*1 Apr. 25803. 1992.] S004729. Crim. No. [No. PEOPLE, Respondent,
THE Plaintiff and THOMAS, Appellant. Defendant and RALPH INTERNATIONAL *13 Counsel *14 Reisman,
Alex Court, Colman, Reisman, under appointment Supreme Bourdon & Bourdon and Nancy Colman for Defendant and Appellant. John General, K. Van de and Daniel Kamp E. Steve Lungren, Attorneys White, General, Chief Assistant Attorney John H. Assistant At- Sugiyama, General, Gillette, torney Dane R. Robert R. Granucci and Gerald A. Engler, General, Deputy Attorneys for Plaintiff and Respondent.
Opinion PANELLI, J. the second convicted International Thomas of jury Ralph A murder Kniffin degree of Gioia and the murder Mary degree Greg first of Code, (Pen. 187),1 in finding true that he used a firearm the allegations § (§ 12022.5.) commission of each The found true of the murders. also and fixed the at multiple-murder special-circumstance allegation penalty 190.2, (§ (a)(3).) (§ (b).) death. subd. This is automatic. subd. appeal We affirm in its judgment entirety.
I. Guilt Phase A. Evidence.
1. Prosecution’s case-in-chief.
a. Introduction. 16, 1985, During early hours of Gioia and morning August Mary Greg Kniffin beaten were and shot at point-blank range Village near the Rainbow in the compound of Defendant was of their City Berkeley.2 convicted murders. prosecution’s case consisted evi- entirely circumstantial dence falling generally categories: into defendant’s following ownership wounds; of a rifle that could have inflicted the fatal defendant’s presence of the not company victims before the defendant’s conduct long killings; and statements after the killings, guilt; consciousness of reflecting certain physical evidence.
The circumstantial of the nature evidence makes it to set forth necessary this facts of case unusual detail. Victims’backgrounds.
b. Gioia, mother, Kniffin, father, Patricia Mary’s and David testified Greg’s regarding victims’ and how came to backgrounds they Berkeley be the time their Mrs. deaths. Gioia testified that old at her Mary, years unspecified 1Further statutory references are to the Penal Code. early 2In the City Berkeley set Berkeley aside a landfill area near the Marina to provide living space people had previously living who on the public been their vehicles area streets. The became Village. Village known as Rainbow Defendant lived at Rainbow with girlfriend, 16,1985, August Lenise Allen. On 15 and number of followers Grateful Dead rock band were staying at Village play Rainbow because the band was scheduled locally during the coming Among Mary weekend. them were Kniffin. Greg Gioia and *15 Kniffin testified death, Mr. for work as a baker. came to California to look death, came to and in June 1985 his quit job old at his Greg, years a new direction. California to seek
c. Forensic evidence. Sciences, Iocco, Forensic of a with the Institute Dr. John pathologist Mary’s the victims. the bodies of that he on performed autopsies testified a blue running pants, denim shorts over purple was clothed blue body shirt, sweatshirt, running and athletic socks slip, a white a white pullover substan- was zipper was undone and the shoes. The of the shorts upper snap wound; the exit entry her face bore a right gunshot down. The side of tially and were bruises multiple the left of her face. There wound was on side all of which body, appeared trauma to the contusions and other of blunt signs bore her back Additionally, death. Mary’s to have been inflicted before abrasions, being the result of probably mortem approximately post had lacerated entry or dirt. The wound dragged asphalt gunshot over veins; bony multiple face showed carotid arteries and the neck and jugular box, or epiglottis, fractures a the wound. The of the voice top as result of in the and blood was There was a fracture of the skull hinging lacerated. There and teeth. fracturing jaw brain. was also extensive there a three-inch seven-and-one-half-inch Dr. Iocco testified that was neck. Greg’s the left side of entry gunshot combined and exit wound on neck, arm, face, each There were and over lacerations bruises on All Dr. Iocco knee. of these were inflicted death. injuries Greg’s prior have been testified that below the beard area neck could bruising Greg’s on marks that could have caused a hold. back bore scratch by choking Greg’s was death Greg’s resulted from down or cause of falling being dragged. the effects of the wound to his neck. gunshot level at the time of
Toxicological tests showed that blood-alcohol Mary’s her death Greg’s was .06 Similar tests showed that blood-alcohol percent. negative level at the time of death was victims tested percent. .11 Both for narcotics and use. marijuana stimulants. Neither victim was tested mouth, Swabs taken from the of the victims tested genital, rectal areas for the negative and seminal fluid. presence sperm Richardson, Jack F. ballistic differing firearms described expert, of .44 Based his examination of properties magnum handguns rifles. wounds, mortem the exit post Gioia’s photographs Mary opined wound would shotgun, be normal for a rifle or but high-powered inconsistent with he had seen made Richardson testified any by handgun. that the .44 magnum is most on the market. powerful handgun
506 ownership magnum
d. .44 Defendant's of rifle. 14, 1985, Allen, Rem- On Lenise a August girlfriend, defendant’s traded rifle, Model serial defendant ington magnum .44 number in after he a he had her. She the rifle repaid acquired April debt owed had from Martin Barbena. On Martin Barbena described the of the Model 788 rifle. the peculiarities a basis of Barbena’s testimony, prosecutor argued person only murders, with that rifle have hence that familiar model could committed defendant, rifle, of owner was the Barbena testified that the killer. rifle had no could fired each into the clip, by handloading but be round recessed, The chamber. breech was so a user each round push fully had in into or there a If and half place, was chance of a bullet were half jamming. out, testified, it if Barbena would tend to it were more simply any out hang; that, than it would out fall foir the through space charge clip. in Defendant the rifle a case in the rack on kept leather either luggage top of in his car or behind car’s seats. He stored ammunition a bucket container which Tupperware kept Bergman, he inside the car. David a resident, Village Rainbow testified that about a before the murders he month saw defendant the rifle at a near the using target site practice dump village. Village
e. Testimony regarding Rainbow residents events of 15 and August 16. residents, of several testimony Rainbow Village although imprecise time, and somewhat inconsistent as to defendant placed company the victims during night of the murders and established that defendant had fired his rifle earlier that One resident also testified that saw evening. defendant the area where the victims were killed early following morning. Medlin, resident,
Thomas Village Rainbow before testified that just 15, 1985, sunset August on fired defendant his rifle at a flag Canadian Shorman, resident, Harry another village had on mounted his bus. Jim Prew testified that sometime after 10 on August p.m. Prew,
and the victims were among group that included Chris people Harter, Campbell, Paul who were beer Prew’s van at drinking Rainbow Defendant Village. wearing a dark About jacket jeans. a.m. August Prew agreed to drive his home Campbell Chris *17 off, the Campbell All After along. dropping rode except Greg Richmond. burritos, beer, and ale. they bought where drove to a convenience store group an access along Greg up Village, they picked On back to Rainbow way tiie Avenue, group 2 a.m. 1:50 a.m. or arriving about University road near a.m., announced Greg Mary for a while. About drinking stood around time, left too defendant take a Around that same to walk. going were they he where was saying going. without midnight the between testified that he hours spent
Vincent Johnson friend woman visiting 15-16 with a 2 a.m. on the night August about of drive the to on the friend was afraid Village. at Rainbow Because his bus herself, University with her as far as along rode by access road Johnson off, to him walked back her Johnson dropped Avenue on After she departure. Black, office, defendant, he who is Near saw alone. the landfill village them. within 20 feet of White 15 to couple. passed with a Johnson young He to be angry. into standing space. Defendant was and staring appeared 15, after p.m. August testified that at 9 or 9:30 on Tracy Scarborough Avenue, to he returned University with a friend on evening spending time, in the to sleep He was drunk” at the and went Village. Rainbow “pretty car, Around Opel wagon. front seat of defendant’s an blue station inoperable morning Scarborough by on the of was awakened August sunrise someone of the car’s door. He looked and saw slamming up hatchback car, back of did see was. He went walking front but not who it past defendant, Later that woke and saw sleep. morning Scarborough again then wearing who was camouflage pants. testified Wylie stayed
Calvin that he worked as a Oakland carpenter at Rainbow He left for work at 6:30 Village during the work week. habitually 16, 1985,3 work a.m. On the of while morning August driving Friday, bending down the access road from Wylie Rainbow saw defendant Village, looking down near a weed cutter to be the side of road. He appeared through some had been Defendant was plastic bags dumped there. He that defend- wearing camouflage-type Seeing looked clothing. Wylie. ride, ant did not want a on. drove Wylie Discovery bodies.
f. after bay. Sometime sunrise August body floating on was seen Detective Berkeley Police Fred Eihl arrived at the landfill Dump Berkeley 3Wylie expressed August August some doubt as to whether he saw 15 or defendant on but was wearing camouflage clothing Testimony asserted him. when he saw establishing other witnesses wearing clothing August that defendant was on 15 and dark camouflage clothing August question Wylie’s date 16 tended resolve of the observation. officers, area after a.m. Other well as a number of shortly police as civilians, were already at the scene. Eihl Detective testified that was about 30 feet from the standing body, visible, which was Some floating clothing facedown. white upper but neither the nor the could about standing face be seen. Defendant was legs Eihl, 15 feet behind As about feet from from the body. personnel *18 water, coroner’s office to remove the from the face began body while was still not and Eihl male visible before could tell whether the was body female, said, defendant Mary.” “That’s
On August Greg’s divers recovered from the bottom of the police body at a feet from bay point 30 the shore.
g. August statement to Detective Eihl on 16. Defendant’s identification, Because defendant had a Eihl him made tentative asked more information. Defendant Eihl he knew victim as Mary told that only and that had washed dishes at they together Village nights Rainbow two earlier. Asked when he last defendant Mary, they saw said had partied before in van night just the gate. party outside Defendant’s account of the was similar to that named generally Jim Prew. He the others provided by and group said that all Richmond Chris. except Greg gone had to with Richmond, said, On the back from way buy beer. they stopped defendant to road, Coming down the and drove back to dump they picked Greg up that, defendant, Rainbow Village. Shortly according after to broke party went Eilil up everybody their asked defendant what he separate ways. did after that. him Defendant told he saw as he Mary Greg walking was out the road from to dump Rainbow Village Ledger’s Liquor Mary Store. match;4 Greg asked him for a one and give defendant to them stopped smoked some marijuana with them. He to but proceeded then Ledger’s, it found closed and returned He to went to village. got money some out, various locations to try marijuana. light some When it purchase grew he went to a laundromat in the area of and San Avenues. University Pablo After finishing he returned he laundry, to Rainbow There ran Village.5 Shorman, Harry into him who told there was a water. body floating Defendant told Eihl he went down to observe.
h. statements to Village other Rainbow residents. Defendant’s David Bergman testified he saw defendant around 9 a.m. or 10 a.m. August 16. Defendant told Bergman that his rifle Bergman was missing. 4Although match, defendant claimed the victims waterlogged needed a matches book of Mary’s was recovered from clothing. 5The total round-trip distance involved in be 16.8 defendant’s narrative was calculated to miles. after Bergman him before or had told this was unsure whether defendant defendant advised Bergman in the water. learned that a had been found body Tracy Scarborough Medlin and the theft Both Thomas report police. rifle told them his 16 defendant morning August also testified that on the missing. was he had been awakened
Later that advised defendant that day, Scarborough car. He door of defendant’s about 6 a.m. of the hatchback slamming it, saying if Defendant denied asked it was defendant who slammed the door. day, The following he was time was “uptown.” not around there but found, he he Scarborough thought after was defendant told Greg’s body that his would be in trouble his rifle was was worried missing; because had been used to shoot both victims. gun found, Medlin body
Thomas testified that after Mary’s *19 him Medlin the kit and asked to hold his kit for a while. took gun cleaning Later, hid it defendant Medlin to hide the Tupperware his car. asked ammunition, Medlin refused container that defendant used to hold his but him back kit the container with gave gun cleaning both (i.e., ammunition.6 Defendant told Medlin he had been “dumpster diving” back searching items) for all the and had been salvageable previous night and forth from the town times. village into several August
i. statement to on 17. Inspector Wolke Defendant’s 17, On August interviewed de- Berkeley Police Daniel Wolke Inspector fendant at Rainbow The interview not recorded. Defendant’s Village. was Eihl, statement with generally agreed with what he had earlier told Detective interview, certain In the defendant said that discrepancies. August Greg interview, van; was not at the in Jim Prew’s in the earlier he had said party Greg was he present. described his encounter with Additionally, Mary Greg near the landfill office somewhat to Wolke than he had to differently Eihl. When he met Mary Greg way Ledger’s about 1:30 a.m. on his to Wolke, defendant Liquors, told him and he they marijuana asked for some them, shared some with it in He he also smoking his corncob said pipe. drank beer with them. Defendant claimed he have at that pipe must lost time. Defendant said he got his from his car about sunrise. laundry
Defendant refused tell to Wolke whether he knew at Rainbow anyone Village who owned if he firearms. Asked he owned defendant said any guns, 6Medlin village testified that other due weapons August residents asked him to hide on to a Village belief that Rainbow going to be searched. Bill Caruthers asked Medlin to Remington hide a .22 pump Harry brought billy action rifle. Shorman Medlin a club. had a .44 rifle He recited the magnum clip. bolt action without a Remington rifle, serial from Wolke defendant memory. number When asked to see him told it been stolen Thursday Thursday evening. had late afternoon or Defendant Wolke lidded and claimed that Tupperware showed container he were if 10 or bullets had in it Wolke asked defendant kept missing. stolen; had made a report gun or told had been police anyone said no. Defendant said he fired it on flag had last at Shorman’s Harry evening. Thursday Inspector
j. August statement to Wolkeon 20. Defendant’s Wolke testified on at Rainbow defendant said he August Village, then, wanted his rifle to as Wolke offered to take but report report stolen. defendant said would come police department following day. on Detective Wolke testified that defendant came on 1:45 August p.m., to make police a formal department report. statement, In an unrecorded rifle to Wolke and defendant described the again recited the serial He Wolke he had memory. pur- number from told Durant, $125 chased it Bill April 1985 from White male named east of Avenue. He Bill. Telegraph was unable describe 15-16,
Defendant another gave August account events of more *20 detailed his earlier and in than statements inconsistent with them some He Wolke he respects. just told before dark on had with August gone Medlin, wife, David and Bergman Melody Thomas Medlin’s to stores liquor Avenue. University Defendant After returning some ale. to purchased Rainbow defendant ran He and Village, Tracy Tracy into drank Scarborough. ale and in marijuana smoked car. fell Scarborough defendant’s About 9 p.m., Prew, asleep. Defendant joined Jim Chris and Paul Harter Mary, Campbell, at Jim’s van and drank with were and defend- They whiskey, them. drinking ant returned to his car to get a bottle of Wild pint Turkey. Richmond,
Later in evening, Chris a ride they got asked for to so all exit, the van and drove out to At the they Richmond. San Pablo Dam Road went to a convenience store and burritos and It was 12:59 a.m. bought beer. They Chris off and dropped returned to to give Rainbow Village, stopping Kniffin ride Greg from University Avenue. continued to drink They tired, together for 15 or 20 Jim minutes. Then said he was and Mary Greg left, and went defendant back car to to his off his of Wild drop pint Turkey. time, At that defendant decided to to to some beer. go Ledger’s Liquors buy out Walking Vivian past village, saw car north Cercy’s pointed along He also roadside. saw Mary Greg and near the concrete docks. Greg them gave Defendant him if matches. he had any to ask him over called of deer design a beaded with in a leather-like pouch matches wooden some if he him asked They “Peruvian love beads.” called defendant which mating, pipe a wooden out he did and took said Defendant marijuana. had any Defendant beer. some also drank They marijuana. which all smoked they left must have and stem with a broken a corncob pipe he also had told Wolke defendant were. While they where else lost it and Mary Greg it behind and Village to Rainbow them, on his way passed by Vince Johnson was with and Mary minutes with of less than Defendant a total spent hello. said closed, he the store Finding Ledger’s Liquors. Greg proceeding before noticed his car and $20 from He and jacket his village. got returned to the then Defendant front seat. was still Scarborough sleeping that Tracy marijuana. effort to purchase in an unsuccessful various locations walked to Rainbow returned to He then on his way. see Mary Greg He did not car, to the and walked from his his got laundry removed his jacket, Village, daybreak It was about Pablo Avenues. and San University laundromat at when he got it was what time out of the car. Asked laundry when he his got after 6 said it was defendant laundry, to do his began to the laundromat and it defendant said opened; if he knew when the laundromat a.m. Wolke asked a.m., doing 7 a.m. While after laundry he must have done his at 7 so opened some bakery got went across the street to his defendant laundry, Roseman, who Claude a man named Defendant also said he ran into coffee. Hotel, lent Claude a dollar. lived at the UC landfill office stopped by On return village, door, car, rear opened He then went to his noticed several there. people case, a white with along rifle from its missing and noticed that his shells magnum eleven .44 container that had Thpperware approximately theft; advised Bergman the apparent it.7 Defendant told David Bergman him notify police. motive for out the figure
Wolke told defendant that the could not police why of reasons the murders. Defendant said he could think of plenty *21 said, you don’t “Why would want to murder the victims. Wolke somebody think of at the any tell me Defendant then he could not one?” said paused, regarding if test time. Wolke asked he would be to take a willing polygraph get he think about it and his rifle. Defendant said would have to missing legal some advice. and other evidence. Physical
k. 16, Wolke testified that on he examined a north Inspector August sandpile where Greg’s body of where was found and to the Mary’s body adjacent spot interview, 7During August his told Wolke that the thief had taken the defendant had Tupperware ammunition but left the case. recovered. He in the was observed two sets of marks sand and blood- drag some rocks Eihl stains on near the water. Detective to the same testified A observations. corncob with a stem recovered from the broken was pipe Near found grader sandpile, area. a road to the of the Wolke a parked west “fist-sized” dried buried inch or the surface of pool of blood an two below the The was with The next a small silver ground. grader spattered day, blood. 18, officers, bloodhounds, watch was On using recovered nearby. August an Near began intensive search for exact location of the shootings. and grader, jaw. officers found five teeth a of an portion upper Defendant arrested on was murders 1985. That same August day, searched defendant’s car to a warrant and seized Levi’s police pursuant and blue thought a shirt to have been worn on the by night crimes, boots, of pair and Chemical failed camouflage pants. testing the presence reveal of bloodstains on these Police seized any of items. also case, gun a leather con- empty magnum casings, Tupperware .44 a white matches, case, tainer some oil and holding wooden and a gun gun cleaning with papers subjects. references to firearms and and other weapons various for, find, rifle, searched but were unable defendant’s police serape alive, Greg was when he poncho wearing pouch was last seen beads, decorated with Peruvian love belonging Greg other items Mary. Testimony
1. casting doubt on alibi. defendant’s Jim Prew testified that he left Village August Rainbow about a.m. on 9:15 thereafter, 16. Shortly saw defendant near the Marina intersection of Boulevard and Avenue. Prew did not University notice defendant was (Defendant told carrying anything. Wolke he was on the doing laundry 16.) of morning August
2. Defense. Vivian Cercy testified for the defense As she preliminary hearing. trial, was unavailable at her prior testimony was read to the Her jury. which testimony, was obviously disbelieved that a jury, suggested man, third person, blond was for the responsible murders. who
Cercy, was Harry Shorman’s testified that she girlfriend, was vicinity Rainbow Village August She her 1985. two had daughters no young permanent Dodge. address. drove a 1973 On Cercy night she August parked outside the Rainbow gates Village. *22 About 1:30 a.m. morning moved her August car a Cercy dumpster across a from the parking lot village gates order to remove trash from the car. She out of the car and She a got walked to saw dumpster. woman, woman and two men near an and red van. The who standing orange men, seemed resembled Gioia. One of the had dark hair upset, Mary who beard, man, and a resembled Greg Kniffin. The other whom did not Cercy know, was blond and almost six feet The held an object tall. blond man his asked, hand and “Do think she’s seen The dark-haired man you anything?” “No, (which she couldn’t replied, have.” looked like They placed object stick) a long the side against of the car. testified that the stick could Cercy rifle, have been a but at the time she did not think it as such. The woman man, said to the blond “You give have to it back.” He “This could replied, us, said, mean to we need The money this.” woman “I don’t want any part of this, I’m going.” The woman began to walk down the hill and car. passed Cercy’s Cercy invited the woman to stay her car with her and her night two refused, “No, The daughters. woman I’ll saying, be all right.” The woman continued down the man driveway. blond told dark- man, haired “I’ll take care of this.” He walked down the roadway. Cercy drove back to her parking her children spot prepared togo later, sleep. About minutes Cercy heard three noises that sounded like firecrackers. later,
Somewhat saw Cercy a man resembling the blond man coming up later, the road. An hour and a half saw the Cercy man the blond resembling waterfront, man walk up wiping his hands on the vegetation growing into, there. Then he either of, put something or took something out backpack, walked toward the village.
Cercy drove the hill. up Just outside the gates Rainbow Village compound, she saw the blond man He again. was washing his hands and his
hair in a sink. She saw him throw over the something fence and heard it make a noise like a tin can when it struck the ground. Cercy turned around and drove down the hill again. a.m.,
About a man knocked on the window of car. She Cercy’s could not him describe except that he say was wearing a coat. The man pea asked her a series of questions and said he was kill going to her. remained Cercy there a.m., until about 5 or 5:30 when she gave village resident named Anthony ride to work.
3. Rebuttal. Inspector Wolke testified that he interviewed Vivian Cercy on August after Harry Shorman introduced him to her. She told Wolke that she had had
514 seeing a bit to drink on the of the 15th. She did not mention a quite night rifle, that, she but said while the conversation that she overhearing reported, She was person object saw a stick a 10- or 12-inch down his waistband. it She did had was not a rifle. not tell Wolke someone positive threatened kill her. that, October, he
Vincent Johnson testified had a conver- September sation with in which Cercy anything night she said she had not seen murders, of the but was out because told her to do so. speaking Harry B. Issues.
1. Sufficiency evidence.
Defendant contends that the evidence adduced prosecution was insufficient as a matter of law either to the convictions or to support establish that the murder of Kniffin. On premeditated Gregory we review the whole record most favorable to the appeal, light below determine whether evidence—that judgment it discloses substantial is, reasonable, credible, evidence that is a and of solid value—from which reasonable trier of fact could find the defendant a reasonable guilty beyond 557, 431, (People (1980) doubt. v. Johnson 26 Cal.3d 578 606 Cal.Rptr. [162 738, 1255]; (1979) P.2d 16 Virginia A.L.R.4th see also Jackson v. 443 U.S. 307, 560, 572-574, 2781].) 317-320 L.Ed.2d In in which 99 S.Ct. cases [61 evidence, the People on circumstantial the standard of review rely primarily 919, 467, (People (1988) is the same. v. Bean 46 Cal.3d 932 Cal.Rptr. [251 996]; 105, People (1982) 760 P.2d v. Towler 31 Cal.3d 118 Cal.Rptr. [181 1253].) 641 P.2d it “Although is the duty jury acquit defendant if it finds that circumstantial evidence is of two susceptible interpretations, one of which and the suggests guilt other innocence [cita tions], it is the not the jury, court which must be convinced of the appellate defendant’s If guilt beyond reasonable doubt. the circumstances reasonably the trier justify of fact’s findings, opinion reviewing court that circumstances also be with a might reasonably finding reconciled contrary Bean, does not warrant a reversal of the judgment. (People v. [Citations.]” “ 932-933, supra, 46 Cal.3d at omitted.) internal marks ‘Cir pp. quotation cumstantial evidence be sufficient crime may to connect a defendant with the ” and to prove guilt (Id. a reasonable beyond doubt.’ p. [quoting People v. Pierce Cal.3d P.2d Cal.Rptr. 91].) in this case heard evidence to show that defendant tending Defendant,
had the opportunity the means to commit the murders. *24 alive, were last seen was with when “grim,” Mary Greg they looking the during the landfill the Rainbow Village compound, near office outside A a stem was corncob with broken early August pipe hours of 1985. marks, where near the where found blood and not drag found spot police a victims such using defendant claimed to have smoked with the marijuana rifle and ammunition magnum Defendant was of a .44 pipe. possession 15th, The flag. he fired Shorman’s Harry sunset on when a shot at August he rifle stolen. He asked following that the had been morning, reported ammunition, hide that the cartridges Thomas Medlin to his but told police trying had stolen with the From the fact that defendant was along been rifle. murders, infer to hide his after the that jury reasonably ammunition could he had the rifle were killed and later of when possession Mary Greg of it. that fatal wound was of a disposed Expert Mary’s established opinion kind inflicted rifle as the .44 normally by high-powered magnum. such neck, was killed
Greg by massive contact wound to gunshot pictures which of were shown to the Defendant that because no jury. urges expert gave an as to the could opinion Greg, jury of wounded type weapon not rationally conclude that rifle killed both victims. We dis- defendant’s agree. the pathologist say can from a examination is laboratory “[W]hat more limited than what a reasonable trier find may beyond any of fact doubt, reasonable (People after the evidence as a considering whole.” Chambers 306].) Cal.App.3d bodies Cal.Rptr. of both victims bore similar wounds were of the same disposed manner within the same time From these facts span. jury reasonably could believe that the same killed weapon both Mary Greg.
Other circumstantial evidence is indicative of defendant’s consciousness of guilt. Calvin Wylie testified that about 6:30 a.m. on he saw August homicides, defendant the general area of the bending over what appeared to be garbage When bags. team was lift the police recovery beginning to water, of one body victims from the before a face or clothing could be seen, defendant—standing about 45 feet away—commented, “That’s Mary.” Eihl, Officer defendant, present at the scene and closer to the than body could not then tell whether the victim was male or female. The could jury have reasoned that only killer would have Mary’s been able to her at identify that moment. Defendant gave an apparently false reason for talk stopping to with the match, victims at the landfill office: he him said asked for a they and told Wolke he gave victims a beaded wooden pouch containing matches, but a waterlogged book of matches was recovered from Mary’s Defendant clothing. provided inconsistent of his activities on descriptions the night of the From killings. this could infer that he was lying to conceal his When guilt. Officer Wolke told defendant that the police could murders, he could replied
not out motive for the figure any one; he he said think of Wolke asked defendant to name plenty reasons. hinted that could not think at that time. Defendant’s statement any lied for the murders. Defendant himself had a motive or motives *25 he Scarborough thought his rifle. He told about how had police acquired in and was worried that missing he would be trouble because his rifle was gun his had been used to shoot both victims. him that held
Defendant the evidence adduced with against compares (1969) in 2 People insufficient to a murder conviction v. Blakeslee support of sufficiency 831 When we decide issues of Cal.App.3d Cal.Rptr. 839]. [82 evidence, each case with other cases is of limited since comparison utility, Chambers, 136 (People supra, on its own facts. v. necessarily depends However, 455.) the Blakeslee case because at we address Cal.App.3d p. Blakeslee, defendant reliance on In of consisted places heavy proof guilt it. motive, with a false alibi together of evidence of and principally opportunity reversed Teresa Blakeslee’s indicating guilt. consciousness of court in conviction because the evidence was insubstantial of what was not light the murder weapon failure to proven, principally prosecution’s produce crime, or link a the evidence could to with the and because specific weapon the defendant’s plausibly guilt be as consistent with the of interpreted brother. The as evidence of con- Blakeslee court discounted the false alibi sciousness value guilt, finding of it to be of less than solid because (i.e., her she lied she wanted to plausibly explained why protect Blakeslee, contrast, brother). 839.) In (People supra, v. Cal.App.3d p. in inconsistencies defendant’s are not so resolved. many easily statements No them defendant’s wish to plausible for from explanation appears, apart shift in from himself. of the evidence this case suspicion away Comparison Blakeslee, worth, in with that for whatever such a is thus fails to comparison reveal any deficiency proof warranting of reversal.
Defendant
that the verdict
murder
urges
of first
degree
Kniffin
killing
Greg
be reversed for want of sufficient evidence of
premeditation and deliberation. He relies on the discussion contained
550,
942],
People
(1968)
v. Anderson
Unreflective reliance on Anderson for a definition of is premeditation inappropriate. The Anderson framework assist analysis was intended as a in reviewing courts whether an inference assessing the evidence supports that the killing resulted from preexisting weighing reflection and of consid- erations. It did not refashion the elements of first murder or alter the degree substantive law (1991) of murder in any (People v. Daniels 52 Cal.3d way. 815, 122, 869-870 906].) cate- Cal.Rptr. 802 P.2d Anderson identifies [277 gories of evidence relevant to that we premeditation and deliberation “typi- find cally” sufficient to sustain (People convictions for first murder. degree Anderson, v. supra, 27.) 70 Cal.2d at as a p. Using analysis Anderson we guide, examine the evidence this case. premeditation
Circumstantial evidence suggestive of is planning activity present in this Vince record. Johnson testified that he saw defendant with the victims office, about 2:30 a.m. on August 16 near the did landfill but not mention seeing defendant’s rifle. The infer jury could that defendant returned to his car to the rifle get and ammunition before the murders. Defend committing shot, ant’s .44 magnum rifle lacked a fire had clip; order to a second one eject the expended case by the bolt and handload a round into the opening fact, In chamber. the breech of rifle defendant’s was recessed and rounds were liable to if jam not inserted. These facts properly suggest planning loading reloading rifle.8 also be inferred from Planning may the fact that the murders occurred a location Village, outside Rainbow 8Defendant theory attacks this planning activity, arguing expert testimony did not establish that the weapon same Greg killed both and Mary, and hence that the record does not
518
accessible, and at an hour
would not have been
weapon
readily
where a
v.
People
would
be taking place. (Compare
when
not
activity
normally
775,
604,
1126].)
(1984)
685 P.2d
Cal.Rptr.
Alcala
36 Cal.3d
626 [205
Both victims
The manner of the killings strongly suggests premeditation.
neck,
shots,
head and
Mary’s
Greg’s
were killed
contact
by single
“
”
an inference that
method
to warrant
sufficiently ‘particular
exacting’
(People v. Caro
defendant was
to a
acting according
preconceived design.
1035,
757,
680];
v.
(1988)
People
761 P.2d
Cal.Rptr.
46 Cal.3d
1050 [251
both
348.)
defendant inflicted on
Bloyd, supra,
beatings
Cal.3d
p.
them,
an
while
do not
suggestive
rage,
preclude
victims before
shot
“
great
inference
follow each other with
‘Thoughts may
of premeditation.
cold,
arrived at
. . . .’”
judgment may
quickly
calculated
be
rapidity
306,
425,
(1980)
P.2d
(People Velasquez
26 Cal.3d
Cal.Rptr.
[162
341],
(1980)
vacated
and remanded
We need not decide whether the defendant intended a sexual inference that The jury attack on alone would demonstrate a motive for murder. Mary “ ” could have a murder in defend- Greg’s also found motive’ ‘plausible (See (1988) ant’s need People to eliminate a witness to his crimes. v. Lucero support the inference that defendant reloaded the rifle. Because we have concluded that victims, jury reasonably reject could we magnum infer that defendant's .44 rifle killed both argument. this Mosk, dissent, Justice argues required that the fact that defendant’s rifle manual reloading provides support asserting minimal that because premeditation, for an inference of rifle, defendant was familiar with the We are aware manipulate “by he could it reflex action.” Moreover, occurring of no evidence here— supporting sequence that assertion. of acts container, case, ejecting an expended grasping drawing pocket a bullet and it out of a or other chamber, pushing it place night—hardly into in the rifle’s all under cover of involves instinctive, involuntary, sort of a reflex. response may properly or unlearned that be called
519 Alcala, 185, 1342]; People 750 P.2d Cal.Rptr. Cal.3d 1019 [245 is of motive theory this 627.) Defendant that urges Cal.3d at supra, p. killed first. victim was to which lack of evidence as due to the impermissible were not both victims evidence that There is no illogical. His contention is conclude could of the murders. at the time together present had he either killed because Greg deliberately premeditatedly witness, In witnessed, any murder. Mary’s about to or was otherwise a motive event, to prove specific never the prosecution have required “[w]e senseless, A murder. of first degree even one affirming judgment, before random, murder.” degree first a verdict of killing but premeditated, supports P.2d Cal.Rptr.2d 54 Cal.3d (People v. Edwards 436].) jury’s reasonably justified the evidence
We are satisfied that to kill. a deliberate plan defendant formed and acted on conclusion that not, therefore, to due right process violate his Defendant’s conviction does federal Amendments to the Fifth Fourteenth law as guaranteed by Constitution. Evidentiary
2. issues. game. testimony regarding “stalking” a. Admission of admitting testimony erred in Defendant contends that the trial court The trial court defendant claimed on enjoy sneaking up people. that, Medlin months testify and Thomas permitted Tracy Scarborough that he them he liked to play game before defendant told killings, and then called “stalk.” The sneak object game up people was to *28 The court sneak their ever his away being presence. without aware of rejected objections, ruling defense counsel’s and hearsay relevancy 352, under was testimony Evidence Code section value of probative that the outweighed testimony not undue The court reasoned by prejudice.9 area,” have “where have darkened might night some relevance a case we a where there was contact the killer the victims and “we don’t between know how it came “there was not about. . . .” The court also observed that involved, them, any and he he hurt weapon says sneaks on them not up sort, and it is a game of some more than that.” playing nothing The trial court did abuse its the “stalk” admitting not discretion relevant, evidence. It was having some reason to show how tendency any 9To minimize prejudice, Scarborough testimony the trial court ordered to omit from his any reference to the fact played bayonet. that defendant “stalk” with a He and Medlin complied prohibition. with this defendant, victims, been having previously seen with the could later talking have come them In upon unawares with his rifle. his insistence that the testimony irrelevant absent some that the killer in did showing fact victims, sneak on the up defendant takes too narrow a view the concept Defendant relevancy. contends that the “sexual motive” theory militates an against inference of a stealthy He also that the evidence approach. argues of premortem beatings tends to establish that the did not come perpetrator stealth, upon victims since in such a scenario he could have shot at least one of his victims at close before the victims were range aware of presence without risking physical confrontation. These arguments, irrational, while not are not the only ones plausible supported by evidence; fall they short of the relevance negating of defendant’s ability Furthermore, sneak on up since the people. “stalk” did not reflect testimony any violent propensities, trial court could properly conclude that its Code, probative value outweighed (Evid. 352.) any prejudice. § Defendant also argues that the “stalk” testimony only showed had a disposition to at play sneaking and thus was character up people, 1101, evidence under (a). inadmissible Evidence Code section subdivision trial, He did not urge this ground (People so it is waived. v. Benson 754, 52 Cal.3d 330].) Cal.Rptr. 802 P.2d Were we to reach the merits, we would conclude that his is not well taken. The “stalk” point evidence demonstrated that defendant had the ability to the victims. surprise Code, (Evid. (b) subd. § bar to admission of other-act evidence [no when relevant to some prove fact other than to commit such an disposition act].) The manner in which the killer came into contact with the victims was unknown; that defendant was capable doing so without their awareness was certainly relevant to show opportunity. Admission of the evidence was under proper Evidence Code section (b). subdivision b. Writings concerning firearms.
The search of defendant’s Rainbow Village and his space automobile yielded, other among things, number of notebooks and sheets of paper containing handwritten references to various firearms and and a weapons, trial, pamphlet entitled “Tips Shooters.” During defense counsel sought *29 to exclude testimony by items, Detective Wolke regarding those arguing they were irrelevant to any disputed issue and unduly The trial prejudicial. court overruled the defense objection, reasoning that the items “did tend to show a preoccupation with and that weapons would be some evidence that he would be very if, to not unlikely have reported theft of his to the police [the rifle] fact, it had been stolen . . . .” The court weighed the evidence under section 352 of the Evidence Code and concluded there wouldn’t “certainly the confusing be of undue of time nor of any problem any consumption any I I undue think it has issues or the don’t see misleading jury. any prejudice. relevance, preoccupation some and the district offer is to attorney’s he did testified why Following regarding not it.” this Wolke report ruling, cross-examination, in the search. On Wolke gun-related items found car, including other written materials defendant’s acknowledged finding bus, plans floor to house or of various automobiles specifications trucks, titles, recordings. and lists of movie and blues and camping gear, jazz
Defendant contends that Wolke’s had no relevance to testimony any issue and so was inadmissible under Evidence Code sections 210 disputed relevance, if argues, 350.10 Even it had some that marginal relevance was We outweighed disagree. for As by potential prejudice. found, trial court the evidence tended that defendant had a strong to show firearms, interest which in turn had to show that had his tendency some stolen, claimed, rifle been as he he theft would have to likely reported at the police earliest his claim of theft was opportunity. truthfulness of obviously fact of the determination of the case. disputed consequence to Code, (Evid. because, 210.) Defendant contends he had August that § informally mentioned the theft of the rifle numerous Rainbow Village to Wolke, residents as well as to his failure make an official report to theft until did August 20 not tend to claim theft was false. prove We do not A agree. the difference jury might merely consider between mentioning the theft to or to a an neighbors police investigator during interview, hand, on-scene on one to the station to make a going police other, formal report, on the as on the truth of the claim. bearing significantly Defendant labels prosecution’s theory relevancy “disingenuous” and “a false and artificial construction.” He contends that the reason he was loathe initially to report theft of his rifle an he was that is ex-felon and believed it was for illegal an ex-felon to possess such a and that the weapon, case; therefore, trial court well knew this was the he urges, it was unfair to allow the prosecutor to use his failure to make a discredit prompt report his claim of theft. But defendant did not raise this of his argument support Moreover, motion to exclude the evidence. the trial court could reasonably conclude that defendant’s mistaken belief as to his liability possession the rifle did not negate the relevancy of his failure to make a official prompt report, since he had spoken residents and to Wolke informally village “ evidence, 10Evidence Code section 210 provides as follows: ‘Relevant evidence’ means declarant, including evidence relevant credibility of a hearsay having any witness or tendency in prove reason to disprove any disputed consequence fact that is of to the determination of the action.” Evidence Code section provides except evidence is admissible relevant “[n]o evidence.” *30 about the theft permitted before he learned that ex-felons are to own alleged rifles.
Even if the inference that interest in would have led defendant’s firearms him theft was tenuous to a determination of report support too under Evidence Code section the firearm evidence carried no relevancy First, knew defendant owned potential prejudice. jury already that Second, in powerful rifle. an interest shared by many firearms—one law-abiding citizens—does not a violent character. necessarily imply
Thus, error, even if of the evidence was reversal is admission unwarranted.11 Testimony
c. parents victims’ identification premortem photographs. Kniffin, At the of the and David beginning guilt Patricia Gioia phase, mother Mary’s Greg’s briefly father testified as to how the respectively, in victims came be In the testimony, California. course of their each child, life, identified a in his or her taken which was admitted photograph into evidence. stand,
Before Gioia and Kniffin Mrs. Mr. took the defense counsel ob jected to admission of their He it was irrelevant testimony. contended because the why victims’ identities were not and the reasons disputed they were at Village Rainbow were immaterial. He also that the urged testimony emotion, was to excite the apt jury’s and thus was passions, sympathy, The trial overruled in potentially prejudicial. court Ms objections, concluding victims, essence that the testimony was relevant to differentiate identify residents, them from other Rainbow were Village why they establish there. The court also noted that the would not be to answer parents permitted erred, questions evoking sympathy. Defendant contends the court Mm due denying Ms a fair process trial. right enror, again 11Defendant in prejudice, raises this context claim of and denial of due his process in the admission Having admission of the “stalk” in the evidence. found no error firearms, either the testimony “stalk” or the evidence of defendant’s interest we decline to event, find error in their any challenged combined admission. In admission of the evidence any harmless under standard light testimony engaged had target practice and fired a had shot in the of an a few hours direction inhabited vehicle before the murders. Defendant complains also evidence of interest in firearms reflected his choice of reading materials and its admission implicated rights therefore his First under the Amendment federal He cites People Hovey Cal.Rptr. Constitution. Cal.3d 543 776], P.2d we noted which that “trial courts should exercise before great admitting caution material, evidence of a private reading defendant’s especially where relevance of such slight.” (Id. 576.) material to the in the p. issues case is at did not Defendant raise this issue trial, Code, (Evid. 353.) so we do not consider it §
523 in Rainbow the victims came to be Testimony staying how regarding the crimes. of the circumstances of Village helped complete picture in did not not obviate identity dispute Defense counsel’s comment that was the fact that the Additionally, the need to such a to the present picture jury. rather than residents of Rainbow long-term victims were transient visitors was in evidence that defendant Village significant connection with the it was from the water. identify Mary body pulled able Gioia’s before was, therefore, that certain admitted. Defendant contends testimony properly baker, that her (that details was a talented provided by parents Mary her of mother was last letter when the called to inform reading Mary’s police death, divorce) could Mary’s had been Greg depressed by parents’ ¿hose serve as an We details could not only agree emotional appeal. crime, add are properly to the of the circumstances of but jury’s image brief, that the defendant cites could have unpersuaded remarks spontaneous him. Nor can we that the defendant prejudiced say by was prejudiced reference, mere prosecutor’s to the fact that Patricia closing argument, Gioia and David Kniffin had testified their children’s back- regarding grounds.
Similarly, admission of the and premortem Mary Greg of photographs not, believe, could we (People have v. prejudiced any way. 932, 112, (1991) 214]; Ashmus 54 Cal.3d People 820 P.2d Cal.Rptr.2d [2 480, (1988) 803].) v. Kimble 44 Cal.3d 749 P.2d Cal.Rptr. [244 They to be ten-inch appear eight- of color enlargements ordinary snap- shots, not calculated particularly (People Thompson to elicit sympathy 45 Cal.3d 37]) Cal.Rptr. unlikely 753 P.2d have made an emotional on the impact over and above that unavoidably present murder capital nature prosecution. Despite circumstantial evidence, this case is not so close that admission of the photographs tainted the trial with unfairness. teeth,
d. post Admission mortem photographs, slides and fragments. bone Over defense counsel’s objection, trial court admitted into evidence various color photographs and slides depicting condition of Mary’s Greg’s evidence, bodies and their wounds. The trial court also allowed over objection, teeth, fragments of bone and from presumably Mary’s body, found at the crime scene. Defendant contends this evidence was highly inflammatory cumulative to other evidence the same establishing facts. Its prejudicial effect therefore substantially outweighed its probative value, contends, and its admission constituted an abuse of discretion under Evidence Code section 352. Defendant claims also that admission
the evidence violated his due under the federal process rights Constitution. *32 We find abuse neither of discretion nor of due deprivation process.
Defendant does not contest the of the and slides. relevancy photographs the nature Clearly, they clarify served Dr. Iocco’s and testimony regarding 749, (1988) (People location of the wounds. v. Coleman 46 Cal.3d 776 [251 83, 349, 1260]; P.2d 8 Cal.3d Cal.Rptr. People Murphy (1972) 759 v. 365 138, Moreover, 594].) P.2d tended to show that the Cal.Rptr. they [105 murder could have Their weapon been a rifle. of high-powered depictions contact were press (People wounds also relevant to v. premeditation. 1011, 643, (1988) 103].) 46 Cal.3d 761 P.2d Cal.Rptr. [251 Griffin Defendant that the trial court did not state that the complains expressly evidence “necessary” tire pathologist’s enable understand He testimony. cites no would a statement. Con- authority require that such asserts, trary to what defendant did the fact that the defense not contradict either of did not make the testimony Inspector Richardson or Dr. Iocco Thus, and slides the evidence photographs superfluous merely cumulative. possessed probative considerable value.
Although some of the we slides—which have viewed— photographs were gruesome the trial con- extremely reasonably court unpleasant, cluded that their did potential not value. prejudice outweigh probative their Moreover, the transcript hearing objections defense counsel’s to the reveals photographs that the trial court care duplicative took to exclude so, infer, we pictures, and was aware of its exclude cumulative duty to evidence. We find no abuse of discretion admission of photographs, no consequently denial of due process.
We likewise find no
in the
the teeth
error
admission of
and bone
In
fragments.
addition to corroborating the
Alvin Parker and
testimony of
scene,
that
Inspector Wolke
this evidence was found at the crime
admission of the fragments clarified the
Dr. Iocco.
testimony
Although
of
this type of evidence is grim and
it
that
shocking,
is not for
reason alone
subject
(Dutton
to exclusion.
(Del. 1982)
A.2d
State
138-139
se,
not inadmissible
[bones
per
although
shocking
gruesome; portions of
homicide
admitted];
victim’s vertebrae
State
properly
see also
v. Sexton
1986) 724
(Tenn.Crim.App.
S.W.2d
fragments
373-374
of homi
[skull
admitted,
cide victim properly
although cause of death
as relevant
stipulated,
to nature and
of
type
suffered
victim
as
injury
as well
to show “lead
splatters” on skull consistent with infliction of
by high-powered
wound
rifle];
State
v. Eason
3. Prosecutorial misconduct. expert’s testimony. Argument regarding
a. firearms improperly Defendant that four instances the argues prosecutor Richardson, firearms argued prosecution’s testimony Inspector rifle. high-powered established that victims were killed with a expert, both inflicted fatal Greg’s No an as to the expert gave opinion type weapon challenged margin wound. We relevant reproduce portions *33 argument.12 was to the stand. He was a firearms Inspector Richardson called 12“[The Prosecutor:] enforcement, expert, years you some 35 in law and as now from the ballistics of a .44 know
Magnum produced gruesome rifle it had to be a those wounds to both victims. A rifle which handgun simply got has not to do such.” power off, large you “First we know that both a rifle if believe by victims were murdered caliber Richardson, testimony Inspector the of the who has been in law year expert firearms long. any your enforcement that Is there doubt a was not the murder in mind that rifle ballistics, weapon? something You look at the and I believe he it was like 741 foot said pounds at the explosive muzzle and that is sufficient to cause the force. you got “And explosion testimony produced some of the which the from Doctor Iocco gruesome injuries you really any explanation to both victims. Do have other that it was a .22, certainly rifle? It a wasn’t that was for sure. What do we know if we have both victims by murdered a rifle?” “People’s picture showing particular number 26-C is a the the of that bore or muzzle weapon. Take a look at picture Mary entry you the Gioia and her wound and I think will understand only bringing that not have we proven weapon capable that it was at least a California, rifle, down a legally large deer press a caliber deer but it was also a contact wound. And obviously it had to be a explosion respective rifle due to the on the face and neck area of both victims.” “Now, we testimony know from only the of Doctor Iocco that not were the victims rifle, murdered a press with contact by high powered testimony by Inspector wound a further Richardson which caused a explosion, they savagely they tremendous were beaten before were murdered.” witness, “Here typical is one of the arguments defense concerning prosecution and it all, concerned Inspector Richardson. First of Inspector testimony, according Richardson’s counsel], Mr. Chaffee prove produced injuries. [defense doesn’t it was a rifle which However, but, shouldn’t, you if feel that it way you does—and there’s no because his testimony is prove uncontroverted—it doesn’t it was defendant’s rifle which murdered the you victims, victims. But if think it was defendant’s rifle that was used to murder it doesn’t prove that pulled trigger. all, Second, analogy “That is they’re correct First of conceding you not even it is a rifle. if rifle, defendant’s, think may it is a it be defendant’s you rifle. And if do believe it is the it doesn’t prove Ralph pulled International Thomas trigger. That’s true. But the bottom line is Richardson wasn’t testify trigger. called to court to pulled that the defendant He expert was an witness that high powered produced testified it was a rifle that the massive injuries on Greg Kniffin and Mary you Gioia that will see later on and that is it. He not prove guilt offered to say trying prove guilt innocence. It is not that we we are through an expert witness saying injuries by could be only produced rifle.” Our reading argument us that the did not persuades prosecutor engage misconduct All mischaracterizing testimony. Richardson’s but one of the are in challenged comments inferences from Richard actuality such, son’s and the nature of the fatal As testimony explosive wounds. they are within the range permissible has argument. prosecutor “[T]he wide-ranging right to discuss case He has the closing argument. right to fully state his views as to what the evidence shows and to whatever urge conclusions deems proper. counsel not Opposing may complain appeal if the reasoning faulty is or the conclusions are illogical because these are 262, matters for the jury (People (1990) determine.” v. Lewis 50 Cal.3d 834, 892]; 786 P.2d Cal.Rptr. People (1968) [266 v. Beivelman 70 Cal.2d 60, 913], 76-77 Cal.Rptr. 447 P.2d overruled on other grounds [73 People v. Green 468].) 27 Cal.3d 33-34 P.2d Cal.Rptr. The prosecutor explicitly acknowledged that the defense was disput ing whether Richardson’s that a rifle killed testimony proved both victims. Moreover, at the outset of both the initial and final of his phases closing argument, the prosecutor emphasized that statements of counsel are not evidence, and the court so instructed the both at the start of the trial and *34 just prior to deliberations. We do not believe the have jury could been confused the prosecutor’s inferences.
In one instance did only the state prosecutor that Richard- unequivocally son testified that a rifle killed in both victims. Taken context an attempt as to rifle, counter defense counsel’s that the argument murder was not a weapon the remark does not (See to have intended appear People been to deceive. v. Haskett, 841, supra, 30 Cal.3d 866.) We do not believe that the jury, evidence, repeatedly having been advised that statements of counsel are not would have been misled. If this isolated remark can held be to be misconduct (see 208, People (1979) 141, v. Bolton 23 Cal.3d 213-214 589 Cal.Rptr. [152 396]), P.2d it is not of constitutional magnitude and does not warrant reversal.
b. Sexual motive inference.
Next, defendant complains that the
in
prosecutor engaged miscon
duct
evidence,
the
by inviting
speculate, without
that
supporting
Mary’s murder was sexually motivated.
that the
Noting
fastener and zipper
undone,
of Mary’s shorts were
the prosecutor
that the state of her
argued
clothing
she
suggested
was beaten and murdered for resisting defendant’s
sexual advances.
on
Relying
People
(1957)
v. Craig
In whether the this court considered attempted in or the commission degree first murder felony perpetrated 318.) The at supra, p. 49 Cal.2d (People Craig, of a v. rape. commission car, slightly apart, under a legs spread of the victim was found lying body Each of those (or and panties. in a raincoat over a nightgown slip) clothed (Id. 316.) at p. front of the body. had been tom open, exposing garments prove did not suffice to and certain other evidence We concluded that this inor in to commit attempt rape was committed killing Granados, supra, 319.) People in v. (Id. Similarly, of at rape. p. commission was found with in victim body 13-year-old Cal.2d which the of support the evidence failed to her we held that clothing disarray, in the or perpetration first murder committed degree felony conviction for (Id. 497.) 288. at p. of a violation of section attempted perpetration of high reflect the burden holdings Craig prosecution’s and Granados Guerrero, People supra, each element of offense. proof any charged could uncharged evidence an earlier rape Cal.3d dealt with whether (Id. at and intent. identity p. be introduced a murder prosecution prove irrelevant and cumu 722.) We concluded that the proffered testimony activity lative lack evidence of sexual on issue of identity, testimony rendered the rape between defendant and the murder victim 725-727.) cases (Id. likewise inadmissible show intent. None of the pp. cites, therefore, the requested is relevant to the issue here: whether evidence, inference of some motive basis possible sexual found some surmise, or was instead based mere suspicion, imagination, speculation, 1, 21 conjecture, guesswork. (People v. Morris 46 Cal.3d 843].) find the inference far from Cal.Rptr. Although 756 P.2d we *35 the In comments did constitute misconduct. compelling, prosecutor’s not deed, Granados, in People supra, Cal.2d we a claim of rejected misconduct in the the to infer that the prosecutor’s argument asking jury murder occurred in the course of to commit a committing or attempting violation of jury section that the trial court left to the holding properly (49 the determination whether the inference was reasonable. requested 495.) Cal.2d at Defendant that the in Granados more p. complains facts in substantially an inference the facts supported of sexual motivation than do this case. We but remain agree, persuaded that the comments prosecutor’s here had a sufficient basis. evidentiary
c. Argument regarding “stalking” evidence. In closing argument, the prosecutor reminded the of the “stalk” jury defendant, testimony them to infer urged that a used to person sneaking up people without their in knowledge, close to the victims that got way.
Defendant that because the did urges evidence not establish that victims, argument he or else the anyone prosecutor’s “stalked” the com- the trial earlier error in the We dis- pounded admitting testimony. court’s concluded, we have agree. As the was admitted and the testimony properly was entitled invite the to draw the inference. prosecutor to desired Defendant that the an of a ferocious complains prosecutor conjured up image nightstalker effort evil an to strike terror hearts. We jurors’ search record any vain for such rhetoric.13 inflammatory on Cercy’s credibility. Attacks
d. that Defendant resorted to an argues prosecutor inappropriate tactic to destroy credibility Cercy. Cercy’s defense witness Vivian believed, if third an unknown as murderer. testimony, pointed person Johnson, however, Vincent him seen nothing testified that told she had Cercy murders, on the but lied night request Harry at the of her boyfriend, denied Cercy asking Shorman. Shorman to ask but police protection, for he admitted that once mentioned it to them in her also testified presence. She that wanted Shorman her to with him in his bus at but stay Village, Rainbow so, that she do small The unwilling prosecutor was two children. having her argued Cercy’s testimony that was invented in order a material to make witness, that she be vicinity so would at state kept expense Shorman’s convenience. Defendant that this argument represented asserts sound, mere We speculation. disagree. given inference was logically Johnson’s and Cercy’s testimony. portions 13Therelevant prosecutor’s arguments final are as follows: this, yourself “Ask how get seeing could someone close to the two victims their without rifle, rifle, person get with huh? could to those two somebody How have close
people being Tracy without seen? Scarborough. Remember the words of Thomas Medlin and What game was a favorite of the defendant: stalk. Mr. Chaffee didn’t think [defense counsel] anything too important, wipe away kind of because that one from the evidence important. doesn’t think that is “Well, defendant, rifle, explain wouldn’t that got how with a close to them? Give me explanation. another reasonable Answer that. there, rifle, “The are people up two down and somebody seeing comes with a without them it, or hearing how is that to be? How is that to it used somebody playing be? Or is who is *36 sneaking up stalk and people without it? knowing their “Now that an you is inference to be drawn and Can that is a reasonable inference. tell me mind, any your other? Search intelligence you people search all the tell me have and another that, you inference can draw and you from I think the know answer.” unreasonable, “Just as possibility big setting the of the up younger absent brother the is kid so argument is the defense stranger that a stole only broke into the defendant’s car and the rifle and not the case and and just happened ammunition to have two with him rounds when went and Mary down murdered and Greg, and to be two of the happened [mc] rounds correct there, they ammunition and knew how hand load gun clip the because the was not and dark, knew how to do it in the and used it to Mary Greg, stalking murder after them.” “Who else knew how seeing to stalk without people their him?"
529 remark that the prosecutor’s as misconduct Defendant also labels town, probably be [Cercy,] you would out of thing you’re “It is a good the weight out correctly points Defendant charged perjury.” with representative, official People’s that the of the as the prosecutor, comments 650, 677-678 111 (1952) Cal.App.2d v. Talle jury. (People with the carry a not interject 633].) may It true that the prosecutor P.2d is also [245 case, the based on to a belief in the merits of the as opposed belief personal 839, (1971) 5 Cal.3d 848 (People [97 at v. Bain evidence trial. produced 94, 684, 564]; (1981) 121 People Cal.App.3d 489 P.2d v. Johnson Cal.Rptr. However, 8].) tacitly acknowledges, as defendant also 102 Cal.Rptr. [175 on the of witnesses based credibility on the is entitled comment prosecutor 660, (1988) Cal.3d 702 Babbitt (See People evidence at trial. v. adduced 69, 253].) testimony as perju He characterize may 755 P.2d Cal.Rptr. [248 if ‘lie’ and are ‘perjury’ warrants. “The words rious the evidence so is false and there testimony, describe commonly wilfully used to expressions discussing when no reason a must to circumlocutions prosecutor resort why (1966) 246 v. (People this but Garrison pertinent subject.” distasteful 731]; Ellis also Cal.App.2d People see Cal.Rptr. [54 385, 421 reference witness [single Cal.2d P.2d Cal.Rptr. 393] himself, be jury, may of evidence before having based on perjured analysis if Cercy that that unobjectionable].) saying Defendant argues beyond were went charged town she would be with perjury, prosecutor weight of his an on the evidence and expressing opinion placed based We had Cercy perjury. office behind his conclusion committed personal that are in the remark unpersuaded, given improbable find no impropriety her in the nature of her untruthfulness indications testimony record. in misconduct
Defendant also that the complains prosecutor engaged arguing that Vivian “contrived.” Specifically, was Cercy’s testimony argues that the defense was prosecutor implied responsi- twice that counsel insists, ble for un- the contrived defendant testimony.14 implication, This not fairly attorney did impugned Although defense counsel’s integrity. Mary light top knows it was a the dark on, But when the this testimony dark There is no arguing 14In Vivian. It is a dark covering Gioia, one instance that with these covering on. top that in the way, wearing [1] covering truth was there. light top, Well, no good thing over the people? way early let's top because was she H] matter comes hours of look when white of a Come you’re *37 Now, fashion, light blouse, Harry wearing on. Come August I out of suppose cites, color. they pull pulled out. Shorman told her. That’s how right? town, “No doubt She’s light top. Mr. Chaffee on, way up, she prosecutor her Now do you would ladies got saw a out of the water. What a dark She when she woman, you Cercey’s [defense couldn’t argued probably gentlemen. top think on. whom she was, that [sic] counsel] Mary have seen Come be quote charged Cercy mind Gioia was body was on, later would have only it that contrived Vivian. not with because learned reason she dumpster visible is floating. wearing perjury. Come had a was you she her 530
object, defendant appellate contends that we should not deem review He if waived. contends that runs an excessive risk he always defense counsel he objects to him since will prosecutorial argument criticizing personally, if lose the credibility objection. court overrules the We need not address this whole, contention. Reading prosecutor’s closing as a we find it argument clear that the remarks sufficiently general complained-of thrust was Shorman, that Cercy testified as she did at the of her boyfriend, Harry behest not that defense counsel concocted a to tell. To the extent of Cercy story statements, any in the he ambiguity prosecutor’s we do not infer that lightly intended them to have meaning, their most or that would damaging other, draw that meaning from less available. damaging interpretations 637, 431, 439, (Donnelly (1974) v. 416 L.Ed.2d U.S. 647 [40 DeChristoforo 1868].) 94 S.Ct. defense counsel’s failure to reflected his own Perhaps object that influence on perception prosecutor referring was to Shorman’s Cercy event, In voicing personal not attack. we do not believe that the any questionable more prosecutor’s statements were so as to egregious (Id. 642-643; People Harris deprive (1989) defendant of a fair at v. trial. pp. 1047, 352, 47 Cal.3d 619].) 1084 767 P.2d Cal.Rptr. [255 Adequacy trial counsel. 4. in (1)
Defendant contends his failing object counsel was ineffective to instances of (2) misconduct prosecutor’s closing arguments failing argue insufficiency of the evidence to murder in the first establish degree.
Familiar our this principles govern review of issue. burden of a claim of (People proving inadequate trial is assistance v. appellant. 412, Pope (1979) 23 Cal.3d 732, 859, 590 P.2d Cal.Rptr. [152 1].) He A.L.R.4th must show that counsel’s fell below an representation objective standard of reasonableness under prevailing norms. professional i.e., he must Additionally, establish prejudice, probability reasonable different, absent counsel’s errors unprofessional the result would have been (People before can obtain v. Ledesma (1987) relief. Cal.3d 839]; 216-218 Washington Strickland Cal.Rptr. [233 729 P.2d see 674, 693-694, 466 U.S. 2052].) 687-688 L.Ed.2d S.Ct. “ evaluation, ‘Because of the difficulties inherent in making the a court must think, just many another little How get you mistake. mistakes does the defense to make before perhaps they’re realize contriving something?” cites, In the other instance that defendant prosecutor stated: “The defense has been ridiculous, best, contrived. The testimony Cercey of Vivian is worst.” perjurious at [sic] On other during closing argument, occasions the prosecutor Cercy’s testimony said that contrived, but these statements were made in a context implicitly explicitly to Harry referred getting Shorman’s role in Cercy testify.
531 wide falls the within that counsel’s conduct strong a indulge presumption is, assistance; must the defendant that of range professional reasonable circumstances, that, challenged under the the the overcome presumption ’ ” (People Lewis trial v. strategy.” be sound “might action considered 262, 892], v. Strickland quoting P.2d Cal.Rptr. 50 Cal.3d 288 786 [266 694-695].) L.Ed.2d at Washington, supra, p. pp. 466 U.S. [80 to objected that should have As to defendant’s claim his counsel that concluded above closing we prosecutor’s argument, portions It follows did in misconduct. any prejudicial not prosecutor engage in Even as to objection. ineffective no making defense counsel was not in testi Richardson’s Inspector one instance which the misstated prosecutor in in com ambiguous which the mony few instances prosecutor’s might integrity, ments have taken as an defense counsel’s been attack on object A mere failure to object failure to did ineffectiveness. approach not Ghent (People seldom argument incompetence establishes counsel’s 1250]); case is no (1987) 43 Cal.3d P.2d this Cal.Rptr. exception.
Defendant faults defense for not more strenu arguing also counsel murder but ously defendant’s rifle was not to be the proven weapon, establishes neither that the counsel did fell below argument present standard reasonableness that there is a reasonable objective probabil nor a argument different had made the ity outcome counsel suggests.
As to argued defendant’s contention that his counsel should have that the evidence in the first finding was insufficient to a murder support we degree, likewise find no ineffective of counsel. Consistent assistance killer, closing with the defense in that defendant was defense counsel not argument argued He empha defendant’s innocence and reasonable doubt. sized gaps the inconsis sought explain evidence and prosecution’s tencies in Vivian defendant’s statements and the weaknesses pretrial Cercy’s testimony. Defendant that his was inef nevertheless counsel urges killer, in failing fective argue alternatively that if defendant evidence did not finding of murder the first support degree. argue
Failure to an alternative is unreasonable as a objectively not theory matter of law. Defendant has not overcome the that counsel’s presumption omission could be considered sound since the strategy, inconsistency trial inherent arguing both innocence lack of deliberation premeditation or would be apparent to the and would draw comment. likely prosecutorial two arguments That the are not does not vitiate absolutely incompatible *39 Thus, choice to make one or choose to might reasonably the other. counsel did, the advance claim of in a motion evidentiary insufficiency, pretrial as to dismiss under section in a of under judgment motion for acquittal case, section 1118.1 after and in a brought the close of the prosecution’s the postpenalty-phase degree motion reduce the of crime to the second degree, not make the to the argument jury. conclude, however, if
Even we were to unreasonably trial counsel murder, failed to lack we argue of of first would find no culpability degree prejudice to defendant. The was first jury degree instructed on murder fully and second murder. it degree That could the two is clear from its distinguish of Gioia) verdicts second on I and first degree (Mary degree murder count Kniffin). murder on II (Greg count of length deliberations the question degree of the homicides15 indicates focused on jury the issue.
5. Cumulative Error.
Defendant that the of in the urges guilt cumulative effect the errors phase of mandates reversal his conviction even if no error so. We single does which, have as identified one possible only during error instance closing argument, misstated testi prosecutor Richardson’s Inspector the few mony, instances which his have ambiguous might comments been taken as an attack on defense counsel’s several remarks integrity, Gioia Patricia and David Kniffin that needed in what strayed beyond jury order form picture of circumstances of the Neither individ crimes. ually nor do these together instances warrant reversal. Penalty
II. Phase A. Evidence.
1. Prosecution evidence. a. Prior activity criminal involving or threat force offorce 190.3,
(§ (b)). factor officer, 13, 1975, Cawley, Warren a correctional testified that on February he was working the institutional room at Deuel Vocational visiting (the 15On deliberations), June day guidance third of for jury asked on the distinction between first and second degree jury day. murder. The to reach a verdict that failed On again June the jury asked for degrees instruction on the homicide. The returned day next and deliberated p.m., until 4:05 when it reached its verdict. Institute, regulations rules and enforcing where he was responsible from a visit receiving On that day, Corrections. Department an regulations, Under departmental low-cut dress. wearing a woman the end beginning at the hug to kiss and and a visitor are allowed inmate table, fondle but not to to hold hands above are They permitted of a visit. female visitor defendant’s that when each other. testified Cawley or embrace *40 entered, Cawley and kiss her. her and breasts legs to fondle defendant started briefly, stop Defendant would defendant this conduct. stop told to repeatedly The to his area. back Cawley got the woman as soon as fondling but resume walked up Defendant then a few minutes. woman left the room for I’m said, “Motherfucker, me with fucking if don’t you stop and Cawley not but did angry, appeared kill within the week.” Defendant going you visiting the removed from Defendant was grab Cawley. move to strike or incident, for which this regarding wrote a rules violation Cawley up room. in isolation. days defendant received 10 9, 1977, he a adminis- program on April
James testified that Ingram the 2 he was Quentin supervising at San At on that date p.m. trator Prison. line and the food a meal Defendant came through service of to inmates. he had told defendant asked for additional Jell-O. and another officer Ingram his Defendant threw get. received his ration and that was all he was going him Defendant received no punish- back at on the tray Ingram, striking hip. ment, in but the incident was noted record. prison Kesner, officer, March that at on p.m. a correctional testified
Raymond 15, 1978, Quentin’s mess hall. he was the meal at San midday supervising fed, the B entered As the Maximum were about to be prisoners at an room. At that time scheduled to eat defendant was a mainline prisoner, earlier him he would have to time. Kesner informed that lunch was over and attorney leave. he had had an Defendant said he was late for lunch because Kesner visit. Defendant left the and reentered another door. through room line, him the serving told to stand back. Defendant a came to grabbed tray, and and ordered conveyor himself to some Kesner helped pie. stopped Defendant let go defendant to him the A match give tray. tugging developed. fired a of the and struck Kesner in the his fist. The officer tray jaw gun with and regarding shot defendant froze. Kesner wrote a of rules violation report isolation days’ incident. defendant was Following report, given and days lost 30 of conduct credits. 190.3, (c)). (§
b. felony Prior convictions factor The trial court convic- judicial felony took notice of defendant’s prior 24, 1974, tions. On defendant was convicted July Monterey County, 1, 1974, two one On rape counts count of armed November robbery. in Alameda County, defendant was convicted of two counts of kidnapping, (a), two counts of two rape, violating counts of section subdivision two counts of and one count found true robbery, sodomy. that case jury (a that defendant with allegations deadly handgun) was armed weapon offenses, during weapon committing commission used robberies, acted in kidnappings, rapes, committing concert rapes sodomy.
2. evidence. Defense Vivian Cercy and testified at the The defense appeared penalty phase. hoped might, her in viewing assess her person, credibility differently than it at the had and therefore entertain guilt phase lingering *41 doubt as to defendant’s guilt.
Cercy essentially testimony given she had at the repeated preliminary She denied she hearing. that was on the 15 or the night intoxicated August early morning August hours of and denied Wolke had had telling she drink; bit a to said quite she she had drunk four five in the hours or beers Wolke, since on the When noon 15th. she talked with she did know that not a body second had been recovered from the She also denied bay. telling Vincent Johnson had that she not seen on murders. anything night testified she
Cercy that had read little of her very transcript preliminary hearing testimony, had it thrown it She ripped up away. counsel, testified that she had not discussed the case much with very defense but admitted on further examination she had met with several counsel times and revisited the crime scene with them.
At the preliminary hearing, did not Cercy know whether there was a moon murders; trial, on the night of the she said there was no moon. Perkins, lieutenant, Marshall retired a correctional he testified that knew Quentin. defendant from to 1981 at San In in 1978 defendant was B Maximum he was custody. Eventually assigned to the mainline and was given in job bakery, where only reliable inmates not considered to be a that, staff danger to were allowed to work. Perkins his testified knowl- jn edge, defendant was never involved or prison contraband activities. gangs retired, After he Perkins tree operated maintenance business. After defend- ant’s release from prison, Perkins him occasionally hired from the cash labor office work in his business. Defendant had in guest been a Perkins’s house and shared meals with Perkins wife. Henderson, mother, was born that defendant Hattie testified
Defendant’s Texas, Brenham, surviving five in He was one of 1954. in small town of old was four years defendant from her husband when children. She separated and his sister Because defendant with her children to Houston. and moved Mrs. separation, to their difficulty adjusting parents’ were having Teresa months. eight for six or to live with their father Henderson sent them back Thereafter, siblings their and the rest of resided with their mother they and took as a maid Mrs. Henderson worked living, Houston. To earn a washing ironing. He was a student good through grade.
Defendant attended school the sixth for another saving Once he received an award scouting. and was involved home. he ran from away When defendant was drowning. from boy Houston, Henderson him in Mrs. Tucson. On his return family located few After a like a boys’ camp. defendant to live a home sent Thereafter, home, with his mother’s ran again away. months at the lived his own. acquiescence, Allen, sister, raise her mother helped
Emma defendant’s testified that she Defendant was not a discipline the children while her mother was working. Allen a commendation receiving Ms. remembered defendant’s problem. did well adjust that defendant not saving a from She testified boy drowning. *42 life in Houston and missed their father. city B. Issues. impact argument.
1. Victim
penalty phase
Defendant contends that
portions
prosecutor’s
(1987)
were
under
During of this both Booth and Gathers were pendency appeal largely U.S. _ [115 111 (Payne overruled. v. Tennessee 501 L.Ed.2d 2597].) S.Ct. We have since held that the inflicted the defendant— injury by including the of the crime impact on of the victim—is one of family crime, circumstances of the evidence of which is admissible under section 190.3, 833-836; Edwards, (a). factor see (People supra, v. 54 Cal.3d at pp. Haskett,
People supra, [suffering v. 863-864 of victim during Cal.3d pp. brutal perpetration of crimes held of evidence and proper subject argument crime]; as of People Douglas (1990) circumstance 50 Cal.3d 536-537 v. brief 788 P.2d comments Cal.Rptr. [permitting prosecutor’s 640] Benson, families]; People on effect of defendant’s crimes victims’ v. on supra, 52 at pp. argument Cal.3d 795-797 [permitting prosecutorial apparent suffering victims of defendant’s crimes when victims’ prior 190.3, testimony (b) (“criminal had been admitted under activity by factor § the defendant which involved force or violence the use use of attempted .”)](cid:127)) . (cid:127)
In told closing argument, “your prosecutor jury sympathies should go to all victims of the defendant’s past present depraved . . . .” The court trial overruled defense counsel’s that the objection, stating prosecutor “make could reasonable comment on the victims the concern and the family prosecutor argument victim’s . . . .” continued [sic] to “have also for urging Mary the families Gioia and sympathy Kniffin, Greg their never because lives are to be same.” These going Edwards, brief were (People supra, exhortations not v. 54 Cal.3d improper. 835; Benson, 795-797; at v. p. People People Cal.3d at supra, pp. Nor, Douglas, supra, 537.) Cal.3d at p. clearly, improper was it to express that the victims did hope not when defendant pain pulled experience trigger. urges
Defendant that the phase of Patricia Gioia and guilt testimony David Kniffin improperly affected the of his jury’s penalty. determination We concluded above that the Kniffin testimony of Mrs. Gioia and Mr. properly admitted establish certain circumstances of the crimes (specifi cally, how came Mary Greg to be Rainbow and that none Village) brief, the parents’ spontaneous remarks the victims’ concerning backgrounds *43 and other matters could have adversely affected the determination of jury’s his the guilt. Because jury was entitled to consider the parents’ testimony 190.3, insofar as it showed the (§ (a)), circumstances of the crimes factor the did not taint testimony its assessment. And the penalty remaining brief remarks were not so as to invite an irrational or inflammatory purely subjective the response by The jury. prosecutor, who did not refer to the parents’ guilt in phase testimony making his did penalty arguments, phase nothing to increase the likelihood such a response.
2. Prosecutorial misconduct. Defendant identifies several of the portions prosecutor’s closing penalty phase as argument misconduct. defense coun
First, accused improperly he contends the prosecutor the forth We set testimony. phase Vivian contriving Cercy’s penalty sel of is the comments tenor of general in the margin.16 comments challenged try to may the prosecutor it is a truism that credibility, critical of but Cercy’s evidence, unworthy witness is that a strength jury, persuade are to be avoided testimony” locutions as “coached Although belief. such in this statements “coaching,” prosecutor’s there is no evidence of when to deprive sufficient level of misconduct prejudicial case did not reach the Amendments. under the and Fourteenth rights Eighth defendant of his by prosecutor’s that he was prejudiced Defendant next contends cancer,” murderer, murderous “mass rapist,” “perverted use of epithets closing during in defendant referring cancer” to “walking depraved defendant, as inasmuch the former label fit arguments. Strictly speaking, within The latter are epithets had been convicted of and two murders. rapes defend conduct on the range regarding egregious comment permissible 1195, Cal.Rptr. 1248-1249 (People Sully (1991) ant’s v. 53 Cal.3d part. [283 Moreover, in long adduced 163].) in of the evidence light 812 P.2d case, as to an emotional impact trial of this could not have carried such they rather than evidence. make it was rooted likely jury’s passion decision in misconduct engaged that the Finally, argues prosecutor likely pose to vote for death because defendant would urging However, it is not misconduct danger to the future. prison guards evidence a defendant’s future violence based on comment on potential (People Cal.Rptr. the record. Cal.3d 257-258 Adcox case, 906].) In to defendant’s 763 P.2d this several witnesses testified violent outbursts earlier Defendant during protests incarceration. Indeed, did his counsel coun these incidents not constitute serious crimes. tered the that defendant’s prosecutor’s by arguing length prison comments outbursts were treated as authorities and by prison minor infractions Quentin defendant was a citizen” San Defendant fails “good standards. establish misconduct. now, 16“Okay, prior testimony you let’s look at some of her that was read to from by facts preliminary hearing prove you testimony shaped and let’s that how indeed her gotten somebody guess might she had from we’ll never know or do want to who it have you been?” *44 “In any light night. November she doesn’t know if there’s moon out there that Enkerud testifies at the no Cercy penalty phase trial there was no moon and Miss at this knows there’s light tonight. yet
moon out She’s met the defense times and she now knows with team five illumination night provided that there was a moonless and the the city Berkeley hills Village. Rainbow just amazing. anybody.” That’s But she didn’t her case with discuss coached, “Any lingering penalty testimony, just doubt based on her should be cast phase stone, Commandments.” upon guilt the winds. His just is now etched in about like the Ten phase 3. guilt argument penalty phase on determination. Effect of During guilt phase argument, suggested, based on prosecutor condition of in Mary’s clothing, that she have been killed the course of might to resist trying defendant’s sexual advances. Before the penalty phase began, defense counsel moved in limine to bar the from this prosecutor arguing sexual motive to show under the theory rubric of attempted rape aggravating 190.3, (b), factor other (§ (b).)17 criminal defendant. factor The activity by trial court that agreed insufficient evidence of had been attempted rape (b) presented warrant a factor and further ruled argument that prose- cutor could not associate the possible sexual motive for murder with Mary’s defendant’s convictions. prior rape
Defendant argues ruling this came too late to avoid prejudice. He contends the jury likely, hearing of defendant’s prior rape convictions, to recall the sexual motive and consider argument improperly defendant’s alleged sexual attack on as an factor. We Mary aggravating disagree. “[ejvidence The trial court instructed the jury has been intro duced for the purpose of the defendant has committed other crim showing inal acts including battery, a officer—a including threatening police peace officer which involved the or use of force or violence express implied acts, or the threat of force or violence. Before you may consider criminal any case, of the criminal any acts as aggravating circumstance this must you satisfied, doubt, did, fact, first be a beyond reasonable that the defendant commit those acts. You may not consider evidence of criminal any any other acts anas aggravating circumstance.” This instruction clearly correctly conveyed to the jury (b), of their under scope determination factor points to nothing record that the misunder suggesting jury stood its We duty. are unpersuaded defendant’s that the speculation jury rendered an unreliable penalty determination due sexual prosecutor’s motive argument during the Even guilt phase. more speculative unper suasive is his assertion that the used the sexual motive jury argument to “corroborate” the penalty phase argument that defendant would pose danger to female prison if he guards were sentenced to life possi without bility of parole.
4. Trial responses court’s jury inquiries. deliberations, During its asked the trial court two questions indicating concern about the consequences of their determination penalty fact, 17Section requires the determining 190.3 trier of penalty, to take into account the factor, following “(b) if presence relevant: activity by or absence of criminal defendant which involved attempted the use or express use of force or violence or the implied threat to use force or violence.” *45 decision. Defendant reach a unanimous failure on their to part and of a Eighth inadequate were to protect the trial court’s answers contends that a fair trial. Amendment to right penalty of our aspects of appeal “a clarification the requested
The first question the through in a death can be and continue appealed decision as sentence of of life without possibility for Is a sentence judicial years, correct? system it irrevocable?” or is challenge essentially parole subject appeal also counsel, the trial and defense With the of both the agreement prosecutor matter what convicted of a crime no as “Anyone court follows: responded However, it a violation of the would be is has penalty given appellate rights. in determining juror’s rights to consider the defendant’s duty appellate in to concern yourself.” sentence this case. You’re not appropriate asked, the court by would be the action taken The second “What question in a decision?” The the event that the unable to reach unanimous jury is concern itself again court “That is not to consider or to replied, jury if at all make a decision with. You must effort to reach unanimous every possible.” that, that the
Defendant infers showed together, taken questions verdict, be might was concerned that if it not reach a jury could given might a sentence less life without of possibility parole than be released from the trial court someday argues, prison. Consequently, should have that their reach a verdict explained jurors inability could result in a not sentence less than life without of but possibility parole, in would result Defendant only acknowledges retrial of the penalty phase. 744, that our decisions such 45 Cal.3d People (1988) cases as v. Belmontes 126, conclusion, 310], 813-814 Cal.Rptr. 755 P.2d dictate a different [248 but contends that those decisions are error. He this case to analogizes jurors those which ask verdict of the trial court about effect of a not reason of held in guilty by It has been the latter of case insanity. type defendant is entitled to an instruction on the effect a verdict of not guilty by reason of insanity jury might because otherwise be fears swayed that a defendant (People on the basis of free. acquitted insanity gowill (1985) 750].) Dennis 1139-1140 Cal.App.3d Cal.Rptr. His [215 is find analogy unpersuasive. We no likelihood that the could have returned a death sentence because it feared he would receive a sentence less than life without not unani possibility parole they event could Moreover, mously agree. we believe an instruction kind defendant contends was would required jurors’ have diminished sense of duty to deliberate and to be to the ideas of their fellow open jurors. (People v. Rich 1114-1115 Cal.3d Cal.Rptr. *46 960].)18 P.2d give requested The trial court’s refusal to the instructions was not erroneous. reopen 5. examination Vivian to allow counsel to Refusal defense of
Cercy. her Vivian testified the observations on Cercy penalty regarding phase the the The in night testimony of murders. defense her would raise the hoped jurors’ minds a doubt which lingering guilt, might as to defendant’s be sufficient death to induce them not to recommend the She testified penalty. on cross-examination that she had had several with defense coun- meetings sel, but her had not proposed phase testimony great discussed penalty redirect, detail. On recalled the visiting she crime scene with recently defense counsel her with them. She discussing observations described her how visit to the had caused some of her scene her to alter previous testimony.
After of the Cercy testifying, finished before the close penalty phase evidence, the her The submitted several jury questions testimony.19 raised second of these the in-chambers collo- questions, pertinent portions it quy generated, are follows: as
“The Court: ‘The witness on first recalled today, cross-examination order the different recent think Attorney Cercy—“I encounters with we all Chaffee, agree means not is it she didn’t recall the Cercy”—how visiting site with him?’
“My reaction question, to that that is really question trying rehabilitate. It sounded like there’s mind jury’s confusion that needs to clarified, be but a as to whether be question should able to rehabilitate you her because the I jury question has her don’t think that regarding memory, 18There is no merit to defendant’s contention that this case that the fact arises under the Belmontes, death penalty People law a different requires conclusion. As we stated in supra, 45 Cal.3d at “We page 814: conclude [informing jury that such an instruction consequences of its reach a failure to unanimous penalty under death law verdict] would have potential unduly confusing misguiding jury in their proper role and function in the penalty process. juries determination are Penalty phase presently instructed that proper their task is to decide between a possibility sentence of death and life without parole. Any along further suggested instruction the lines could herein well serve to lessen or diminish obligation jurors’ eyes. fn. [Citations omitted.]” question 19The first expressed Cercy’s testimony confusion as to was whether that she was positioned in front of her after emptying permitted car defense was trash. The to recall Cercy to clarify point. question third why hearing Cercy’s asked testimony and how to the penalty it related or special circumstances. The trial court told the jury that question argument. would be addressed in final to present for the jury question ambit of a proper comes within the proper wanted to make an offer? you But said you *47 permission I the court’s would request Chaffee
“Mr. [defense counsel]: that testimony that. Because her about questions to and ask some reopen direct, not does her Mr. Anderson by prosecutor] was elicited from [the me Susan had with she has the sum total of all contacts constitute Walsh since she arrived here. us, other, be, or both of has seen one or the offer of would she
“My proof visits. many There have been first arrived here. every day almost since she first questioned “And I that her when she was omitting, do not believe Anderson, me with Susan Walsh and the fact that she went out to the site Mr. moment, date, was willful on a which I can’t even recall at the on particular her that like that. forgot anything or shows she or part be something you may
“The Court: That’s fine. And that’s that perhaps able to argue. is to allow them
“But the proper purpose allowing jury questions where there is that feel it is a anything something they question confusion or sometimes, it and ask that needed And if we both agree upon to be answered. irrelevant, we to let that be going or it is and we’re not question, say asked. allowed,
“Question number two is whether should be really you question because has some doubt to be allowed jury memory veracity, about to rehabilitate because of the jury raising question.
“And the And I court’s that is not the ruling, purpose jury questions. will not allow that to be asked or that to be covered.” question subject
Defense counsel to requested leeway clarify Cercy’s testimony, noting he omitted to ask asked questions for that on redirect. court purpose whether he did proposed Cercy visiting ask how was it she not recall counsel; site with he did any counsel said not. The court ruled that other would question be because that was the had improper, question asked.
Defendant contends that the trial court erred denying permission to reopen examination. He the trial must have Cercy’s judge asserts that
believed, He that he lacked discretion to do so. out erroneously, points Evidence recall Code section 778 the trial court discretion to gives general witness, without situations rehabilitation of a witness.20 excluding involving Defendant’s lacks merit. The trial remarks reflect not a belief point court’s that it lacked discretion to determination that the Cercy, recall but rather a for which counsel to recall her was Its purpose sought inappropriate. ruling exercise, abdication, was an not an of its discretion. This case is statutory People therefore Cal.2d 523 distinguishable from v. Raven 866], in P.2d which we held it recall a error to refuse a defense request witness order to a foundation for when the prosecution lay impeachment, trial court it believed was further cross-examination of *48 powerless permit (Id. 525-526.) the the witness unless its case. prosecution reopened pp. The court’s exercise of its defense testimony discretion was sound. counsel to elicit on recall—that she had had with proposed many meetings Indeed, counsel—would not have enhanced it could have credibility. Cercy’s cast further her doubt on claim that she did not discuss the case with counsel in any great extent. Nor would it have clarified the other inconsistencies her Defendant in testimony. ruling. fails to demonstrate error the trial court’s
6. stipulation counsel’s to delete instruction on intoxication Defense penalty considerations. from 190.3, (h) (factor (h)),
Section factor that the consider provides jury may factor, relevant, as a if mitigating time or not at the of the offense “[w]hether the capacity of the defendant to the or criminality of his conduct appreciate to conform his conduct to the of law was as a result requirements impaired defect, of mental disease or or the affects of intoxication.” Defense counsel stipulated (h) (and that of factor language factors) other be inapplicable deleted from the in jury instruction on factors for consideration determining 8.84.1; (Former penalty. 8.85.) CALJIC No. see now CALJIC No. Now, Prew, to the pointing of David and Jim testimony Bergman to his own extrajudicial statements he had drunk indicating alcohol smoked marijuana on evening defendant contends counsel killings, was incompetent making (h) and that the stipulation omission of factor language from the instruction prejudiced him. First,
We reject contention. in his defense penalty phase argument counsel urged to entertain a jury doubt of defendant’s lingering guilt. crimes, Counsel did not if argue that defendant did commit the his ability 20Evidence Code section provides giving 778 that a witness has been excused from “[a]fter action, further testimony in he cannot be may recalled without leave of the court. Leave granted be or withheld in the court’s discretion.’’ intoxication. due to his conduct was impaired criminality appreciate testified Moreover, No witness was lacking. evidence of intoxication witness testified murders. No before the that defendant intoxicated appeared alcohol drugs or large quantity of such a consumption to the himself, Defendant he was intoxicated. to the conclusion that as to lead statements, he felt intoxicated. did not suggest extrajudicial alcohol before A consumption drugs defendant’s mere warrant an instruction crime insufficient to generally commission of a is Cal.3d (People v. Miranda diminished capacity. evidence 1127].) find no substantial P.2d We
Cal.Rptr. crimes. he committed the intoxicated when this record that defendant was intoxication lack of evidence of Had the instruction been given, omitted mitigating the desired would have drawn makes it that the unlikely not, therefore, agreeing incompetent inference. Defense counsel deliberations (h) That the given. jury’s the factor instruction need not be different conclusion. were does not warrant a relatively lengthy death verdict. application 7. Automatic for modification of *49 the death modify the automatic During hearing application on 190.4, (§ (e)),21 verdict the trial stated it had considered subd. court in section evidence and the law and examined each factor listed sentencing (h), that there was no 190.3. As to factor the trial court observed he had evidence on the issue. to the evidence that Calling again our attention crimes, drunk defendant alcohol and smoked of the marijuana night on observation, the trial contends court erred this and must therefore making have failed to meet its under section 190.4. statutory duty seen,
The trial court did not err. As we have the record was devoid of intoxicated, testimony defendant and the evidence of appeared an consumption marijuana alcohol and did not substantially support 190.4, (e), provides Section subdivision as follows: every finding imposing “In case in which the trier of fact has returned a verdict or the death penalty, the defendant shall be deemed to have made an for modification of such application finding verdict pursuant ruling application, to Subdivision 7 of Section In on the [1181]. evidence, consider, account, judge shall guided by review the take into and be 190.3, aggravating mitigating circumstances referred to in Section and shall make a determination as to jury’s findings aggravating whether and verdicts circum- outweigh mitigating stances contrary presented. circumstances are to law or the evidence judge The findings. shall state on the record the reasons for his judge “The shall set ruling they forth the reasons for his and direct that application be entered on the Clerk’s minutes. penalty The denial of the modification of the death verdict pursuant (7) to subdivision of Section 1181 shall be reviewed on the defendant’s automatic appeal pursuant (b) to subdivision of Section granting application The shall be 1239. reviewed People’s appeal on the pursuant paragraph Section [of 1238].”
inference that he inwas such a state. Defendant has not shown that the trial court failed to take evidence into account mitigating or to its discharge 190.4, under obligation (e). section subdivision 8. Cumulative error.
Finally, contends that the cumulative effect of errors the penalty reversal phase requires of his death Since we sentence. have found no defect in the penalty phase beyond nonprejudicial prosecutorial “coached,” reference to Cercy’s as testimony this contention fail. must
Disposition above, For the reasons stated we find no reversible error in the record. The of death judgment is affirmed.
Lucas, J., Arabian, J., Baxter, J., J., C. and George, concurred. MOSK, J., Concurring Dissenting. I concur the insofar judgment as it affirms defendant’s conviction for the second degree murder of Mary review, Gioia. After I have found no reason to disturb the jury’s verdict on this issue.
I however, dissent from the judgment, insofar as it affirms defendant’s conviction for the first degree murder of Gregory Kniffin. verdict jury’s here willful, deliberate, cannot stand. Guilt rests solely on the theory premeditated show, murder. But that Ias shall theory, is without adequate evidentiary support.
In reviewing of sufficiency evidence under the due clause of process the Fourteenth Constitution, Amendment to the United States the question “whether, we ask is after in viewing evidence the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a (Jackson reasonable doubt.” Virginia v. (1979) 307, 560, 573, 443 U.S. 2781], 319 L.Ed.2d [61 in 99 S.Ct. italics mind, original.) To we my must ask the same question when we conduct such review I, under the due process clause of article section 15 of the California Constitution.
The following principles appear applicable to sufficiency-of-evidence analysis under both the federal and state charters.
The evidence that we view is the evidence in its entirety. (People v. (1980) 557, Johnson 431, 26 Cal.3d 738, 577 Cal.Rptr. 606 [162 P.2d A.L.R.4th under the due clause of U.S. expressly process 1255] [decided Const., XIV, Amend. under the due clause of Cal. impliedly process Const., I, words, 15].) In art. other we the facts in favor of although weigh § we do not such facts as are favorable People’s position, weigh only record—i.e., thereto. must resolve the issue of the whole light “[W]e the entire of the defendant before the not limit our picture put jury—and may appraisal to isolated bits of evidence selected by” People appeal. Johnson, 577, (People supra, v. at italics p. original.) sufficient, To be (See, evidence must People of course be substantial. e.g., 1, 119, (1988) v. Morris 46 Cal.3d 756 P.2d Cal.Rptr. [249 843] [decided Const., XIV, under the due impliedly clauses of process U.S. Amend. “ Const., I, Cal. 15].) art. if It is such it only ‘reasonably § confi- inspires ’ ” Morris, dence and is of “solid (People supra, 19.) value.” at By p. definition, “substantial evidence” evidence and mere requires not specula- case, In tion. any given one “may speculate about number any of scenarios inference, however, have may occurred A .... reasonable not be may alone, based on suspicion or on imagination, sur- speculation, supposition, mise, conjecture, or guess work. ... A finding of fact must be an inference drawn from evidence rather than ... a mere as to speculation probabilities 21, (Id. without evidence.” at italics p. original, paragraph sign internal quotation omitted.) marks
Further, the evidence must be capable supporting finding as to every fact required beyond conviction a reasonable Any doubt. such doubt must, course, be “reasonable”—but more. It need nothing not be plainly “grave” or even 39, _ (Cage “substantial.” (1990) v. Louisiana 498 U.S. 339, 342, L.Ed.2d [112 111 S.Ct. under the due process 329] [decided Const., clause of U.S. Amend. (per curiam).) What is required, XIV] word, is “near certainty” (People v. Hall 62 Cal.2d Cal.Rptr. 396 P.2d under general law]) 700] [decided principles Louisiana, “evidentiary certainty” (Cage v. supra, L.Ed.2d at p. __ [112 p. 342, 111 S.Ct. at p. (per curiam)). 330]
A state-court conviction that is not supported by sufficient evidence
violates the due process clause of the Fourteenth Amendment and is invalid
*51
for that
(Jackson
reason.
Virginia,
v.
supra,
I now turn to the issue whether the evidence is sufficient to support willful, defendant’s deliberate, conviction for the and murder premeditated of Kniffin.
546 and delib- premeditation concerns the elements of
The specific question intent to kill. and deliberate strictly, eration—or premeditated reflec been defined as “on preexisting has Traditionally, “premeditated” tion,” of weighing careful and thought as from “resulting and “deliberate” 15, 26 (1968) 70 Cal.2d (See People v. Anderson generally considerations.” 550, have been 942], cited.) The terms P.2d and cases Cal.Rptr. [73 and not “spontaneous”; their is antonyms: “premeditated” further defined “rash,” (See gen or “impulsive.” not “hasty,” “impetuous,” “deliberate” is 5]; People v. (1946) P.2d 29 Cal.2d erally People [174 v. Hilton 7].) (1945) 25 Cal.2d P.2d Thomas Anderson, in as we stated supra, pertinent part In 70 Cal.2d People v. follows. to sustain a which court has found sufficient
“The of evidence this type (1) categories: falls into three basic of and deliberation finding premeditation which prior killing did to the actual facts about how and what defendant toward, and in directed activity that the defendant was engaged show in, as characterized may intended to result be killing—what as explicable and/or prior (2) relationship facts about the defendant’s activity; ‘planning’ infer a reasonably which the could jury conduct with the victim from motive, victim, facts of inference with together ‘motive’ to kill the which (1) killing inference that the (3), or would turn an type support weighing ‘careful thought result of ‘a reflection’ and pre-existing exe- hastily ‘mere or rash impulse considerations’ rather than unconsidered cuted’; which the could (3) jury facts about the nature of the from killing that the exacting infer killing that the manner of was so particular de- killed to a according ‘preconceived defendant must have intentionally ‘reason’ which the sign’ to take his victim’s life for a particular way (1) (2). can infer from facts of or reasonably type first will sustains verdicts of of the cases show that this court “Analysis types murder when there is evidence of all three degree typically (1) otherwise at least evidence of or evidence requires extremely strong Anderson, (2) (1) (3).” supra, conjunction (People with either or 26-27, omitted.) Cal.2d italics citation pp. original, Anderson, language we its From we decided have construed very day the evidence is to be normative as well as The rule is this: descriptive. (1) if sufficient if there is only as to and deliberation premeditation manner; (2) extremely strong evidence of and motive and or planning either or planning evidence of evidence of motive and planning; manner.
Here, evidence that defendant an attack on planned there is no substantial Indeed, “facts about how and Kniffin. the record is devoid of essentially did which show that the defendant prior killing what defendant to the actual toward, in as intended to result engaged was directed activity explicable in, Anderson, italics (People supra, p. the . . . .” v. 70 Cal.2d killing in I the For sake shall assume that fact that original.) argument’s only, defendant had to reload his rifle amount to some evidence manually may evidence, add, he the I be at killing. second Such hasten to would “planned” with the best minimal: inasmuch as defendant was familiar readily weapon, he absolutely could it reflex action. Be that as it there is manipulate by may, no evidence that the victim the in fact Of second was killing Kniffin. course, the evidence murder Kniffin allows that the was speculation stated, evidence, But as planned. is not less still substantial speculation evidence.
The majority (1) to find some evidence of in the absence purport planning of facts as to whether or not in defendant had his rifle when possession Gioia; he in (2) was last seen Kniffin and company of fact that had manually reload the asserted fact that the rifle weapon; would not otherwise have been available at the time and of the murders. The place first is point unsound. The logically absence of facts cannot yield presence of facts: ex nihilo nihil The second founders on the set analysis fit. out in the preceding The third is in and paragraph. inadequate of itself. True, Apparently, weapon readily available. the hour of the killings location, however, was late. The was hard Rainbow by Village, where rifle was kept.
Next, there is no substantial evidence that defendant kill had motive to Kniffin. Again, the record is essentially devoid of “facts about the defend prior ant’s relationship and/or conduct with the victim from which the jury could infer a reasonably ‘motive’ to kill the (People victim . . . .” Anderson, supra, 70 Cal.2d at p. italics As the trial court original.) observed, the motive, record reveals that defendant acted “without apparent any nor nor rhyme reason.”
The majority purport to find some evidence of motive a sexual-attack theory devised by prosecutor summation at trial and/or a witness- elimination theory fashioned General in Attorney his brief for the People appeal. Surely, evidence allows speculation accordance with the prosecutor’s theory. But it does not simply a factual inference support evidence, effect. Again, speculation is not less still substantial evidence. The same is true as to the Attorney General’s theory. there
Finally, is no substantial evidence that defendant a manner employed of killing Kniffin that reveals forethought and reflection. The record is weak *53 infer
as to “facts about the nature of the from which the could killing jury that the defendant killing exacting that the manner of was so and particular must have killed to take intentionally according design’ to a ‘preconceived his victim’s life a for a ‘reason’ which the can particular way Anderson, (People infer from facts of’ or motive. v. reasonably planning supra, at 70 Cal.2d italics p. original.) more, Kniffin nothing Had the attack on of a and single consisted shot case might be different. Such a situation would perhaps arguably suggest so-called “execution-style” exacting” is and killing—which “particular prac- tically by definition. attack, however,
The Kniffin savagely actual was not of this sort: beaten over The his whole before he was shot. situation that virtually body the facts done unambiguously killing disclose toward a points spontaneously and unchecked and method that is impulsively undiscriminating fury—a neither nor “particular” “exacting.” to find some evidence of a manner of majority purport killing isolation, and in the In fact
revealing forethought reflection shot. single context, however, must be deemed In it cannot be considered significant. sure, substantial. To be evidence an inference of intent to kill. supports But such an intent does not amount to or entail or deliberation premeditation Anderson, (See 26.) People supra, of itself. v. Cal.2d at p.
In view of the trier foregoing, rational of fact could not have found willful, a reasonable the first guilty beyond degree doubt of premeditated, and deliberate murder of Kniffin.
Put simply, premeditation deliberation were not established to a “near Hall, certainty” (People supra, 112) v. 62 Cal.2d “evidentiary or to an p. Louisiana, certainty” (Cage supra, 498 U.S. at L.Ed.2d at p. _ [112 p. 342, 111 curiam)). S.Ct. at p. (per 330]
The record does not reveal that defendant formed an intent to kill “on preexisting reflection” “resulting from careful thought weighing considerations.” the case here
Certainly, does not come within There the Anderson rule. is no evidence of planning together with motive together with manner. Neither is there extremely strong evidence of planning. there is no evidence Finally, together motive with either planning manner.
Therefore, the evidence is insufficient to defendant’s conviction support willful, deliberate, for the first degree murder premeditated of Kniffin. *54 I would set murder conviction. I would Accordingly, degree aside first then vacate the circumstance of the absence of its special finding because Code, 190.2, (See predicate—a conviction of first murder. Pen. degree § I (a).) subd. And then would set aside the sentence of death because of absence of its predicate—a conviction of first murder under degree special (See ibid.) circumstances.
KENNARD, J., Was there evidence Concurring Dissenting. sufficient that defendant I premeditated deliberated murder of Kniffin? Greg Therefore, conclude there I was not. would reverse defendant’s conviction would, however, for the degree first murder of I Greg Kniffin. hold the evidence sufficient to convict defendant for the second murder of degree Gioia, Kniffin. With respect to the of I killing Mary join the majority affirming defendant’s conviction for second murder. degree Facts
I. Viewed in the light most favorable to the prosecution (People Hayes 577, 52 Cal.3d 376]), Cal.Rptr. P.2d these are relevant facts:
Defendant was a resident of “Rainbow an area that Village” Berkeley, had crimes, been set aside for the homeless. At the time of the numerous followers of the Grateful Dead rock band were at the staying village. Among them were Gioia and Kniffin. Each was beaten and shot to death on the of morning August 1985. The cause of each death a single was contact wound to the head or neck. Gioia’s was found body floating the San Francisco Bay August and Kniffin’s was body recovered from the bottom of the bay the next day.
The evidence was circumstantial. One witness testified that defendant was standing 16, 1985, with the victims at 2:30 a.m. on August looked “grim.” Defendant told several the next people that his morning .44-magnum rifle had been stolen. His which pipe, he said he had used to smoke victims, marijuana with the was found near the scene of the shootings. Later that day, resident, defendant Medlin, asked another village Thomas hide defendant’s Medlin, ammunition. Other residents made similar requests anticipating a search of the village by police.
As Gioia’s body 16, 1985, removed being from the bay on August said, defendant “That’s Mary.” statement was made before a police officer, who was standing about 30 feet from the and 15 feet closer body defendant, than could tell if the was male In body or female. to a response that he think of plenty officer’s said could police question, reasons would want murder the victims. When the officer why someone one, him asked to name defendant said he could not think of time. any Richardson, A firearms and retired Jack testified expert police inspector, that, based on his examination of mortem of Gioia’s post photographs wounds, rifle the exit wound would be normal for a high-powered There was no evidence the kind that inflicted shotgun. regarding weapon *55 Kniffin’s wound.
II. Discussion 15, People (1968) Under v. Anderson Cal.Rptr. 70 Cal.2d 26-27 [73 (Anderson) 447 P.2d we to three of types its look progeny, 942] evidence, “motive,” “manner,” determine whether there is “planning,” to A sufficient evidence of murder. court will a premeditated reviewing uphold first murder three degree conviction when there is evidence of all types, when there is evidence” when there is “extremely strong of or planning, evidence of motive evidence either conjunction with of planning (Id. 27.) manner. at p.
A. Planning evidence did Planning “facts about how and what defendant encompasses prior to actual which killing engaged show that defendant was toward, in, directed activity as intended to result explicable killing— what bemay (Anderson, supra, characterized as . . . ‘planning’ activity .” 26-27, 70 Cal.2d at italics.) pp. original case,
In this the majority concludes that because witness Vince Johnson testified he saw defendant with the victims about 2:30 a.m. on night rifle, did killings, but not mention a defendant must have had to seeing Johnson, return to his get car to the rifle before committing the murders. however, rifle; was never asked whether he saw a to a his failure respond Moreover, that was never question asked is not evidence even if anything. rifle, Johnson had testified he did not see a this not prove would rifle; defendant had no it would show that on a dark from a merely night, distance, a witness who testified he “tried not to look” at defendant because he wanted to mind his own business did not see a The further majority rifle. infers that defendant must have because occurred planned killings they “where place would weapon not have been accessible . . . .” readily ante, (Maj. 518.) at opn., p. Yet this adds to the nothing majority’s specula- tion that defendant must have had to return to his the rifle. The car to obtain would activity “at an hour when that the murders occurred observes majority the fact that Rainbow (Ibid.) But view of be normally taking place.” not when near the time socializing actively drinking residents were Village inference rise to a rational give took this cannot killings place, apparently activity. of planning re- rifle had to be that because defendant’s also majority suggests shot, kill Kniffin while after each defendant must have planned
loaded ante, 517.) lag But the time necessitated reloading (Maj. it. opn., p. must have inference that defendant the rifle cannot an reloading support reload, had kill Kniffin because the the time it took to during planned Kniffin defendant’s first or second no whether way determining victim. here, People v.
In evidence cites majority its discussion of planning There, 685 P.2d Alcala 36 Cal.3d Cal.Rptr. 1126]. *56 weaker this court reasoned that “when a far felony against one plans victim, location, brings along takes her force or fear to an isolated and by kill advance planning which he deadly weapon subsequently employs,” Here, evidence of a (Ibid.) separate be inferred. there is no may reasonably Kniffin, Kniffin a victim far no evidence that was planned felony against defendant, weaker than and evidence he taken force or fear to no that was cautions, an And is not deadly isolated location. as Alcala use of a weapon necessarily (Ibid) evidence of a to kill. plan
Thus, there is no substantial evidence what defendant did before of toward, killings shows was directed engaged activity explica- in, ble as intended I there is to result Kniffin. As will next killing explain, also no evidence of motive.
B. Motive
Motive evidence prior consists of “facts about the defendant’s relationship and/or conduct with the victim from which the could infer a jury reasonably victim, motive, ‘motive’ kill which inference of with facts of together manner], [planning would turn killing an inference that the was support the result of ‘a pre-existing reflection’ and ‘careful thought weighing considerations’ rather than ‘mere unconsidered or rash exe impulse hastily (Anderson, cuted’ . . . supra, .” italics.) 70 Cal.2d at p. original This case lacks evidence of any motive. The trial court declared at the sentencing hearing that the murders were committed “without apparent motive, nor any rhyme or reason.” The states: “The could majority
conclude that defendant killed because deliberately premeditatedly Greg witnessed, witness, he either had or was otherwise about to murder.” Mary’s ante, (Maj. 519.) opn., This conclusion is p. pure speculation. above, As noted there was no evidence as to which of the two victims was killed first. Nor was there evidence that either victim was killed presence. other’s
The witness-elimination majority’s was not the theory premeditation Instead, basis on which the prosecutor the case to the presented jury. Gioia, prosecutor argued defendant intended a sexual attack on killed Kniffin Kniffin when came to Gioia’s aid. The evidence that only motive, however, might a sexual suggest was that the zipper outer of two Gioia pairs pants wore was down when her partway body was recovered. But this evidence is consistent with the pathologist’s testimony more, that Gioia’s was body dragged rough over Without ground. zipper evidence is insufficient to the conclusion that Gioia was killed for a support sexual reason. The prosecutor’s added that Kniffin killed hypothesis when he came to Gioia’s aid is that: just not evidence. hypothesis, does not majority to resolve whether the sexual- attempt prosecutor’s attack hypothesis would show a if motive for Kniffin’s murder. Even murder, evidence somehow established a motive for Gioia’s with respect *57 Kniffin’s murder it has the same as the problems majority’s witness-elimi- nation There was theory: no evidence as to which victim was killed first. Nor was there evidence that either victim killed in was the other’s presence.
The that theory defendant killed Kniffin him to eliminate as a witness to unmotivated, the prior, apparently murder of Gioia founders on the absence hand, if, evidence any that Gioia killed was before Kniffin. On the other as the majority speculates, defendant killed Kniffin him to eliminate as a occur, witness to the killing Gioia that was about to then defendant must have had an motive independent for the murder of Gioia that the could jury infer rationally from the evidence. But no such motive independent appears. event, In any there is no evidence that Kniffin killed before Gioia. The majority deals with these multiple evidentiary failings by declaring “[tjhere is no evidence that both victims were not present together at the time ante, of the murders.” (Maj. opn., 519.) at But the p. absence of Moreover, evidence is not evidence. even if the evidence did that the show two murders, victims were together at the time of the this still would not first, prox- Temporal spatial killed or why. which victim was establish not, themselves, motive. tell us about anything do imity a con- that (or supports evidence relationship”) of motive “prior Instead reflection’ ‘a pre-existing was “the result of killing clusion that ‘mere uncon- than rather ‘careful of considerations’ thought weighing ” Cal.2d at (Anderson, supra, p. executed’ impulse hastily sidered or rash of violence. 27), with an explosion the evidence here is more consistent killed. being beaten before evidence victims were badly showed both that, defendant to for necessary we because it was Although surmise may victim, break required rifle second shooting reload the before reflection, to show tend only this would reload an provided opportunity There no evidence victim. is as to defendant’s second premeditation Kniffin was defendant’s second victim. short, defendant’s prior
In evidence about any record is devoid of reasonably could Kniffin from which the relationship conduct with infer kill a motive to him. this, Edwards People relies on recognizing majority
Implicitly for the (1991) 54 819 P.2d Cal.3d Cal.Rptr.2d 436] a specific that we “have never proposition prosecution prove required is murder.” This degree motive before ... of first affirming judgment Anderson, be In murder would degree judgments correct. we stated that first “extremely affirmed even the absence of evidence when there was motive 27.) In (Anderson, strong Edwards, supra, p. evidence” of 70 Cal.2d planning. Anderson; was no evidence of this court adhered to there although motive, we murder in Edwards because upheld conviction of first degree (Edwards, supra, evidence of . .” “extremely strong planning . . contrast, 814.) Cal.3d at evidence of p. here there is no substantial By planning.
C. Manner *58 third of evidence cases as useful type recognized this court’s by Manner determining premeditation killing. is evidence of the manner of evidence which the “facts about the nature of the from encompasses killing could infer that jury exacting that manner of was so killing particular the defendant must have killed to a intentionally according ‘preconceived to take his life in which the design’ victim’s a for a ‘reason’ particular way (Anderson, can infer jury reasonably from facts of or [planning motive].” 27, supra, italics.) 70 Cal.2d at p. original Here, the contact majority states: “Both victims were killed single ‘
shots, neck, to Mary’s sufficiently head a method Greg’s “particular
554 ’ and exacting” according to warrant an inference defendant was acting that 1035, to preconceived (People (1988) a v. 46 Cal.3d design. Caro 1050 [251 757, 680]; [333,] [(1987)] Cal.Rptr. People Bloyd 761 P.2d v. 43 Cal.3d 348 368, ante, 802].)” In 518.) P.2d at v. Cal.Rptr. p. People 729 (Maj. opn., [233 680], (1988) Caro 761 P.2d there no Cal.3d was Cal.Rptr. [251 evidence of a and we concluded struggle, close-range gunshot that a head was infer “arguably sufficiently ‘particular exacting’ an permit (Id. ence that defendant at acting design.” was to a according preconceived 1050.) In People Bloyd p. Cal.Rptr. Cal.3d 333 802], P.2d we determined that close killings” by shots at “execution-style evidence, range provided sufficient manner found it that significant but evidence, lacerations, “there was such a no as bruises or to demonstrate Here, (Id. struggle.” 348.) This from p. Bloyd. case is different Caro and there was evidence of lacerations Knif considerable bruises and preceding death, fin’s This including by gun evidence he had been struck a barrel. evidence is more with a At consistent a brutal attack than calculated killing. most, the evidence a weak of manner. The do permits very inference facts not show “a design’ way to take life ‘preconceived particular [Kniffin’s] for a ‘reason’ which the infer from facts of reasonably [planning [could] (Anderson, 27.) or supra, 70 Cal.2d at p. motive].”
III. Conclusion therefore, Defendant’s crimes were brutal and reprehensible; jury’s decision at the phase easily the maximum is penalty impose penalty understandable. But when the evidence against guidelines is measured this court has followed for last quarter-century distinguishing premed- murders, itated murder from all other of first murder judgment degree motive, cannot stand. There no evidence no evidence of planning, Anderson, weak evidence of Under manner. 70 Cal.2d at supra, page there must be evidence of all three or evidence of types, extremely strong planning, or evidence motive evidence either plus planning manner. case, Applying the criteria of Anderson to this I there conclude is insufficient evidence to rational support a inference beyond reasonable doubt Kniffin; defendant premeditated and deliberated the murder of the evidence is sufficient only degree second murder. *59 first for the of defendant I reverse the conviction would
Accordingly, the death for eligibility defendant’s murder of Kniffin. Because degree Code, (Pen. murder first degree on the judgment is penalty dependent remand and would finding, I circumstance 190.3), would strike the special § for resentencing. the case Mosk, J., denied June 1992. rehearing
Appellant’s petition Kennard, J., granted. should be that the opinion petition were of the