, more than nothing argument” under Cal.3d “vigorous supra, 572, 580.

We also note that defense counsel that was argued the view prosecutor’s incorrect. He jury reminded the that the believed defendant psychiatrists merely was from suffering “very serious noted that problems” mental and because these “did not problems insanity reach the level of or diminished that in capacity,” did not mental preclude consideration defendant’s state the the determining sentence. Counsel asserted that do not commit people crimes defendant seriously committed unless with “something wrong [is] them” he argued defendant was not control when complete committed the murders. event,

In any any clearly harmless. was improper argument jury was instructed—pursuant (j)—to to factor background consider defendant’s sentence, history in his determining and almost all relevant evidence defendant’s background jury concerned his mental state. undoubt- Thus edly considered defendant’s mental determining state appropriate sentence; whether it did so under former factor instead of former factors (j) Ghent, (c) or is (g) irrelevant. (See 776.) Cal.3d supra, Amicus constitutionality curiae next attacks of former factor (c) on ground it “ex impermissibly jury’s limits the consideration to treme mental or (Italics emotional We have added.) rejected disturbance.” Ghent, this claim in 43 Cal.3d at 776. supra, page Amicus finally curiae claims former factor which (g), parallels insanity,23 instruction on legal is it fails to unconstitutional because instruct the jury may it though consider defendant’s mental state even it found sane, him legally it assertedly because fails to allow for consideration was committed while the under the influence of extreme mental or emotional provided (g) disturbance.” Former factor should consider “Whether or not at criminality capacity appreciate time of the offense of his conduct defendant to requirements or to impaired conform conduct to the a result of dis- of law as mental ease or the effects of intoxication.” reads, if, person legally No. 4.00 or 23CALJIC “A is insane as a result of mental disease defect, capacity criminality appreciate mental he lacks substantial either to of his conduct requirements or to conform his conduct to the of law.” (1982) v. Robertson In People as “disease.” as well mental mental “defect” 77, of this court 279], plurality 655 P.2d 21 Cal.Rptr. 33 Cal.3d [188 973, 98 L.Ed.2d that, 438 U.S. 586 (1978) v. under Lockett Ohio [57 noted 1, L.Ed.2d U.S. 104 455 (1982) v. Eddings S.Ct. Oklahoma [71 2954] by be should not understood instruction 869], 102 S.Ct. the standard factor. a mitigating as of “mental defect” as consideration jury precluding so have been however, would jury a reasonable agree, We cannot for the here, constitutionally deficient is provision misled or that the former was suggested jury in the former Nothing provision reasons advanced. noted, evidence, as free “mental defect” not to consider defendant’s under former evidence” all such “mental remained free to consider jury (j). factor

H. Error Other-crimes Instructional notes, the prosecution we have held that when

As amicus curiae former section ’’other crimes” in under aggravation introduces evidence 190.3, may not consider jury the court must sua that the instruct sponte doubt. beyond such evidence unless such reasonable crimes are proved 41 53-54; (1985) 33 v. (Robertson, supra, Phillips Cal.3d at pp. People Miranda, 127, 44 423]; supra, Cal.3d 711 P.2d see Cal.Rptr. [222 in Robert concurring Cal.3d As 97-98.) opinion at Justice Broussard’s pp. however, stated, be required ”a should son reasonable doubt instruction as an or referred to only when evidence other crimes is introduced 190.3, section factor to Penal Code aggravating pursuant former [factor] only (b). purposes, When such evidence is introduced and used for other instruction, bemay is but a defendant not entitled to a reasonable-doubt to the purpose entitled an use of that evidence instruction limiting 41 Cal.3d (33 60; Phillips, supra, for which it was admitted.” Cal.3d at p. at p. 72.) case, during

In all evidence was admitted this “other crimes” Most phase presented of defendant’s trial. of this evidence guilt noted diminished as except defense in an effort to capacity, establish determining did to consider it jury below the not ask the prosecutor as to required defendant’s sentence. No instruction was reasonable doubt crimes. v. Cal.3d 958-959 (1988) these Williams (People [245 336, 751 P.2d Cal.Rptr. 395].) Eoff, Lieutenant gave

Amicus curiae notes that the list defendant also committed, to two referred to contain crime purporting every above, charged crimes that were not in this As explained jury case. specifically instructed that it not concern with “should itself the reasons crimes these two were case.” the “other charged not this As with crimes” discussed, evidence just these two were or crimes not introduced referred trial; at the penalty did not ask the consider these prosecutor determination. crimes in its sentence making a reasonable-doubt Again, instruction was not required.

Finally, amicus curiae notes that in the closing argument prosecutor urged jury the the consider evidence” that and had “strong Slavik Moore been even it raped, though had not found that Slavik Moore were mur- or dered commission during the of a argues Amicus curiae this was rape. because improper jury already the that determined these “other crimes” had not been beyond a reasonable doubt. proved Attorney

The General concedes but He error insists it harmless. willful, Motion Ruling J. on Modification court, auto defendant’s in on ruling

Amicus curiae claims that 190.4, (e)), subd. (former modification of the judgment matic motion for § a factor in aggrava factors as mitigating the absence of viewed improperly certain acknowledged the record discloses the court tion. Our review of absent, state explicitly factors but did not were potentially mitigating Indeed, be, be, in aggravation. or considered such absence was would detailing the death penalty, abundant for grounds imposing court listed the crimes. and circumstances of nature to consider erroneously the court failed

Amicus curiae also claims evidence. mitigating and emotional disturbance as mental “nonextreme” record, however, it merely stated discloses that the court Our review of the the time or emotional disturbance at evidence of “extreme mental found no to consider under (as jury) The court was free was the of the offenses.” or emo mental any evidence of defendant’s “nonextreme” (j) former factor offenses, of such or to consider the presence at the time tional disturbance mitiga- that the court failed to find sufficient The fact generally. disturbance 24 in refusing the standard to delete from Finally, curiae asserts the court erred amicus assertedly in his case. present” “not mitigating factors that were potentially those structions Ghent, 776-777, pages and Mi rejected supra, 43 Cal. 3d at previously this claim in We have randa, pages supra, 44 Cal.3d at 104-105. jury. The erroneously were read to the 1978 CAUIC instructions Defendant asserts the however, record, instructions were delivered. that the 1977 CAUIC reveals

1124 tion to outweigh the factors does not aggravating mean that court failed all of consider defendant’s evidence. mitigating Viewing court’s com- whole, ments as a we find no error.

Conclusion judgment guilt, findings of two circumstances special (former 190.2, subds. & (c)(5) (c)(3)(iv)), and the of death are affirmed. judgment §

Panelli, J., J., J., Kaufman, J., Arguelles, Eagleson, concurred. MOSK, J., I concur.

onlyMy criticism majority is its opinion treatment the prosecu- tor’s comment concerning effect on victims’ Once as again, families. ante, v. People Siripongs (1988) P.2d page Cal.Rptr. [247 1306], majority construe the States United Court Supreme prohibition against consideration of impact on the families of to be limited victims testimony.

Such restricted Maryland v. reading (1987) Booth U.S. 496 [96 440, L.Ed.2d 107 is clearly excluding S.Ct. erroneous. The purpose 2529] families, clear, discussion the grief of not as Justice Powell made is so as “to inflame the jury.” by It should be obvious that a can be inflamed argument calculated as well as v. testimony. (See witness also People 500, Levitt (1984) 276].) Cal.App.3d Cal.Rptr. [203 The error argument we permitting subject on this is also manifest when note family not impact is one of for permissible the enumerated factors Code, the jury to consider in determining (Pen. 190.3). penalty § Booth, however, Despite majority’s reach misinterpretation they tenable result. Although prosecutor both improperly jury, asked the guilt penalty phase arguments, to consider the effect on the families Christmas, at his was a mere passing reference and he did not dwell on the error subject at Thus I conclude that under these circumstances length. was not prejudicial.

Broussard, J., concurred. and the

Appellant’s rehearing for a was denied petition August opinion was modified to read as above. printed notes the following evidence was before the the properly jury: deliberate, and premeditated Slavik; murder of sodomy, the and oral rape, willful, deliberate, murder, and copulation, the 11- and of premeditated Selix; year-old the murder of the during Edwards the commission of rape; second degree Moore; murder of sodomy, the and forcible kidnap, rape, M.; oral of copulation Kelly the and oral kidnap, rape, copulation forcible H.; of Robin sodomy, forcible oral and kidnap, copulation, attempted S.; of Lisa of rape Y.; Marla on W. rape assault Donna evidence, In of view this properly admitted we do not believe aggravating it reasonably possible jury that the have different in would reached a result absence the prosecutor’s argument may that defendant have raped Slavik and Moore. We conclude the was harmless. improper argument I. Comment on Dangerousness Future Defendant’s During the guilt phase, jury learned that defendant had told friend, killed, you’ve you “once can kill always again” killing “just doesn’t jury bother him.” The also learned that one of the psychia when future, trists he asked defendant if would commit similar in the crimes replied, defendant The “probably.” reminded the of these prosecutor concluded, statements during the penalty phase closing argument “There is no indication that the would not kill if it served again like, his purpose say, prison.” in to de reference an impermissible constituted asserts this Amicus curiae is custody while actual violence and that dangerousness, fendant’s future inference of an reliable to sufficiently support evidence only type however, have, type never so restricted We dangerousness. future be based. On may argument dangerousness a future on which evidence long held that so we 41 Cal. 3d supra, v. contrary, Davenport, in People evidence inadmissible based upon not comments as prosecutor’s [are] “[t]he is argument such dangerousness” future testimony expert predicting Miranda, (Id., at 44 Cal.3d 288; supra, see also entirely at p. proper. anof rely predictions here did not on 110-111.) prosecution pp. instead, it relied on dangerousness; of future its claim support expert de and on statements committed of the crimes defendant circumstances was presented the argument The manner which made to others. fendant than “vigorous more nothing and constituted under Davenport was proper Fosselman, 580. 33 Cal.3d at page supra, under argument” Silva, 604, 639.)24 45 Cal.3d supra, v. (See People

Case Details

Case Name: People v. Rich

Court Name: California Supreme Court

Date Published: Jun 30, 1988

Citation: 755 P.2d 960

Docket Number: S004355. Crim. No. 21840

Court Abbreviation: Cal.