*1 S004725.Dec. 1999.] [No. PEOPLE,

THE Plaintiff and v. Respondent, HAYES, Defendant

ROYAL KENNETH and Appellant.

Cоunsel Court, Eric S. under Multhaup, M. appointment by Supreme Kathy Chavez, Tamara P. Holland and Jeanne M. for Defendant and Fahey Appellant. General, Williamson,

Daniel E. and Bill Lungren Lockyer, Attorneys George General, Anderson, Chief Assistant Attorney Robert R. Assistant Attorney General, II, William G. Prahl and L. Brosterhous Raymond Attor- Deputy General, for Plaintiff and neys Respondent.

Opinion 3, 1984, BAXTER, J. December in the Santa Cruz jury County On Court convicted Kenneth Superior Royal Hayes of the December 29, 1981, Code, 187, (Pen. 189)1 first murders degree of Lauren de Laet §§ MacVicar, and Donald and found true a multiple-murder special-circum 190.2, (§ stance (a)(3)) subd. and an allegation allegation Hayes person used a firearm ally (§ 12022.5.) the commission of the during murders. 9, 1982, same convicted of the March jury false imprisonment (§ 236) of and (§ assault with a deadly (a)) subd. on Deborah weapon Garcia, Code, (Health 11350) of cocaine & Saf. possession § 10, 1982, March the date of his arrest. The was unable to on the jury agree for the murders. penalty 29, 1986, Court,

On May in the Stanislaus jury County Superior venue, which the case had been transferred on a returned a county change verdict death. The trial court denied motion for penalty (§ 190.4) modification of the of death on penalty judgment imposed August 1986. (§ 1239.)

This is automatic. We shall affirm the in all appeal judgment respects.

I The Prosecution Guilt Phase Case *13 summarized, evidence, insofar as it relates to the murder Briefly counts, established that Donald MacVicar and Lauren de Laet shot were by stated, statutory

1Unless all references are the Penal otherwise Code. of the of University Cruz location on the Santa campus defendant at a remote buried, had holes, to be in the victims were shallow which California where defendant to whom to the location by The victims were lured been prepared. cocaine, been led to $250,000 the victims had which given MacVicar had of the The killings. a near the site to be at house believe was delivered been in which they from the vehicle taken individually victims were Weller, under a an who testified Diane accomplice driven to the location. were in the vehicle. The victims instructed to remain was grant immunity, house delivery before to the where going that each had to be searched told witness, Garcia, who Deborah another prosecution the cocaine was to occur. under a was grant immunity, present. the holes and testified had prepared and, each as a victim leaned forward ordered her to search victim Appellant search, back of shot the victim the a tree to submit to the against site, MacVicar, a to be taken to the was killed by single the head. the first shot, Laet, had been did De to the site after MacVicar brought shot. who was time. Garcia then brought not die at once and shot in the head a second was Weller to the scene. hands, after the bodies the victims’ heads and which removed holes, had to What believed enlarged.

were in the which be placed over the bodies. that would hasten was decomposition spread quicklime brush, dirt, and leaves. The severed body were then covered with graves Garcia, and and left bags nearby. were parts placed plastic Appellant, clothes, the and other guns, Weller later disposed perpetrators’ at other evidence locations. 1982, of what fragments

On mushroom hunter discovered February and took later determined to be de Laet’s skull. He marked the location returned to the site two the skull to a sheriff’s He fragments deputy. coroner, who, the fragments together while awaited deputies pieced to be the size of a .44- or .45-caliber slug. and observed hole that appeared and other investigative personnel On sheriff’s following day, deputies hair, shovel, a kitchen or located more bone a small amount of fragments, knife, the bone and a near the which green garbage bag steak place found. fragments were 10, 1982, de Laet’s the next day. was found on March body

MacVicar’s skull to it. MacVicar’s clinging Each torso had a white substance clay-like on March in the area another mushroom hunter 1982. was found same from this skull. De slug later removed a .45-caliber surgeоn An autopsy or from bullets which were .44- Laet’s skull was found to have holes two heads and hands had indicated that the .45-caliber. Neck and wrist wounds machete, hatchet, like a been removed with a instrument slicing chopping through X-ray of the victims was confirmed past or cleaver. Identity dental records. *14 Garcia,

Appellant’s involvement became known when for her life fearing and the of her safety disclosed her family, to her brother-in- participation law, who for her arranged to meet with an of the Federal agent Bureau and local Investigation law enforcement officials. Garcia,

Weller and each of whom claimed to have acted under the him, domination of and to have feared appellant testified about their rela- with him and about tionship various criminal drug-related activities in which and others had with over a participated appellant period years prior to the murders.

It is to state in detail the necessary greater evidence received during trial, of the guilt phase much of it although is not relevant to establishing because the appellant’s guilt, evidence both to the goes credibility witnesses, Weller, chief Garcia, prosecution an whom the accomplice, jury may have found to be an and to whether Garcia accomplice, was an addition, as a matter of accomplice law. In at the penalty phase jury evidence, to consider much permitted of this which reflected criminal activ- ity force and violence involving and both threats to use express implied (§ 190.3.) force and violence.

A. Weller’s Testimony.

1. Events December preceding 1981. Weller met in She became 1977. infatuated with Minneapolis him, well, and he moved into her dressed apartment. Appellant expen- sive seemed to be a jewelry, “big He told spender.” initially Weller he salesman, awas real estate but about his with the Team- spoke relationship sters Union and the Mafia. At that time Weller believed money came from connections had with the Mafia. He told her he could have followed could make He people things them. did not like happen “snitches” and who stole from him. Weller felt she be people would killed if either, she did but was not afraid of at that time because she did neither. and Weller moved to Kailua-Kona on the island

Appellant of Hawaii late He claimed 1977. now that he was connected “Hawaiian Mafia” he where was a “man of He told Weller that a should never respect.” person with a “man of and screamed at her argue if she talked back to him. respect” used the code name His credit cards “Penguin.” bore “Central States’ He used other names for Properties” logo. two persons’ telephones and had a office box to “Mr. Church.” He told Weller not to post registered *15 for her her followed said he was having his business and ask about questions of things he was aware because She believed appellant safety. own personal not told him. about she had she had done which her required house because appellant left in Weller Early appellant’s 1979 he her having that was again did. told her to she Appellant report everything following she were thought and she saw persons followed for her own safety her. house across one-bedroom in a small living

In was April appellant Garcia had been in Kailua. Deborah beach on Alii Drive the road from the at a time when first met Garcia at that location. Weller with living appellant 1981, and saw sometime before January with Garcia was living appellant, of house. One in the Alii Drive that month Garcia was living when again mainland left for the in Garcia’s name. Garcia was appellant’s telephones He said Garcia called Weller. United States in 1981. April Appellant her to visit him. At left, and and asked told Weller that he was ill unhappy, Weller, a small trailer on was then living who appellant’s request, beach, moved back in with appellant. cocaine using back in appellant

When Weller moved with appellant, used two to both and a basis. For two months Weller regular appellant for necessities. left the housе only three of cocaine grams daily. They a having and believed he was often Weller “gibberish” Appellant spoke began summer of speak mental breakdown. In the appellant about connections with the CIA and continued to talk connections with was a code name “Penguin” Union and the Mafia. He said that Teamsters CIA, came to the house and told her that two of his friends who from the CIA He also cocaine them were agents. this and used during period awake and documents. who stayed showed her secret Appellant, purportedly use, cocaine told of heavy talked for two-month days during period Union was have physical that the head of Teamsters Weller When at the and would never leave hospital. examination hospital would, afraid said he Weller was official died on day appellant do the Mafia. did have to with something believed appellant Drive, often used on Alii pay At the time were living calls, that his own telephone receive explaining to make and phones probably tapped. accused her because often to doubt her own sanity

Weller began regu- cocaine receiving selling He was then instructions. forgetting “cut” Lauren de Laet mailed package him it. she larly helped cocaine, cocaine to the summer of 1981. He hid the appellant during which have been a of a may lava-rock wall in the quarter pound, garden. told Weller he had met de Laet on the beach the summer of during 1980 when she was in Hawaii. De Laet living wrote cards to Weller. Weller talked to de Laet often on the when de Laet called telephone and, direction, speak appellant, Weller wrote to her Eve, did Weller not meet de Laet in weekly. until Christmas person 1981. *16 In late June or early July 1981 and Weller appellant stopped using cocaine. The decision to do so was both appellant’s. They began eating and worked out and normally appellant to back in jogged daily get shape. normal, His mental state did not return to however. He tense and easily was became He continued angry. to of the CIA and about his speak phones being He bugged. of bombs in the cars. spoke

In August told Weller that he appellant was to mainland going Laet, to more time with de and he spend de Laet to in move expected with him in He Hawaii. told Weller to remove items that de would clash with Laet’s nonviolent character from the home. He a specified plastic handgun, handcuffs, knife, a and a of a bandoleer of bullets. picture appellant wearing Tate, He told Weller she was to with live to whom had Tonya appellant introduced her. Weller moved out of the Alii house. Drive was with de Laet in San

Appellant Rafael for about a month in and August 1981, but de Laet did not him on September his return to Hawaii. accompany in, asked Weller to move back that de Laet Appellant stating just good friend. LSD back with him. Weller and Tate Appellant brought used LSD with once a week at the Alii Drive house. had become Appellant He struck Weller in the He told edgy short-tempered. face twice. and claimed that because afraid of him importance “respect” were people would be afraid of her. He said he tell they would that she was people and that he had her to kill killing taught and shoot She capable gun. never with in front of because that be disagreed anyone would In October 1981 when she told him that his lies about her were disrespectful. idea, her, not a he struck good she should never repeatedly saying disagree with him and threatened to kill her if she told he had struck her. anyone attitude toward Weller had from understand- Although changed appellant’s violence, him kindness she because she was afraid to ing stayed leave. She also needed had because thought help something him and she could not leave him. within happened just before He flew California week 1981. told Appellant Thanksgiving Weller he was tired of Hawaii and was a house and move to going buy Christmas, but appellant to Minnesota going Weller was California. de Laet. and meet in California asked her stoр 1981. on December Francisco flew to San Weller to the Millbrae traveled and the group her at the airport MacVicar met direction, for 10 days. rented a room Weller At Travelodge. motel, the three ingested MacVicar visited at the While were one two guns, gave appellant Weller In MacVicar’s daily. presence, cocaine in- Commander appellant Colt Combat a .45-caliber of which was a .22-caliber The second gun from Hawaii. her to bring structed been in the which had her that the guns, had told derringer. Appellant Hawaii, to Garcia. Appellant were registered Tommy Pyne possession MacVicar, him his MacVicar, and called arm around to like his put appeared a wonderful person. Appellant that MacVicar' was brother. He told Weller Travelodge. at the Millbrae their during 10-day stay did not leave the room 24. While on December at the motel with MacVicar De Laet arrived *17 Laet, de became with angry on December appellant MacVicar was away her, de Laet and hit cocaine he had given accused her of with partying Weller, times, on her knees to who that she several demanding apologize Later he his arms to hit de Laet. put He also ordered Weller “lady.” was Laet, everything and told her that de told her she was a good girl, around be all right. would $160,000 27, 1981, in a black in cash December MacVicar brought

On it and it for appellant. to the motel room he counted packaged where bag had stated that he thought they for cocaine. was money payment Appellant in a $250,000. he could the remainder get MacVicar agreed replied Laet, Weller, de instructions Following or two. day MacVicar, towels and using rubbing washed the gloves, money wearing money and then to repackaged alcohol remove fingerprints, time to this it was obvious Weller appellant thousand-dollar By packs. going had mentioned a real estate transaction. Appellant was not pursuing what was going Weller she knew thought Santa Cruz and at this point to de Laet and MacVicar. happen she money put to address

Weller was directed packages $20,000 for Deborah Garcia. containing One together. envelope kill left, that he told Weller planned After MacVicar appellant and she was to with go Cruz on December 29 and de Laet in Santa MacVicar They a silencer for him. had a and had made A friend in Minnesota gun him. $250,000, for He had set MacVicar up to be on the 28th. were delivered MacVicar the best promising cocaine he ever had. MacVicar and de Laet had deal, been led to believe that to make the had to they to Santa Cruz go because who did not people want their names disclosed were to deal going $20,000 on their appellant farm in Santa Cruz. The for Garcia was for to Santa Cruz going with them. Weller did not to go because she police did not she believe could and feared stop killings would kill her if she did so. Dahl, a friend

Larry arrived from appellant, Minnesota with a pistol with' a silencer equipped arrived, on December 28. Minutes before Dahl Weller had taken a call for telephone “Penguin” from caller who said: “Tell him it’s L.D.” told Weller Appellant that Dahl awas “man of respect” whom she embraced, was to when he hug entered. and Dahl Appellant spoke times,” of “old and Dahl showed appellant how to attach the silencer and use The silencer gun. looked like a car muffler and was about a long. foot Dahl stated that Jim Johnson could not guarantee that the silencer would work because had not time given him much to work on it. hid the before gun MacVicar returned. MacVicar and Weller left to mail the Garcia, packages money, that for except at different post returned, offices and food. After purchase MacVicar left to get an ounce of cocaine for While he was appellant. gone, told Weller that he $5,000 Dahl going pay delivering silencer. pistol Appel- lant also offered to pay Dahl’s hotel at the San Francisco expenses Airport Hilton.

2. December 1981. *18 29, 1981, On December told Dahl and appellant Weller to rent a four-door sedan, with Dahl driver, as the renter and signing Weller as the second the drive to Santa Cruz. He ordered Dahl and Weller to knit get caps, gloves, saw, a and a hatchet. He that he explained was to cut going up corpses MacVicar and de Laet so the bodies could not be identified if found. After left, had they obtained the items and Dahl had told Weller to wear appellant gloves and the stocking with all of her hair cap underneath it. She also told to shower, bring change clothes to wear after the and to killings, avoid use of deodorant or perfume. and Weller left the

Appellant motel at noon on December 29 with the suitcase, hacksaw and in one plastic garbage bags the remainder of the briefcase, briefcase, in a money with gun silencer in a second and the in a change clothes second suitcase. All of these items were in the put car, trunk of the rental and the drove to the San Francisco couple Airport Hilton Hotel where met de Laet and they MacVicar in the lot. The parking car, four then drove to Santa Cruz in the rental de Laet at the wheel. Cruz, met Garcia in the lot of doughnut shop In Santa parking group told Garcia earlier that he would she was say at 3:00 p.m. Appellant teacher, told to refer to de Laet and at ease. Weller was MacVicar put “Bebe,” Garcia that name. by as as de Laet and MacVicar knew Garcia car, at her with Garcia the others in the rental Leaving spoke appellant Weller, Laet, de automobile for to 15 minutes. He then told Bronco because knew Garcia. would use the Bronco Garcia They MacVicar join in the mud as it was raining. and to avoid stuck way getting Appellant Bronco to the Bronco. The five then drove in Garcia’s brought luggage Road Garcia on the shoulder. to a Grade where Empire parked place road, into the to the Garcia and walked woods adjacent appellant to “check out” the exact location of the house were explaining they going where the cocaine transaction would occur and to see if could walk or they drive in. took a suitcase and a briefcase with him. Appellant out,

Garcia returned about 10 minutes and told MacVicar he could get follow, but de Laet started to Garcia told when wanted MacVicar to come himself. and de Laet in the Bronco. Weller waited later, Before Garcia returned to the Bronco about 10 minutes Weller again heard a then single which sounded like a branch Garcia gunshot breaking. told de Laet she could out and went de Laet After get into woods. the. another 10 minutes Garcia returned and told Weller she could out. again get to, Weller told Garcia she did not but Garcia said really want wanted to see her. Weller believed she to be killed because she was going what knew to the two ahead of her. When Weller happen people reached he was in his hand and was over appellant, holding gun standing Laet, the bodies of MacVicar and de had been shot in the each of whom head. told Weller and Garcia that were they “really good girls,” and told them were never to discuss the matter with even they anyone, themselves, and that he owed it to each of them to kill the other if either did so.

Garcia and Weller were ordered to take the off the bodies and to clothing in one of the and the victims’ place clothing garbage bags jewelry metal in another with the shells. As were objects expended doing *19 so, head, tried to use the hacksaw to cut off MacVicar’s but the appellant to,” blade broke. that he don’t make them like used Commenting “they they then used the hatchet to off the heads and hands of both victims. The chop a third The ordered to were in women were body parts placed garbage bag. MacVicar’s into the of the two holes Garcia had larger place body previ- The three then de Laet’s in the second hole. Each dug. ously placed body hole in it and to be made Garcia then of bag had water had deeper. opened lime and half of the lime over each before the holes were body poured covered. said the lime would the bodies. The holes Appellant decompose filled with dirt and the area then covered with and branches were leaves so it looked like the rest of the forest area. The three were garbage bags had tree woods. The hacksaw and hatchet been placed by deeper in the with metal placed bag objects. Weller, and Garcia then back to the

Appellant, doughnut drove shop. Weller from Hawaii in the console of the Bronco with the guns brought were for Garcia. The three clothes in the Bronco and money changed envelope in the clothes had removed into a which was put they garbage bag placed trunk of the did shoes and rental car. Garcia not have second pair on, hers but did not that. and wanted allow keep appellant Appellant Weller then Garcia drove the Bronco to the Dream Inn Motel followed who in Santa Cruz her name at direction where Weller registered for the room he had her. She did not given with paid money report time murders at that because terrified. She she was believed would kill her if she did so. told to call

On to the Dream Inn Garcia Garcia’s way mother, Edwards, Mrs. Diane them at the motel. He have Edwards join told knew “some old school in Las Weller Edwards people” respect She understood this to be a reference to Mafia Garcia called Vegas. people. mother, over, asked her to come and asked her to shoes for Garcia. bring had Garcia assured that her mother did not know what done they and Weller assured him that no one knew what she had done. He day it, told them were never to talk about even to him. Garcia’s again arrived, mother then the shoes. with in the Dream Inn room for one or two hours.

Garcia Weller remained cocaine which he had in one briefcase. Before consuming Appellant had been in the Garcia’s mother arrived at 6:30 who p.m., appellant, Garcia, had lied about whether Garcia bathroom with told Weller Garcia and directed into the bathroom and go slap Weller drinking stopped Garcia and said “I’m her. When she went into bathroom was crying similar to his earlier treatment of treatment of Garcia was sorry.” Appellant’s the bathroom to talk to Garcia. At de Laet. then went back into to be alone Edwards and or 10:00 said he wanted 9:00 p.m., appellant Cruz hotel and directed and Garcia to take a room at another Santa Weller a.m. to the Dream Inn the next at 9:00 9:30 morning return Bronco, out of the which and Garcia left. Garcia took guns Weller in the trunk of them in a basket knitting to Edwards belonged put to the Dream Inn. car which Edwards had driven Garcia’s small sports *20 car, Garcia drove the in her to a Inn where Weller Holiday again pair, in her the name room with registered paid money provided Garcia the basket with the Weller believed brought knitting guns. appellant. that Garcia her. She terrified. was guarding the Garcia told married an

During Weller that she evening, recently armored truck driver and was taking drugs drinking anymore.

Weller did not tell the hotel or call the to tell them of the manager police events because she day’s was afraid. 29, 1981,

3. Post-December events. California Weller Garcia returned to the Dream Inn the of December morning hours, Edwards the After 1981. door. two or three the four left opened the hotel. Garcia drove her own car. Her mother drove the Bronco. Weller drove in the rental car back to the Millbrae appellant Travelodge. suitcases, garbage bags and the briefcases were all taken clothing, into knife, room original where cut appellant, using hunting soiled up de clothing, clothing MacVicar and Laet had brought down for Santa Cruz visit as well as de Laet’s soft and the items used to luggage bag, wrap all money, which was into trash Weller was directed to call put bags. later, Dahl from a When Dahl nearby arrived a few hours phone. appellant him and gave Weller detailed instructions about of this disposal clothing various around Dumpsters town rental car. He also directed them using ammonia and rubber told purchase gloves. Dahl Weller he did not want blood any leaking from the bags. They tasks and returned in completed about two hours. Weller called the and made a reservation in her airport own 31, 1981, name for a December flight Minneapolis.

Sometime before December had told that he had Weller directed de Laet to awrite letter to him in The letter Hawaii. arrive murder, after her death and cover to Lauren and Don in up referring Florida a wonderful time and having to leave the Weller preparing country. letter, saw hand in tissue to avoid Dahl wrapped fingerprints, on December 31 and heard him ask Dahl to mail the letter from Florida. Weller, Using ammonia and rubber and Dahl cleaned gloves, appellant, the hotel room to trace of remove hair or Later that fingerprints. day, Hilton, Weller drove to the San Francisco where Dahl was Airport staying, to return the rental car. Dahl and followed in a rental car Dahl had driven from Minnesota. on an They access road Dahl stopped joined car, Weller. After the California rental Weller and Dahl took a taxi returning and, car, to the Minnesota waiting rental drove to the appellant, airport *21 off to to Weller for her 1:00 drop p.m. flight Minneapolis. Appellant asked to the room at the Millbrae for three more Travelodge Weller reserve Dahl but the would not do so. said he and were days, management he from to drive to and that would back to Hawaii going Washington fly up Washington. left, instruction, Johnson,

Before she Weller had called Jim appellant’s friend, had often referred to as a was to her up whom who appellant pick at the She told to herself as Red.” She identify “Big was Minneapolis airport. to Johnson to tell him how the silencer worked. enough was with stay long made no to authorities of the murders after She attempt notify appellant her or three on the Dahl off at the two dropped airport during stops to still afraid that would kill her and She was flight Minneapolis. appellant to wanted be from him. simply away

4. Minnesota events and return to California. wife, Johnson, at Jim Johnson’s Sondra and Sondra’s met Weller daughter 31, 1991, on December and took 10:00 Minneapolis airport p.m. Johnson, to their in Edina. met who had just Weller Weller apartment Florida, in the returned from the next at another home. Later day person’s did not at the Johnsons’ Weller told him that the silencer day, apartment, time, and third rounds. Johnson work the first but did work for the second indicated he knew what she about. talking was did not to at this as she was terrified by

Weller authorities go point threats to kill her. believed that the Johnsons were watching She to return her for When called and asked if she was going appellant. appellant Hawaii, month, told him in a after relatives. seeing to she she would do so return, that, did but did not tell as she feared She not intend began calling would come to and kill her. Appellant Minneapolis she was returning, saying in the middle of the when night asking repeatedly her, he trying that he missed he was She saying lonely. thought her back in order to kill her. lure in Minnesota and had a

Dahl a few after Weller arrived days appeared the Johnsons in with Jim Johnson. then saw meeting posses- Weller private as recognized having belonged appellant, sion of a number she guns and MacVicar. to be the used to kill de Laet what including appeared gun like a that had gun described to her as a Datonic firearm looked One gun a cocaine had told Weller that Johnson was been in California. Appellant dealer, that he had been to that he dealt and Johnson himself told her prison, her and firearms He showed and that he manufactured firearms parts. drugs, a machine gun.

Weller decided not to home as she believed to kill go going her and she did not want to After family. being present problems weeks, the Johnsons for she trusted them more. She became fond of Jim two *22 and a them. occurred Johnson sexual between This relationship developed had a man and her that Johnson himself killed notwithstanding knowledge was a cocaine her from being dealer. She believed Johnson could help keep killed. Weller then told Johnson that and had killed gone crazy appellant two in a and that he her drug she was certain would kill because people setup she awas witness. Johnson seemed and said he he had thought surprised made the silencer for to “kill snitches.” He had appellant originally gotten the for the gun and silencer from for use in a but he parts robbery, appellant was later asked to get because had to gun ready immediately appellant “kill some snitches in California.” and Garcia arrived

Appellant Minneapolis airport February Johnson, Weller, Dahl, 20. Jim and Sondra and all armed because they feared met them at the appellant, in the Johnsons’ van. Garcia had a airport black Garcia eye. said a karate it. caused opponent scared,

Garcia was to be quiet, and her appeared very throughout stay robot-like, doing what told her to do. At the appellant apartment appellant accused Weller of calling him and became punk angry when she denied accusation. He demanded that she for Johnson being apologize disrespect- Johnson, ful in his house and who ignored Weller was not protested bathroom, her, disrespectful. followed Weller into the Appellant grabbed wall, arm, her into the tile slapped twisted her and held a comb to her throat as if to slash it. He when Johnson stopped only intervened. Weller finally to Johnson in apologized demands. response then Appellant threatened to kill her if she told about the California and anyone murders bottle, told her to consider herself “hunted.” When she a vitamin opened her, off the clicking ran toward safety cap, appellant gun, pulled it at her. He pointed down at Johnson’s direction. put gun and Garcia left the apartment shortly afterwards. Weller did not see them until the murder again commenced. prosecution in March

Early Weller into an moved with apartment money did by Johnsons. She so because she believed Johnson could no supplied her from longer The was rented in the name of protect appellant. apartment Tate. Johnson cocaine Tonya stored used for cutting, equipment press- which had been ing, in Dahl’s packaging drug, previously kept in this Weller remained in the apartment, until apartment. apartment April 22, 1982, she (FBI) when surrendered to the Federal Bureau of Investigation still of an afraid attorney, although She did so on the advice Minneapolis. associates, that the Johnsons or his after learning killed being by arrested, arrested, had been had been and warrant

had been Santa Cruz law enforcement issued for her arrest. When contacted later, to talk to them because she was officers a or two she refused day an acces- June been having charged being afraid. At the end of murder, her attorney to talk to them after Minnesota she sory agreed and she from immunity prosecution explained options promised of immunity in her to the only grant statement. anything exceptions shot actually discovered that she had were if prosecutor perjury still feared that to make a statement even she though someone. Weller agreed her killed either in or outside jail. would have *23 1, 1982, on June 30 and July first talked to California authorities Weller (Minnesota) She while in the County jail. statements giving taped Hennepin until her would not be dismissed had been advised that charges against in returned to Monterey County protective she arrived in California. She was then in first in Santa Cruz and Salinas and held in custody county jail, name, her had against under another until even August though charges and federal to state guilty been dismissed earlier. Johnsons pleaded them, but she did against in Minnesota and Weller did not testify charges from For three months she received funds Dahl in Minnesota. testify against which time she found the California Witness Protection Program during for an Protection her Program rejected request The Federal Witness job. identity change. told of the district conceded that she had initially representatives

Weller and de Laet were that she did not know that MacVicar office attorney’s occurred. also testified to that effect to be killed until the murders She going hatchet, hacksaw, had seen the at the and denied she hearing preliminary she had originally the Millbrae Travelodge. Although in garbage bags California, he she did not know where was Dahl in because seeing denied afraid, that she had seen him. she testified hearing and was at the preliminary been truthful in conceded that she had not at trial she On cross-examination in and she denied involvement her when hearing testimony preliminary defense also activities. The of the Johnsons’ knowledge many unlawful to law enforce- Weller was in proximity out occasions which during brought conduct of authorities to the criminal and could have alerted ment personnel Johnsons, so, and the occasions many but did not do and the appellant to her leaving there was no appellant. which impediment Testimony. B. Garcia’s

1. Events December 1981. before (Debbie) (then Chichiletti) Deborah Garcia Deborah met in Kailua-Kona, December Hawaii. She in or began dating appellant about After she had January 1980. lived for about two months in a house him, next door to asked her to into move his house and assist with household chores. told first Garcia about the Mafia in Appellant January 1980, and stated that a he her retain for her had lawyer divorce helped in his Mafia helped appellant dealings.

Before she moved with him asked Garcia if she knew anyone could who of cocaine. get large At she ar- quantities appellant’s request ranged, an through one of cocaine for acquaintance, purchase pound $22,000. and she Appellant supplied money flew California to com- plete purchase. told her that someone would be watching on the and that she be plane would killed if went Due to an anything wrong. the contact apparent misunderstanding, four ounces of cocaine for only $2,200 which she was an ounce. charged When she returned with four only cocaine, instructions, ounces of he contrary said he would kill *24 her within the week if she did not make the difference had between what up been and what he believed the paid cocaine” was She “crummy worth. borrowed from friend and it to money gave him. 1981,

From early 1980 while Garcia lived with he early appellant, times, her, assaulted her at least six tried to her strangle with poisoned adulterated cocaine. While she was from the hospitalized recovering poison- he hit her in the face He ing, during visit. said she her mouth too opened much, connections, threatened her with his Mafia and told her she being was She watched. knew the last was true because he knew where she had exactly been even when she had been all alone with no one around. She once about thought and confided in Judith leaving without Lindquist, knowing thereafter, former wife. Soon Lindquist apparently Garcia aware spoken told Garcia that he would Lindquist,- appellant leave, have Garcia’s or nieces killed if she tried to off nephews would chop off, her brother’s head cut or his and would her sister’s child fingers hang and her brother on meat hooks while Garcia watch. forcing divorce,

After her had Garcia him as firearms from bring many the marital settlement as She with a .45-caliber possible. provided appellant Colt and a .22-caliber buried the in an ice pistol derringer. guns Appellant chest in the with Later home backyard money drugs. brought and that He said were “good killing guns”

two Datonic .45-caliber guns. direct from the some- factory had come registered; they were guns in his bedroom. how. had a “cowboy” gun Appellant kill Garcia if she did not or left obey threatened to Appellant repeatedly to be one of seven “men of in his He claimed respect” without permission. her if she committed suicide. After He threatened to kill country. family out, to her she called a friend and discussed moving appellant repeated her that the she had said on the phone, reminding phone everything Hawaii, and in marijuana grower He boasted that he was biggest tapped. he lectured cocaine in December even while heavily began using be killed by or alcohol. He said she would drinking Garcia about taking pills alcohol, in his house but later when she lived the Mafia if she used drugs him and take cocaine. Toward the end of he let her smoke marijuana much as a of cocaine at the Alii she him in of as pound saw possession Drive house. using in She first saw

Garcia met Weller in Hawaii 1980. Tate. forced her to apologize cocaine with Weller Tonya Appellant told her under the of death friends for her He also shortcomings. penalty his he claimed to be real estate selling to take care of Bennett Cleff to whom her to a hotel where she under the name “Central States sending Properties,” Cleff. She believed she or someone sexual acts with degrading engaged demands. ‍‌‌‌‌​​​​​​​‌‌‌‌​​​‌‌‌​​​​‌​‌​‌‌‌​​‌‌​​​​‌‌​​‌‌​‌‍she did not with Cleff’s would be killed if family comply in March During previous sent Garcia to California 1981. times that he could or would have her months he had told her many two he told her he was so doing he sent her back to California killed. When to be killed. He made an she talked too much and had because the Mafia said not talk rather Mafia to have her watched so she would with the agreement *25 than killed outright. told her to mail and containing guns Garcia gave package

Appellant the guns for her on arrival. She mailed the mainland to be waiting them to In cooler in a beer clothing provided appellant. with some of her her mother as in with retrieved the moved California she package calls monitored her with frequent phone had instructed. Appellant appellant her. mother, someone to follow told her he had assigned her and her instructions to wait and followed his appellant She never questioned be followed. told her she would booths for scheduled calls. Appellant phone a man whom times in Santa Cruz she saw him because several She believed in Kona who her onto carry bag plane had asked appellant occasion, near her she saw him On one to San Francisco. been on plane mother’s house. On another he was her. also instructed watching Appellant her to at a wait booth each at 5:00 and called her phone Wednesday p.m. there.

In instructed Garcia to April appellant open guns, package which she had assumed contained her Inside she found instead the guns. Datonic and the guns directed her to “cowboy” gun. down Appellant wipe with a cloth and store them in the until someone weapons packing arrived at her door the code name asked using Penguin package. house, When she moved out of her mother’s directed Garcia to appellant take the back to her package mother’s house because Garcia could not be trusted.

In October 1981 visited Garcia and told her to date appellant Donald Garcia, whom she had met earlier and to learn as much could as she about Donald Garcia’s an armored employer, car service. He gave Donald Garcia’s Social number. In Security November 1981 ordered appellant Garcia to Donald marry Garcia so that he could more to rob easily arrange Donald Garcia’s armored car. She married Donald Garcia on December 1981. had then Appellant developed with Edwards. relationship

Garcia met de Laet in November 1981. had then returned to the Appellant mainland. At his direction Garcia took the container in Styrofoam which the were guns to the Corte packed Madera Inn in Corte Madera where she met Garcia appellant. drove to the appellant Jack Tar Hotel in San Francisco. He asked her for the to the keys car and to the they went cocktail lounge hotel. left. She remained Appellant in the cocktail for about two lounge returned, hours. When Styrofoam was no in the package longer car. 29, 1981, She did not see the container but again, on December on the Road, at the university Grade one property Empire saw of the Datonic guns it had held. and Garcia then returned Appellant to the Corte Madera Inn. It late, but cocaine and using would not let Garcia sleep.

De Laet and MacVicar arrived the next at 11:00 or 12:00 a.m.. day “Bebe,” Hawaii, introduced Garcia as a name he had her in given but did not introduce Garcia to them. At that she did not their point know names. The three used cocaine and told them he could “some get talked, stuff.” really He ordered Garcia to leave pure the room while later, and when she returned about 30 minutes de Laet and MacVicar were *26 29, She next them gone. saw on December 1981. Cruz, later,

Garcia returned to Santa but two or three days ordered her to come to Millbrae. There he told her that two “snitches” had killed, Over the and in 200 feet of water.

been chained together, dumped room, he Garcia her next motel showed days repeatedly two knees, card,” of a to her and made her to “death forced her pray picture to call her at returned to Cruz. continued man. Garcia Santa again Appellant booth, holes dig and in a December call ordered her two telephone two sacks area in two bury purchase in remote which packages, Hawaii, buried drugs Because had often guns quicklime. of the holes she was to She dig. dug she assumed this was the purpose at Cruz Grade Road on of California Santa University holes off Empire 27, about December 26 or She was familiar with on or 1981. property the California Rescue Association Dog area because she was a member of Later, not there in the dogs and had worked her search and rescue past. was, at a shell lime oyster gardening what she knowing quicklime purchased called Garcia and before December Shortly garden shop.2 She to take him to the holes so could they bury packages. directed her 1. He did not give to meet him at a near doughnut shop Highway arranged her not to use she should wear or tell instructions what regarding He did not tell her that he was bringing anyone deodorants or perfume. him. 29-31,

2. December 1981. on December at the at 3:00 doughnut p.m. Garcia met appellant shop in his car. He that he had three other people It was She saw raining. 1981. Bronco. gave the car she was her mother’s Ford driving, Appellant came to told her that her were in one guns envelope. Garcia two He envelopes. her to her out because her house was other he money gave help selling. to the to take the with him told Garcia that he was going people

Appellant were holes. He would tell the where she dug people place in the at secluded shack Tony’s to meet a Mafia Tony, acquaintance, going He back to his own went money Tony’s woods and would bury property. de car, learned were and the two she later and returned with Weller people Bronco to the then drove in Garcia’s vehicle Laet and MacVicar. The group holes, a 15-minute drive. Garcia had dug location which check the that he and Garcia would told de Laet and MacVicar Appellant filled with water when he found holes site first. was angry bring He directed her to his directions. Garcia of to follow failing accused it buried. before was (MacVicar) money to the woods count the man for a search lean a tree against weapons had MacVicar She did so. Appellant the bodies of de Laet decomposition of quicklime would have hastened 2Industrial MacVicar. *27 MacVicar, by Garcia. While she was shot him. Garcia searching did not see him to do that. MacVicar to the and just ground prepare dropped when Garcia turned she a “a saw with with black gun long thing” him on the end. then ordered to Garcia MacVicar to one Appellant drag help holes, of the about 30 feet She away. was “scared to death” and complied. direction, At Garcia then returned the to Bronco and brought de Laet back. Asked at trial if she knew what was going point Laet, de Garcia testified that she so but did not remember happen thought what she was de thinking. shot Laet while Garcia Appellant was performing another search. de Laet was on the weapons gasping ground, appellant As shot her in the head a second time. He then directеd Garcia to Weller bring and the two sacks of lime to the site. When Garcia returned appellant directed the two women to dig holes and undress the bigger deeper, bodies, and and put clothing jewelry victims one green garbage another, their bag, clothing in a third. He was paper things holding what Garcia believed one of the Datonic firearms in his hand. Garcia barrel, it thought was a Datonic because it had a but conceded that shiny she would not know the difference between a Datonic shiny shiny Colt .45-caliber or other kind of gun. hacksaw,

Appellant produced that he was stating going remove heads and hands of the victims to identification. The broke. prevent hacksaw He used hatchet to task. were into a complete body fourth parts put garbage which bag, was left under a bush. told Garcia to Appellant return the next day hide that in a different bag location. He told Garcia heads and hands should not be found in the same area as the bodies. The other three bags were left inside just the barbed fence wire near the road for Garcia to pick up following day. Garcia was told to bum in the anything that was bags paper, on the put paint something before clothing of it so that no disposing one could use it if it were taken from the garbage, and to with the metal dump bag items into the ocean. told her Appellant she had better take care of this as he was having followed her family would be killed if she did not comply.

The bodies were covered with the lime and dirt. Brash was used to cover area. These events took between and three two hours. Appellant threatened to kill the women if talked and threatened to kill Garcia’s if she family did not his follow instructions. Weller, and Garcia

Appellant, returned to the doughnut where the shop, rental car had been left. and Weller clothes. Garcia had to changed take her shoes off. She also took off all of the clothes she was wearing *28 Weller, back to who was and a Her clothes were passed her jeans top.

except to the drove the Bronco direction Garcia the backseat. At in in the rental car. Weller He and Weller followed Dream Inn in Santa Cruz. her to call her mother and have a Garcia was told directed to room. get their hair women dried of shoes. The two Garcia new bring pair mother in the three waited from their While fingernails. cleaned mud and dirt and she tried room, Weller when snorted cocaine and slapped hotel appellant her, he beat accusing the bathroom He took Garcia into where to take some. he had stating on her wedding night her of having champagne drank alcohol. He her the next time she that the Mafia would kill warned her When drinking champagne. Garcia to Weller then ordered apologize arrived, and Weller to ordered Garcia spend mother appellant Garcia’s Inn, sent to being guard that Weller was at a Holiday saying night nearby made no Garcia morning. to return at the next were told 9:00 They Garcia. kill her and sure Weller would contact because she was effort to police did so. her killed if she family would have cocaine, still taking the next morning, appellant, When Garcia returned bathroom, her, brother and threatened to kill her beat shut Garcia in and. the bathroom for confined in children if she talked. Garcia was her sister’s At her brother’s life. her mother to save that time she During begged hours. left the motel. 1:00 all four p.m., murders, fence and reached through site of the

Garcia drove to the the bag containing there. She did not move the three left bags retrieved at the Del rented a room with fireplace drove to Monterey, She body parts. cards, includ- credit passports, papers, burned the victims’ Monte Hyatt, lime, and, threw the on the following day, held the the sacks that had ing near items, Monterey Bay the hacksaw into bullet casings, metal them, in clothing the victims’ she put After paint Row. Cannery putting she was did everything center. She in a Carmel Valley shopping trash bins and hands. take care of the heads told except events. Subsequent 3. he when until again February hear from

Garcia did not Garcia call him in Lаs Vegas. to have Garcia and told her called her mother room to his immediately come both women to ordered did so and even though come He insisted Vegas. Hotel in Las at the Riviera Vegas flew to Las her ankle. They and broken mother had fallen Garcia’s taking Hotel he was the Riviera where his room at and joined appellant she and a half. When for day the women awake and tried to cocaine keep told her He bloody. until her face was beat Garcia fell asleep appellant call he her brother would be killed and made a in which said: telephone now “OK, take of it then to sit outside the room. He care now.” Garcia was forced her hotel he beat her. took to the bathroom room where again him told that she was to to Minnesota with because there go he could do her alive. nothing keep Weller, Johnson, Dahl, (Johnson), Jim Sondra whom Sellinger Larry *29 before, had met met in Garcia the at the Minnesota. Garcia pair airport met had Jim Johnson in Hawaii. At the Johnsons’ apartment, appellant became with Garcia and ordered her to on her knees angry apologize killed, He “convict then admitted Garcia’s brother had not been style.” said it be she to he but would do if talked the Later became easy police. with Weller and angry beat Weller. ajid

Later, had to a Johnson’s drive him Garcia hotel appellant nephew mother, there, where stayed for two While Garcia called her days. Edwards, who told a found her skull had been near of University California at Santa Cruz took the and campus. Appellant phone sought details. and Garcia flew back to California. Her met them mother

outside Burlingame Hyatt Hotel. Garcia drove home with her mother to Soquel. Appellant and ordered Garcia to telephoned following morning come met Peninsula. She in his Millbrae hotel room where cards, he took cut of drugs, mixed and told Garcia the pieces paper, up queen card, the death was her spades, days, card. After two or three Garcia her, returned to Santa Cruz County. Appellant accompanied spent night home, more at her mother’s and then to the moved Inn Santa Holiday Cruz. When Garcia took her mother to a room because hospital emergency mother, cancer, clot, her who had a blood nonethe- developed less insisted that he needed Garcia as he was immediately having heart brother, father, attack. He threatened to kill her and grandfather, everyone in her if she did not come family immediately.

On March after her mother had left the on order hospital, Garcia went Inn. He told Holiday her he was member of the CIA and said that she since talked too there he do much was could to save nothing He her. handcuffed ankle he Garcia’s to her left hand and said right would off at her one time she lied he fingers if while her a lie detector chop gave He test. scissors to her and then her put eye vagina, as he exerting pressure cocaine, did so. He used forced her to take cocaine and threatened to hang her and her if upside down slit throat she did not take it. He burned her hair and said she had to be killed. He he were cyanide said in her mouth. put pills He released her after several hours. Keith the FBI her brother-in-law following day

Garcia went to and At trial family. to obtain for herself Geiger, attempting protection that all she wanted she denied so in order obtain doing immunity, saying and made for her herself. She family was to obtain from protection case was offered several statements the murder before regarding immunity Garcia has since had time of the 1982. hearing preliminary has Grundherr. to Donald Garcia annulled and married William marriage C. Other Evidence.

1. Diane Edwards. Edwards, mother, testify Diane ill and unable to terminally Garcia’s read to the That hearing testimony jury.3 at the trial. Her preliminary many Garcia’s regarding appel- was consistent with testimony testimony threats, domination lant’s activities in Santa Cruz Las his Vegas, Garcia, his amounts of large money drugs, abuse of possession *30 his that he affiliated with the Mafia. claims was the rоom at

On the December Edwards went to night appellant’s that Garcia called Dream Inn. Garcia had borrowed Edwards’s Bronco day. and another her at 7:00 or at said she was there with night, appellant 8:00 woman, to her some shoes. When Edwards arrived bring and asked Edwards Both had wet Dream that Weller and Garcia were there. night, the Inn hair, Garcia, not wet. asked “Does your but their was clothing Appellant not to indicated that she had spoken mother know When Garcia anything?” mother, remained there her was to wait in the bathroom. She Edwards asked At sums large 30 minutes. one Edwards saw Weller point putting about or water. She with alcohol money of cash She saw away. appellant wiping said cocaine. also half full of what was bag appellant saw sandwich into the bath- took Garcia At another time the during evening appellant to straighten he out told Garcia After some time came and room. Edwards face, on her crying. Garcia in the bathroom with welts Edwards found up. later and asked Edwards to her. help Appellant Garcia said she was scared he Finally gave and he to her in line. said Garcia had had keep that problems and to time good and directed them have money go Garcia and Weller When with to else. Edwards night appellant. somewhere stay spent Garcia to the took morning, and Weller returned the next appellant Garcia absence, Later, said in Garcia for a talk.” bathroom “disciplinary involving could talk about the without problem she scared but was to was “everything there no safe talk because rest as family place bugged.” testimony jury. was read to the day died a or two after her

3Edwards out the Dream Inn the Edwards following morning, When checked told about an hour with Garcia at Garcia’s home. Garcia again spent that but could not talk as someone was Edwards she was afraid to Edwards she said. listening everything to Las because she did not want Vegas

Edwards Garcia accompanied asked her with saw go Garcia alone Garcia her. Edwards go Garcia, cocaine and saw him appellant using abusing frequently, physically hit including threatening life. Garcia with his fist his hand. She She bleeding saw Garcia’s nose was and an was swollen shut. eye heard tell Garcia that he would see that her brother was from hung a meat hook and did cut small if Garcia not behave. up pieces (in

When told Minnesota) Edwards Garcia call to telephone skull been had found on the of California at Santa Cruz University campus Garcia, took from an phone expressed unusual interest “What the hell’s subject, saying, somebody doing up there hunting mushrooms in rain?” At Edwards appellant’s request, collected with stories about skulls and them newspapers gave to appel- Garcia, lant on his return to California. the ride home During Sequel Garcia told she Edwards if talked her would family be killed. While Edwards visited and threatened life. hospitalized, appellant Edwards’s 2. Sondra Johnson. *31 testified, Johnson,

At time she then in the confined federal correctional Pleasanton, in facility a federal serving sentence for a federal firearms violation concurrently with a Minnesota term to commit conspiracy unrelated murder of Thomas Carroll. had She in a with agreed bargain plea Minnesota and federal authorities to to authorities who wanted to speak her and be speak to to and about honest open everything.4 testified, Johnson under grant a that in the fall of 1981 immunity, wrote to Jim Johnson a an appellant about armed planned robbery car. armored Jim Johnson then tried buy to and make silencers for the guns silencer, He succeeded in one but did not a robbery. making complete 1981, second. In December early after a conversation with telephone appel- lant, Johnson told her there had been a in and rushed meet a change to plans new deadline for the silencer. told the Johnsons that he Appellant would pay bargain, 4At the time of the plea possible plea bargain she faced a life term for murder. The custody. was for no more than 67 state proceedings, months in In the federal she had faced charges, four with forty years, charges firearms а term as to maximum well as related dealing in cocaine. $5,000 after day and for someone drive California expenses and rented a car for him with Christmas. Sondra Johnson contacted Dahl 1981, 26, On December after receiving later reimbursed money by appellant. call, Dahl left the She did not see the gun Johnsons’ house. phone 5, 4 or After after he left. Dahl returned on 1982. again January silencer returned, Sondra Johnson saw two Datonic .45-caliber weapons Dahl also that Dahl she had not seen before in She saw another gun apartment. possessed. addressed to in

Dahl Sondra Johnson an Hawaii gave envelope that letter from Miami on in She mailed wrapped napkin. paper 10, reimbursed her for airfare and later thanked 1982. January Appellant her for matter. handling Weller, told in had Sondra Johnson mid-December whom Red,” Weller called the “Big coming

she knew as would be Minneapolis. number. Sondra flight before she arrived and told Sondra Johnson the night at the on December 1981. Weller stayed met Weller Minneapolis airport until When and Garcia arrived on Johnsons March. to be under totally Garcia had a black Garcia February eye. appeared job” boasted that he had fantastic control. Appellant “pulled California, be had two whose bodies would never found “killed people” Johnson saw been That Sondra they up. night appellant pull as chopped Weller while in the screaming Weller into the bathroom heard hallway bathroom with appellant. Weller or so after she arrived at the Johnsons’ apartment,

Two weeks and Jim Johnson the details of the California murders Sondra described would take Weller having knowledge and admitted advance place. kill of what she had witnessed. believed would her because was afraid of Everyone apartment appellant. Fox.

3. Gerda *32 Fox, of the and of a friend Johnsons Gerda a resident was Minneapolis, she, testified, of her immunity, Dale She under a grant knew Nelson. husband, of in a house he the Johnsons had been guests and met Garcia at that time. them the beach in She on Hawaii. provided at her In mail for Jim Johnson address. four or five weeks she received Every from “Mr. containing money received a certified package 1982 she January and the envelope Johnson was present opened Church” in Hawaii. Sondra home, 1982, in Fox’s Dale took Also in money. January from she which Fox and a duffel in a box bag supplied and Sondra Johnson packed Nelson the the of something sealed box. Fox was told item was had rid get left the and left the box her fast. Sondra Johnson with returned with package, for an hour and then returned and took the box Other evidence again away. established that this box contained a Datonic that Johnson tried to gun of. dispose

D. Law Evidence. Investigation Enforcement Garcia described false of her and the two imprisonment mur- appellant’s ders to the Cruz and Agent Over of Santa Office FBI when she Special met him on He Cruz brother-in-law March 1982. notified Santa Henard, law enforcement had County Investigator Sheriff’s who personnel. investigated the of MacVicar’s skull met discovery on Garcia February and Geiger at the FBI office the him same Garcia told about the day. bodies, murders and led Henard and other of officers to the location the which were disinterred the following day.

theOn same Henard in the day, first of participated interrogation appel- lant, had who been arrested Cruz Santa Inn after Garcia Holiday her, the murders and the reported assault a of retrieved packet cocaine in discarded made interview room. a taped statement to officers in he investigating which refused answer questions, evasive, and claimed have no of the murders in he knowledge which denied He claimed he in California at the time participation. of murders. At the time of his arrest had Quaaludes. blood traces of appellant’s His urine indicated that he Quaaludes had taken cocaine as as well within previous hours. 11, 1982, cocaine,

A March search of room hotel turned up $7,020 cash, set of small handcuffs. Numerous of snippets paper 11, 1982, were strewn A around the room. March search of Johnsons’ firearm, silencer, turned a box apartment a Datonic up containing silencer and a barrel. parts, gun Other firearms and narcotics also were seized. firearms, Datonic Firearms had no record of the Datonic two which company had consecutive serial numbers. This that the suggested weapons been manner, taken in an unauthorized such as theft or embezzlement. Peterson, Alcohol, Edward an the Federal Bureau of agent Tobacco Firearms, MacVicar, examined the .45-caliber taken from skull slug another found slug items the box seized in the Johnson nearby, residence, firearms, the two Datonic Colt a .45-caliber Commander pistol, .45-caliber barrel with silencer two silencers. He testified adapter, taken slug from MacVicar’s skull had the class general characteristics *33 abraded make

the Colt barrel but surface was so as to type, comparison better slug to individual firearm The other was in condition any impossible. of the barrel Both and also class characteristics Colt rifling type. displayed had residue them. The Datonics and the Colt were silencers gunshot with the silencer condition. Peterson substituted the barrel adapter operating firearms, silencer, all three on each of the three mounted the and test-fired three but could not match the to weapons, weapons. projectiles II

Defense Guilt Phase Case called did not Several defense witnesses were to Appellant testify. support not killed that was who MacVicar theory person defense appellant Weller, Garcia, and de argued testimony Laet. defense be in the murders should not believed. Sondra Johnson implicating appellant dealer, MacVicar, Laet to the The idea that an and de went drug experienced site a of million was incredible. Grade a dollars Empire bury quarter been There between the manner in which Thomas Carroll had were parallels Laet. killed Jim Johnson and the of MacVicar and de killing also was an whose accomplice testimony implicating Garcia argued Weller. had be corroborated and who could corroborate Murta, MacVicar’s, a an testified that MacVicar was

Glen acquaintance a He MacVicar after October 1980 dealer and drug gambler. stopped seeing a of narcotics. money consignment because he owed MacVicar Pierce Laet had an Warren Pierce testified de shared apartment wife, a He met and his Voss-Pierce. when Margaret a de De user. He also met man whose Laet. Laet was houseguest drug who a narcotics dealer. first name was “Bennett” had been convicted of conspiracy John state who Bradley, prisoner cocaine, friend. once had been a very good testified that MacVicar sell Ben- dealer who associated with MacVicar had been a large-quantity dope Cleff, San MacVicar also two nett another narcotics large supplier. designs which put graphic Francisco businesses—New Wave Graphics, sweatshirts, facili- and Party Dog, party T-shirts and stationery, postcards, tator, and novelties. rented favors party which Rochelle, Garcia, testified that Garcia of Donald a former roommate

Gary four for three or a boyfriend-girlfriend relationship Garcia had Donald have a loving relationship. before married. They appeared months

1249 Perlin, an James of visited her in Garcia who Hawaii acquaintance 1980, testified that be Garcia to in a appeared loving relationship appellant. husband, Grundherr,

Garcia’s at new William testified that he met Garcia class in dog training saw on two later occasions May California training classes for the Rescue Association. She never men- Dog tioned until arrest. In while working November his dogs, Grundherr saw Garcia near the Grade (from Road site Empire the shot). which victims were taken into the woods and Later he was his on the working of California at Santa Cruz dogs University when campus he saw sheriff’s searching bodies. He identified himself as deputies member rescue as dog association and a reserve offered deputy His at the help. presence scene was a coincidence. Officers who were at scene testified that Grundherr assisted them and that handlers were dog never left alone.

A testified he exhumed the of pathologist Thomas Carroll on an body Paul, island River south Mississippi of St. Minnesota. Carroll died back, from five gunshot wounds to head and four of which were skull, face. Blunt to the injuries it and possibly disfigure identi- prevent fication, had been inflicted after The death. face and shoulder were covered lime, with hydrated not which is caustic and helped preserve body.

m Guilt Phase Issues seeks reversal of the Appellant of conviction of judgment murder on nine He grounds. does not of challenge convictions false imprisonment, assault with a deadly of cocaine. In each weapon, possession assignment of error he that was denied a fair trial due as and/or process .asserts of result the challenged trial court rulings. We address his claims in the order presentation.

A. Venue. Change of moved for of venue at the of his change arraignment time in the superior court. motion was based on extensive countywide media, radio, in the publicity television print regarding discovery remains, the victims’ the arrest of events. appellant, subsequent Appel lant noted that the media had disclosed highly information which prejudicial trial, would be admissible at the fact that had been including that he had insanity, of a homicide Oregon grounds acquitted prior *35 Minnesota, in and that the chief prosecu- been of murder acquitted charge The that if trial agreed tion witnesses had lie detector tests. trial court passed motion, commence be to at the time of the of venue would change were the to The court nonetheless denied motion without prejudice appropriate. trial, the of as there was less stating renewal closer to time that time went by County. likelihood that could not receive a fair trial in Santa Cruz 3 of voir dire The motion was renewed 18 months later after almost weeks that, of after the Two months jurors. appellant supplemented prospective materials current reflecting publicity motion with additional supporting selection, trial, of the and then recent about commencement jury appellant’s the trial In the day began. denying The motion was denied before marriage. the commented that while there had been exposure pretrial motion court the the less than court publicity, many prospective was exposure anticipated, case, knew the and the court had the selected jurors nothing about passed the for cause because the was satisfied that selected jurors jurors judge be Those had been recalled publicity would fair. who exposed pretrial case, little the would the had formed disregard publicity, about very as or innocence. guilt opinions appellant’s criminal case change A trial court must order a of venue for trial of a on the defendant “when it that there is another motion of county appears held the that a fair and trial cannot be reasonable likelihood impartial 1033, (§ (a).) subd. The defendant bears the burden of proof county.” be impartial. the chosen such fixed cannot opinions have jurors 751, 475, (1995) 11 505 P.2d v. Sanders Cal.4th 905 Cal.Rptr.2d (People [46 420].) that, it because of likely pretrial

In whether is determining reasonably the court trial cannot be held in the trial will county, a fair publicity, consider, the nature and extent of the the nature in addition to publicity, offense, and the status of the the size of community, gravity (1992) v. 3 the victim in the Pride community. (People defendant and 636, 643].) 224 833 P.2d On appeal Cal.4th Cal.Rptr.2d [10 reason- that the was error because it was ruling must demonstrate be and that the error that a fair trial could not had was likely prejudicial ably denied. The court reviewing independently because a fair trial was fact of must the trial court’s determination the record and sustain reviews evidence. is substantial ultimate fact if determination supported 132, 976 P.2d (1999) v. Hart 20 Cal.4th Cal.Rptr.2d (People [85 683].) review, we are that substantial undertaken that satisfied

Having of Santa Cruz of the trial court. ruling population evidence supports 200,000 trial, the time of the but the under selected County jury from of Cruz County, many both rural and urban areas Santa prospective did not subscribe to the Santa Cruz which had the heaviest jurors newspaper of had events related to murders. Several coverage jurors prospective to the county moved after the others had no recollection many murders about or Few reading coverage television news about them. seeing who did recall the jurors initial remembered prospective publicity anything other than the fact that the bodies been found campus university. Few were aware from media reports potentially prejudicial and inadmissible evidence Min- regarding acquittal of prior *36 nesota murder not of charge of the reason verdict in the guilty by insanity prior Oregon The record fails to prosecution. assertion support appellant’s that the was influenced the to the judge by county cost of a of venue change and the that the jury was tainted cost of the trial to the pool necessarily by because three other murder had county high-profile cases been transferred to other counties for trial. the When initial motion was denied without preju- dice, the indicated that were he judge satisfied that fair trial could be not held in Santa Cruz he would the motion the County, grant notwithstanding cost to the And voir the dire of did not county. jurors prospective suggest seated had any of or had the the juror any considered cost to knowledge of county let alone bias from such That trying appellant, any arising cost. one believed that hundreds of prospective juror calling prospective jurors from whom to select twelve was a waste of their and only time taxpayers’ does not money support appellant’s premise. serious, the

While offenses were that factor is not v. dispositive (People (1992) Howard 1315]), 1 Cal.4th 824 P.2d Cal.Rptr.2d [5 factual, and the print television media articles were inflammatory. not There nowas sensationalism fact the beyond heads reporting hands had been removed from the bodies. Much occurred publicity almost three before years selection in of jury began August 1984. Passage initial, time since the weighs of heavy publicity against change venue. Pride, v. supra, 225.) 3 Cal.4th at (People the victims were p. Appellant to the Thus strangers was much more community. press coverage than is often the sporadic case when the victim is a local prominent resident. The trial court did not err in the motion for denying change venue. Neither nor the small size of the publicity reasonably was community to, did, and neither in a likely result from which could jury pool not select a number of unaffected He not jurors did publicity. who at the At the time guilt for cause sat jurors phase.5

challenge denied, his had not carried the motion for of venue was change fair could that it that a trial reasonably likely burden of demonstrating Moreover, detail be Cruz as discussed more County. had Santa below, the record does not establish to prejudicial juror exposure publicity trial. either before or during

B. Misconduct. Jury Cruz to reach a County

After Santa unable jury penalty and a had been declared as to penalty phase, appellant verdict mistrial had that Juror C. admitted Nancy moved for a new trial asserting Wynn counsel, defense his guilt prosecutor investigator, phase read a article about the trial that included highly had Wynn newspaper that the court had ruled was inadmissible. Wynn information prejudicial admonition and had disobeyed also claimed that other the court’s jurors learned this from the media. information further into failing that the trial court erred in inquire asserts *37 of the court’s admoni- of misconduct—violation

allegations juror repeated the the trial during tions that not read or listen to news accounts of jurors further that the court erred in his denying trial. He contends guilt phase that that the misconduct motion a new trial on misconduct in predicated the do not reversal of We was inherently prejudicial, requiring judgment. abuse of failed to substan- present There was no discretion. agree. Appellant for new tial evidence of misconduct in of the motiоn jury support competent trial, the on offered with the motion itself or at the motion. hearing either He and, the trial motion declarations the new only hearsay papers supporting of the trial that the court ruled at the new motion evidence hearing when did statements was inadmissible hearsay, the content of out-of-court Wynn’s evidence. not seek to additional present that trial believed may the have judge We therefore reject any suggestion an and that should he to conduct we evidentiary hearing lacked authority discre- the court to exercise its remand case the trial court to permit the to a juror of time did not clearly calling tion. The state the law the prohibit at an misconduct testify who had refused to execute an affidavit regarding he he believed suggests the said nothing judge evidentiary hearing, Moreover, record that the judge the hearing. suggests could not hold such by is jurors publicity were not affected 5That selected satisfied only challenges allotted peremptory 13 of the 26 appellant’s further exercise indicated 106, 610]; 324, (1991) P.2d (People Price Cal.Rptr.2d 821 1 Cal.4th 393 [3 defense. v. 906].) People (1991) Cal.Rptr. 802 P.2d Daniels Cal.3d 853-854 [277 v. had no evidentiary hearing reason even consider an because ordering on the initially submitted misconduct issue record made juror in the did not to call Juror did not ask for moving papers, attempt Wynn, hearing, sought and never evidence other separate evidentiary present than, defense about the possibly, testimony by investigator counsel his content of out-of-court statements to them. Wynn’s

1. Misconduct Allegations. new trial motion news accounts Appellant’s alleged that trial during referred to to his frequently appellant’s prior history particular in two murder trials to his incarceration at acquittals prior Leavenworth that, federal also asserted in the penitentiary. during motion interviews with defense counsel and his investigator, Juror had Wynn Nancy admitted reading such news accounts and from them about learning appel- record, lant’s criminal had stated that she became aware from statements made that Juror Hawley Norlene was aware that had “mur- Leavenworth,” dered” before and had “met Jim Johnson at and had said that other jurors also about knew criminal He history. also asserted that Wynn had stated that eventual had Jury Harvey Foreman Solomon made statements indicating violation of court order that not discuss the jurors case with outside court and had persons proceedings, made statements which indicated that he formed an as to before all of opinion guilt evidence had been presented.

The motion for new trial was written statements supported by from defense counsel and the investigator, neither which executed under 25, 1985, penalty Jon C. On perjury. Minsloff stated: February after *38 declared, mistrial had been Investigator Kevin Love interviewed The Wynn. information she disclosed led to a second interview Minsloff and Love on 5, 1985, March at time which stated that she read Wynn had stories in news trial, the Santa Cruz Sentinel during the as “It was too to not want tempting to read about the case.” As a she result was familiar with appellant’s prior record, criminal his including two trials for murder. It was previous apparent to that Wynn the Hawley was same articles because reading of timing the articles and comment deliberations Hawley’s during guilt that phase Leavenworth, met Johnson at that had it “done twice “[tjhis and before” isn’t the first time it.” he’s done that Wynn believed most had been jurors of the trial the reading during accounts trial. newspaper saw Juror Ed the Wynn always of San Wagner carrying Jose copy Mercury the and during trial his during comments deliberations made her he sure was about the reading Wagner case. Both and Juror Clarence Hedrick stated the during that “We’ve penalty phase got to him now. We can’t let stop him it had the nickname with Foreman Solomon away again.” acquired get as teachers at school a result of ’em from fellow “Hang High Harvey” session). not in (on about case when the court discussions the was Fridays (the that met district Minsloff also stated he with Madeleine Boriss deputy on September the Santa Cruz attorney County prоceedings) who prosecuted 1985, 12, that her this Boriss told Minsloff she and advised information. and had related the same information Wynn had also interviewed Wynn 17, 1985, On Minsloff all gave about misconduct Boriss. September jury in a at meeting the to District Arthur Danner III Attorney information 1985, District Jon E. Attorney Hopkins Danner’s office. In October Deputy Dennis (who Investigator the Stanislaus County proceedings) prosecuted 31, 1985, in her home. On October when Minsloff and Wynn Clark met with that no circumstances would Love met with said under again Wynn, Wynn matters had discussed. submit an affidavit the she regarding she 21, he on February Love stated that when interviewed Wynn Investigator 1985, Boriss said that on District Wynn February Attorney Deputy her told would an affidavit. try get sign had Love probably told Love that it asked Boriss that would why thought happen, Wynn When believed Wynn conduct of the the trial and because of the jury during was the described had read accounts trial. Love jurors during several newspaper 31, 1985, 5, 1985, much Wynn, interviews as the March and October with Attor- His asserted that Boriss District Minsloff did. statement Deputy 17, 1985, had E. been Joyce Angelí present during September ney Danner, during had said District that Boriss meeting Attorney Boriss that read newspaper had admitted to meeting Wynn Wynn the trial. articles about case during avoided Juror Ida C. she Murray submitted affidavits by People refer trial or heard anyone publicity

all and never saw during publicity matter about that was presented about case mention any trial, when, information after in the courtroom. She about present Minnesota, infor- Oregon with the law difficulties prior trial, revealed to the She been jurors. mation that had not presented during not heard these matters discussed by juror pendency when it was revealed who were jurors present the case and other *39 by jurors referred to other Foreman Solomon was never expressed surprise. in or out never made statement Harvey.” any ’em Juror “Hang High Wynn as back- the case or of indicating any knowledge of the ‍‌‌‌‌​​​​​​​‌‌‌‌​​​‌‌‌​​​​‌​‌​‌‌‌​​‌‌​​​​‌‌​​‌‌​‌‍courtroom breaks by and because courtroom Wynn spent in court ground presented herself, extra-deliberation been able comment on would not have as Wynn as well as Murray. conversation stated that in a

A declaration Assistant District Attorney Hopkins 26, 1985, Juror at which Clark interview with September Wynn Investigator stated that she had not read articles Wynn any regarding present, the trial. assumed that other had done so because during She jurors ” all stuck and the men all so ‘macho.’ Juror Bonnie “they together were Brofft stated her declaration that she never heard in or out of any juror court the trial or during during deliberations make reference to jury any or to information about the case not at trial. Jurors publicity presented commented almost felt “out of touch” from not daily reading or TV news. She never heard the term ’em newspapers watching High “Hang used of the trial. Harvey” during pendency motion,

The trial court denied the new trial that the evidence ruling offered to establish misconduct was inadmissible hearsay.

2. Adequacy Appellant’s Showing. A new trial be may when receives granted jury any evidence out of court other than a view of the scene or if the has jury engaged misconduct 1181, which has fair and due prevented (§ consideration of the case. subds. 3.) 2 &

When allegations of misconduct made in a juror criminal trial raise a limited, presumption court is not it prejudice, as would be in a civil case, to consideration of evidence affidavit or presented by declaration to resolve whether a new trial motion should be The court granted. may conduct an at which evidentiary hearing, to determine the jurors may testify, truth of the if the allegations court concludes is this to resolve necessary material, (1990) issues of fact. disputed (People v. 51 Cal.3d Hedgecock 414-419 795 P.2d Cal.Rptr. [272 an (Hedgecock).) “Upon inquiry 1260] verdict, as to of a validity any otherwise admissible evidence bemay made, conduct, conditions, received as to statements or events occurring, room, either within or without the jury of such a character as is to have likely influenced the verdict No evidence is admissible to improperly. show statement, conduct, condition, effect of such or event either in upon juror him influencing to assent tо or dissent from the verdict or concerning Code, 1150, mental (Evid. which it was processes by determined.” subd. § (a).) misconduct, When a trial court is aware of possible the court “must juror ”

‘make whatever is to resolve the matter. inquiry reasonably necessary’ so, however, (Hedgecock, supra, 417.) 51 Cal.3d at It must do when p. only the defense comes forward with evidence that demonstrates a “strong possi (Id. 419.) misconduct. bility” prejudicial p. *40 is not sufficient to the court’s

Normally, trigger duty hearsay A similar claim was make further into a claim of misconduct. inquiries juror 692, (1991) in Cal.3d 618 809 P.2d made v. Cox People Cal.Rptr. [280 351], statement the had offered to submit both the unsworn where and a affidavit the investigator’s recounting juror’s defense juror We found statement to the misconduct. investigator regarding alleged juror in the trial court’s denial of the new trial motion no abuse discretion little, that the court if justified according without hearing, noting (Id. credence to the assertions the would not at juror verify. pp. any, 697-698; 419; see also 51 Cal.3d at v. Williams Hedgecock, p. People supra, 834, 221].) (1988) 45 Cal.3d 756 P.2d 1318-1319 Cal.Rptr. [248 Cox, Here, in contrast to v. 53 Cal.3d the evidence supra, only People offered in misconduct claim were statements juror support statements Juror No Wynn. Minsloff Love out-of-court regarding by statement, unsworn, sworn or of Juror herself was offered. court Wynn re had before it evidence that the misconduct Wynn assertedly competent counted to defense counsel and his did not occur. investigator circumstances, the did not abuse its discretion in denying In these court motion further into the claim of misconduct.6 jury new trial without inquiry Evidentiary Hearing. 3. Failure to Conduct find to conduct an failing evidentiary We no abuse of discretion Defense counsel offered that further nothing suggest inquiry by hearing. In his into the misconduct claim would have been court productive. motion, to the to the new trial written reply People’s opposition and the that information in the statements of defense counsel conceded be excluded on objection was inadmissible that would investigator hearsay He that counsel and the would investigator testify, stated by People. the “technical” He now that he thereby thereby answering objection. argues an intent to offer at the on the new trial motion. indicated evidence hearing and Love have testified had interviewed only Wynn Minsloff could not establish had made them. That would testimony and she statements to misconduct. moreover, heard, defense counsel did not seek to

When the matter was have been to call his In fact would investigator testify. testify involving Wynn prosecution sequence from the of events 6Appellant infers juror’s When a regarding jury to execute an affidavit misconduct. responsible for refusal an prosecutor, interference unwillingness impermissible to do so is the result of juror may be reciting hearsay statement of statement or a declaration unsworn Cox, (See may People v. hearing juror questioned. at which the be sufficient to warrant 698-699.) impermissible such interfer supra, pp. The record fails to establish 53 Cal.3d ence, however.

1257 as there was no that Juror had made unnecessary statements to dispute Wynn All, Minsloff and Love. the trial that the cred including judge, recognized of not counsel or the The ibility Wynn, issue. issue was investigator, not whether the statements of Minsloff and Love were but hearsay, whether evidence of the content of Wynn’s out-of-court statements would be admissible. The court excluded evidence of the content the statements as hearsay, thereby that the impliedly ruling hearsay exception 1230),7 Code, for statements (Evid. interest against penal which appellant § did argued applicable, apply.8

We cannot with Justice Mosk that the agree court had before it “evidence” of misconduct or that the juror an through People, adoptive admission, admission or judicial conceded as much. from inadmissible Apart that Juror hearsay Wynn and refused to assertedly repudiated verify, court did not have before it “evidence a demonstrating strong possibility misconduct,” juror (Dis. as the prejudicial dissent contends. post, opn., pp. 1293, 1295, 1296.) We do indeed assertions in the distinguish hearsay declarations of Minsloff and Love from the declarations submitted by that denied People Wynn’s claims of misconduct other by jurors. declarant jurors themselves executed the latter. Wynn refused to sign any declaration, and the double recitation hearsay of Minsloff and Love regard Borriss’s ing statement regarding statement had Wynn’s even less eviden Indeed, value. tiary of the People statement disputed accuracy attributed to Boriss and offered to obtain a declaration from her about that assertion. there

Clearly was no admission of adoptive statement Wynn’s alleged regarding own and other conduct. The jurors’ rule does not hearsay bar evidence offered against who has admitted the party truth of the hearsay statement. “Evidence of a statement offered is not against made party 7Evidence Code section 1230: “Evidence by having of a statement a declarant sufficient knowledge subject is not made by hearsay inadmissible rule if the declarant is statement, unavailable as a witness and the subjected when made . . . so far him to the risk of civil or liability criminal . . . that a reasonable man in position his would not made have the statement unless he believed it to be true.” For purposes argument, of this defense counsel Wynn assumed that would be unavailable either because she could not be called and forced to testify or because she would right against invoke her Fifth Amendment self-incrimination. Code, 240, (Evid. (a)(1).) § subd. 8The trustworthiness against penal statement assumption interest lies in the declaration is contrary so to the penal declarant’s that the interest statement would not be by made (1990) a reasonable person (People unless true. v. Gordon Cal.3d 50 1252 Cal.Rptr. 251].) P.2d The prosecutor argued [270 that the record did not make it Wynn evident that was on notice that agree. her statements would constitute misconduct. We Nothing in the suggests record that when she made her statements to defense counsel and the investigator Wynn misconduct, violating was aware that the court’s admonition was let alone offense, a serious either a contempt as or a misdemeanor violation of a court order. There was discretion, therefore, no abuse of ruling exception that the did not apply. one of rule if the statement is which hearsay party,

inadmissible by thereof, or other conduct of the content has words with knowledge Code, 1221, (Evid. italics his in its truth.” his adoption § belief manifested to the added.) hearsay that this admission exception Even assuming adoptive circumstances, we find no although authority rule is in these applicable *42 case, the in a criminal at no invocation of the rule against People supporting Love made to Minsloff and time did the the statements Wynn People adopt Quite their the offered evidence contrary, they or manifest a belief in truth. recital untrue. mere to demonstrate that those statements were “[T]he an does not constitute necessarily of another’s statement description normally another’s declaration is of it: statement describing adoption ‘[A] the other. One does as an admission of the fact asserted by not regarded of the of relating he or describes reason merely by admit recounts everything [255,] 1055].)” (1 P.2d [(1940)] 15 Cal.2d 262 (Estate it.’ Gaines [100 of Rule, 650, 636.) Witkin, 1986) (3d ed. The Hearsay p. Cal. Evidence § and Love did not come statements to Minsloff hearsay Wynn’s did not concede that the to the rule. The hearsay People within any exception of misconduct sufficient statements was evidence content of hearsay that the statements the court. contended They to warrant further inquiry by further insufficient to justify any inadmissible and were hearsay were inquiry. the issue of admission resolved by

Nor there judicial People acknowledged At most People had admitted misconduct. whether Wynn had made statements contradictory representatives that Wynn dissent, of the that acknowledgement to the view Contrary People. juror admission issue whether removing did not constitute a judicial concession or stipulation occurred from the case. There was misconduct no. “ matter effect, of the truth of a no ‘conclusive concession to that and thus ” issues,’ the case in as was effect of it from removing which has the 1], (1978) 82 Cal.Rptr. E. Heller & Co. Cal.App.3d [147 Smith v. Walter on and elsewhere There the the dissent relies. party pleadings on which an issue in the case. facts that resolved had conceded the record specific to consider the content discretion in declining court did not abuse its trial in deciding made Juror Wynn statements allegedly the conflicting assertion of juror into the further inquiry to conduct whether misconduct. offered sum, the dissent that appellant the assertion of

In notwithstanding Love, of Minsloff knowledge facts within personal to present Minsloff could have testified and Love The facts to which did not err. court had made statements and that she to Wynn were only spoken to them. to that effect would have been irrelevant to issue Testimony hearing misconduct the decision of juror undoubtedly explains defense counsel to submit the matter on the on file. papers

It has also been that because the court not have understood suggested may that it had the an to conduct we should remand authority evidentiary hearing, this case to the court to decide whether a should be held. permit hearing

We reject that the court abused its any suggestion discretion failing hold an or that the court not have realized that it had evidentiary hearing may discretion to hold an at which Juror could be evidentiary hearing Wynn called to Whether an testify. should be held never arose. evidentiary hearing The court ruled that evidence content of out-of-court state- Wynn’s ments was inadmissible The defense made no to call hearsay.9 attempt Wynn *43 motion, at the on the new trial hearing did not ask for a on whether ruling that would be and did not seek a further permitted, No offer of hearing. proof end, was made. No admissible evidence was In the counsel did proffered. what he had just done He the “initially.” submitted matter on the moving additional oral papers, adding only argument.

The record does not a conclusion that the trial support court failed to order an because the evidentiary hearing believed in this trial judge pre-Hedgecock that the court was bound the then recent (1982) v. Scott holding People 129 Cal.App.3d 308-309 Scott held that Cal.Rptr. jurors [180 891]. could not be at an questioned about matters as to which evidentiary hearing the had refused to jurors execute made affidavits. a statement prosecutor at the Scott, hearing may have reflected belief that his v. People supra, However, governed.10 as the Cal.App.3d Scott dissent had pointed out, there was and contrary authority, counsel had asserted earlier appellant’s in his moving that the case papers law was in conflict as to a whether defendant could a at a compel juror testify had stated hearing. Appellant view, my 9The court ruled: “In you the evidence offer which here to show misconduct on part juror, the of the Wynn, Miss is not admissible content evidence and that is because of the rule, hearsay and I don’t find applicable hearsay ruling to the exceptions rule.” The appellant’s refutes claim that only the court ruled that the declarations were inadmissible and did not consider investigator testify whether counsel and the should be allowed to about what declarations, i.e., Wynn said. It ruled that the evidence of “content” of the evidence Wynn had said newspaper she read the trial past, articles about and the defendant’s hearsay. inadmissible arguing 10In that appellant had not met his burden since the statements offered were hearsay, prosecutor the stated: “I think it totally would be a different matter if we were can’t, bring juror entitled to a and put agree them on the stand and I the rationale that we actually but if we in front of opportunity someone us and the Court had an to evaluate demeanor, occurred, credibility their and actually whether misconduct had it be a would different matter.” Juror “out of Wynn in his that he had not moving subpoenaed respect papers that, if the court ruled that she and consideration.” he also stated Although issued, immune, he did not the matter bring up a would be subpoena trial motion on the and later submitted the new again, papers supporting the motion. opposing should have realized that still

In that the trial court suggesting as a witness at the hearing on his to call Juror ruling right Wynn expected trial, the court. As the dissent too much from on his motion for new expects above, trial on the motion for new hearing noted outset matter, i.e., motion, on stated that he would submit that submission for just The court was entitled to moving accept papers. entitlement to a it to be—a new what appeared stipulation The moving trial would be decided on the basis of moving papers. papers authorities, motion, and the declarations were the supporting points their declarations. That those papers supporting People’s opposition he could call have asked for a on whether ruling appellant may “implicitly” from the at an does not detract evidentiary hearing Juror as witness Wynn held, he fact that motion was hearing incontrovertible when for a on whether ruling abandoned or even any implicit express request on the moving could be called he submitted matter papers. when Wynn to call an and the hearing right If nonetheless wanted evidentiary that clear. The trial it incumbent on him to make as Witness was Wynn on the matter was submitted was entitled to take him at his word—the judge *44 alone. papers testifying the of Wynn’s

After a brief which argument, during possibility mentioned, the content of Wynn’s the court ruled that evidence of was not inadmissible as to which no exception applied statements was hearsay Thus, on this record for an the trial motion. there is no basis denied new an because evidentiary hearing that the trial court failed to order inference court’s was based ruling only he could not do so. The believed judge counsel. Since offered defense by nature of statements hearsay for a ruling abandoned the Wynn, request defense counsel did not subpoena so, further or indicate hearing did not a evidentiary on his do right request and, in the be at such a hearing, would offered admissible evidence there on the moving trial motion papers, end submitted new simply an evidentiary to consider the holding no reason for the judge possibility to do so.11 failing no abuse of discretion and there could be hearing trial is so completely on a motion for new A trial court’s ruling disturb the a court will not reviewing that court’s discretion that within 11 timely raising juror misconduct issue in a foreclosed from Appellant would not be (§ 1473.) has been obtained. juror evidence of misconduct corpus petition competent habeas if

1261 abuse of that discretion. (People absent a manifest and unmistakable ruling 529, 312, 811].) 851 P.2d (1993) v. 5 Cal.4th Delgado Cal.Rptr.2d [19 This is not such a case.

C. Admission Evidence. in admitting contends that the court erred evidence

Appellant about his and his Mafia and CIA connections. dealing purported drug

“A verdict not be set aside on the basis of the erroneous may error has admission of evidence . . . unless party asserting preserved evidence, the admission of the by question timely specific objection (1988) or motion to strike or exclude the evidence.” v. Williams by (People 395].) 44 Cal.3d 751 P.2d objection Cal.Rptr. [245 “[T]he must be made in alert the nature of the such as to the trial court to way evidence and the basis on which exclusion is anticipated sought, (Ibid.; afford the an to establish its see People opportunity admissibility.” Code, also 353.) Evid. § states that he made a in limine motion to pretrial

exclude at the evidence of his statements to have Mafia guilt claiming phase and CIA connections and his statements his deal regarding drug purported and other crimes. He did ing not. record reflects instead a motion only 6, 1984, filed on August introduction of evidence of prohibit appellant’s criminal to enhance history witnesses or credibility prosecution substantiate their claims of duress. No reference to statements Mafia, CIA, his regarding and Teamsters connections either ex appears inference in motion. pressly drug dealing Appellant’s purported was not mentioned. The motion refers to the two homicide only prior introduced, which the his acquittals, would not be People stipulated criminal ex- convictions” and his criminal “prior “prior history (robbery, firearm).” felon with a *45 however, 17, 1984,

When the motion was heard on defense August counsel referred other to mention of issue with cryptically respect “[t]he Mafia, C.I.A., crime, cetera, cetera, et et I think is more organized appropri- ate to deal the with once have heard a you testimony portion made witnesses.” Neither the evidence to which have been objection may nor the basis the was made clear at this objection hearing. testified, trial of the before Weller defense counsel

During guilt phase, He had been raised said that the matter discussed subject again. only before, that he mention that Weller might “inadvertently prior anticipated conviction,”

criminal behavior client which resulted in and that he by my wanted it clear on the record that the witness had been cautioned not to mention the court that Weller had been those assured things. prosecutor homicides, not to mention the or Minnesota the federal Oregon admonished violations, firearms or that had been in and on appellant prison parole. then “I mention of the Mafia or Defense counsel stated: finally object any crime Ms. Weller or other He later witness.” organized by by any explained 352, the basis of the Evidence Code section objection, citing asserting that evidence of the statements was “extraordinarily inflammatory,” “highly remote relevance” since duress was not a defense to only prejudicial, crime. The trial court overruled the evi- capital objection, concluding Teamsters, dence that had said he had been a member of the appellant Mafia, CIA, and the and had been was relevant to engaged drug activity, of the witness. No reference to assessing credibility claiming however, he had been a “hit man” or had killed before to be permitted, and the would be instructed that the statements were true was whether jury on, not relevant and should not be focused as the issue was whether the witnesses were truthful. Defense counsel asked that the also give prosecutor the same instructions to Garcia. No further was made at the time objection Weller and Garcia testified. now claims that Weller and Garcia were to bolster

Appellant permitted their that he had committed other crimes. credibility by testifying uncharged He describes the bad acts evidence as evidence highly prejudicial prior character, inadmissible evidence of no was made on the although objection that this was character evidence not made admissible Evidence ground observe, Code sections 1101 and 1103. As the Evidence Code section People not sections referent. That section is proper permits to “consider in of a witness matter determining credibility jury the truthfulness of his that has in reason to any tendency prove disprove Code, (Evid. 780.) testimony.” § identifies in Weller that testimony by particular Mafia, Teamsters, CIA, he connected with the used the code

said was and that she he made his from Mafia living name believed “Penguin,” connections, his claim he to have CIA show- training, about testimony claim that he could her documentation of his and his training, ing purported Mafiawise, make and have followed. He also identi- things happen, people said he believed snitches should be fies Weller’s testimony he killed and Garcia’s said that testimony lawyer arranged on Mafia matters and to assist her with her divorce worked with appellant if drank alcohol or that the watch her and would kill her she Mafia would *46 cocaine use and He also claims that the testimony regarding used drugs. Laet, and of mari- of cocaine from de about appellant’s possession receipt excluded. should have been juana about statements

As is almost none of this testimony appellant’s apparent, made to the testimony related to crimes. No was uncharged objection cocaine and evidence actual of regarding marijuana, appellant’s possession the murders of de that relevant to the motive for and means which was Laet and MacVicar were accomplished. about

We see no that the understood the jury testimony appel- possibility Mafia, CIA, be that in fact had the lant’s statemеnts to evidence appellant and Teamsters connections that he claimed. from the evidence of Apart made, not, narcotics to which no the evidence was possession, objection claims, that as now evidence of bad acts. It was evidence appellant prior claimed to have underworld connections other appellant relationships The evidence was introduced to establish the effect of powerful persons. Weller, statements Garcia and not to suggest appellant actually Mafia, CIA, a member of or had connections to the Teamsters.12 jury Indeed, would have understood this. himself describes as “bragga- docio” the statements he now claims were character assassi- impermissible nation of through admission evidence of bad acts.

To the extent that now trial court erred appellant may argue that the value of the evidence its concluding outweighed probative prejudi- cial and was relevant to the of impact sufficiently Weller credibility admission, Garcia to warrant we The court did not err in disagree. overruling made on those Absent an objection grounds. understanding between Weller and Garcia and and the relationship women’s appellant, reasons for well considered continuing jury might have relationship, Weller Garcia about the murders of de Laet and testimony MacVicar and the about for and testimony appellant’s planning participation in those murders incredible. The evidence was relevant did not threaten undue on the now asserted. prejudice grounds

D. Denial Mistrial. that the court erred in motion for

Appellant argues denying that, mistrial made after Weller testified while in her Minnesota living after the Johnsons’ she had been told apartment leaving apartment, $25,000 out a her life. contract on put While decision talk to inves- being questioned regarding postarrest to. Weller was asked whether before so she had received threats tigators, doing 12Nothing say regard implies membership we in this that we share view that or connections to the CIA or the International Brotherhood of Teamsters is a bad act.

1264 from She testified that before her arrest had threatened to anyone. California, kill her if she ever said about what in and that anything happened $25,000 Sondra Johnson told her that there was a contract out on her for from The court sustained defense counsel’s immediate appellant. hearsay The that the statement for its objection. prosecutor argued offered truth but to that Weller show believed she had reason to fear for her life. The court nonetheless sustained the and advised the that the matter objection jury should be stricken from their minds.

The court did not abuse its discretion in the motion for mistrial. denying The of this not incurable The likely impact testimony was trial prejudice. court had admonished the Weller’s adequately jury disregard testimony that Sondra Johnson said had a contract out on Weller. The context and focus of the statement fear was that Weller’s appellant explained failure to crimes earlier. This report appellant’s testimony insignificant context, however, in in of the other light evidence of threats by appellant made to Weller and Garcia that directly he would kill them if mentioned Therefore, the murders to the court could anyone. conclude that reasonably for was so minimal that it any potential was cured the admo prejudice by nition (1997) and mistrial should not be granted. v. Hines 15 (People 997, 594, 388]; Cal.4th 1038 P.2d Cal.Rptr.2d People Rodrigues 938 v. [64 1060, 235, (1994) 1]; 8 Cal.4th 1154 885 P.2d v. People Cal.Rptr.2d [36 (1991) 290].) Wharton 53 Cal.3d 565 P.2d Cal.Rptr. [280 E. to Call Garcia’s Attempt Attorney as Witness. case, of the defense filed

During presentation attorney and authorities Garcia’s describing about the points testimony timing offer of her denial that she or of hers prosecution immunity, any agent her, for and her to an as to she needed sought immunity inquiry attorney why Garcia, it. He leave to call Garcia’s sought attorney arguing impeach Garcia had testified what was or was not said relation regarding during with without ship attorney, objection, thereby waiving attorney-client to the substance of her conversations with counsel.13 privilege by testifying He made an offer of that the to an proof attorney spoken attorney firm, defense counsel’s that he had told Garcia that she needed stating because she faced for first murder and the immunity degree gas prosecution “Subject except provided 13Evidence Code section 954: to Section 912 and as otherwise article, client, disclose, party, privilege this or not a has a to refuse to and to whether lawyer prevent disclosing, another from a confidential communication between client and if (a) (b) by: person is privilege privilege; is claimed The holder of the A who [H] (c) person privilege privilege; authorized to claim the holder of who was [^] lawyer at the time of the confidential communication . . .” . chamber, for immunity prosecutor and that he had negotiated *48 The court ruled that the trial court. by several months before it was granted the not be of the that would attorney there had been no waiver privilege, be to and that the would quashed. testify, subpoena permitted Code, (Evid. of the The client is the holder attorney-client privilege. is a the client counsel 953.) by and advice Legal given opinion § (1993) 5 Cal.4th (Roberts communication. v. Palmdale City confidential of 363, 330, 496].) The to claim the right 371 853 P.2d Cal.Rptr.2d [20 such is to a communication protected by waived “with privilege respect coercion, has disclosed if holder of the without privilege privilege, to of the communication or has consented such disclosure significant part made Consent to disclosure is manifested statement by anyone. by any the consent to indicating other conduct of the holder privilege disclosure, in failure to claim the any proceedings including privilege to claim the which the holder has the legal standing privi opportunity Code, (Evid. 912.) lege.” § reflect, and the record does not notice does suggest,

to Garcia that defense counsel intended to her There is attorney. subpoena in the record to that she had authorized the nothing suggest attorney discuss his her defense counsel in the manner the conversations with with claimed offer of had done. had no Garcia proof attorney opportunity assert the at the time counsel stated his intent to privilege appellant’s offer and has had no evidence subpoena attorney, opportunity regard Thus, an intent to her denials waive while ing privilege. only testifying trial in her or her her advised appellant’s anyone employ attorney criminal that she faced seek constitute a may should charges immunity waiver.

However, claims, as that Garcia assuming, and that disclosed a of the communication her significant testimony, part as to the immunity,14 was waived conversations privilege regarding error in to call the was not denying attorney leave prejudicial. specific 14A disclose the content disclosure that a communication did occur that does not (Mitchell Superior (1984) Court may privilege. of the communication not waive the v. 886, 642].) analogous Cal.Rptr. Appellant’s 37 Cal.3d 602 P.2d claim here is 691 [208 to that made in Mitchell. There the client had revealed through interrogatories answers to attorney; recognized that her revealed the topic she had discussed a with her we answers most, but, “at attorney-client relationship existence of the affirmed that she had discussed warnings way significant attorneys, part certain with her and in no revealed a of the substance (Ibid., Compa approval, Travelers Ins. italics.) original Quoting, of those discussions.” with 871], Superior (1983) nies v. Court Cal.Rptr. to the effect Cal.App.3d 444 [191 “ deep enough in enough scope ‘wide and. substance interrogatories that answers to must be ’ ” communication,” significant part we held in Mitchell to constitute “a Whether told Garcia she needed and had attorney immunity the district was irrelevant attorney guilt. negotiated on those would not have under tangential Impeaching testimony points mined her so as to affect the verdict or the on whether she credibility ruling was an as a matter of law.15 accomplice Use False Garcia. Knowing Testimony

F. In a claims that the knowingly related argument, appellant prosecution Garcia, usеd false him due and a fair testimony by thereby denying process *49 trial. The identifies as “false” are Garcia’s to statements answers when she received She “A. Before asking immunity. questions responded: the I believe in and “I ... it was just 1982” preliminary hearing, thought before the but I could be mistaken.” preliminary, claims the that Garcia had “stipulated” immunity prosecution that not much earlier and that other of her she did testimony suggested parts foisted on her the and that want that was immunity, immunity prosecutor, claims, he she made no effort whatever to “foment or facilitate it.” Again, the demonstrates the It does not. falsity testimony. “stipulation” is, fact, refers of a settled which “stipulation” part statement on the trial The in-chambers 1989. appeal approved by judge was one of the covered by discussion of the attorney-client privilege topics the that settled statement. The settled statement recites that discus- during sion, defense counsel asserted that the of Garcia’s would testimony attorney that did not seek and that the Garcia’s claim she immunity pros- impeach ecution it to her without her for it. asking gave the settled statement and find in the record nothing

We have reviewed establish either that Garcia testified or that the falsely prosecution would topic depth the occurred did not have the and acknowledgment that a communication on significant part of the communication and specificity necessary to constitute disclosure of 602-603, italics.) (37 original attorney-client privilege. pp. Cal.3d at thus did not waive the sought argument prosecution the find no merit in further because 15We immunity through anyone credibility testimony her that she did not seek bolster Garcia’s his state and federal anyone employ, associated or in her he was denied with whom she was did, to, right right Appellant was not denied the in fact constitutional to confrontation. right ruling challenges here did not restrict his thoroughly Garcia. The he cross-examine evidence to precluded only presentation It the of other confrontation and cross-examination. 408, (1992) (Cf. People Mincey v. 2 Cal.4th 463 impeach [6 on a collateral matter. Garcia 822, gave right defendant Eighth capital Amendments Cal.Rptr.2d 827 P.2d 388] [Sixth sentence, testimony lead lenient based regarding belief that would to cross-examine witness counsel, notwithstanding attorney-client privilege. Inquiry assertion of on conversation with witness.].) credibility and thus was directed to bias

1267 immunity that she received Her testimony to do so. knowingly permitted grant a court may false. Only not hearing the before preliminary on only do so may the court from prosecution, immunity transactional (1989) Cal.3d 1324; v. Hunter (§ People of the prosecutor. written request been 608].) immunity Even if P.2d Cal.Rptr. 973 [264 immu court earlier, granted it when only she received actually offered is not undermined conclusion examination. Our before nity preliminary or of her offer to seek inaccurate description in any way by prosecutor’s in the record Nothing of immunity. for Garcia as grant insist on immunity understand either prosecutor’s reason to that Garcia had suggests to refer to of her on cross-examination asked or the questions question asked rather than to what expressly to seek immunity offer prosecutor’s immunity Garcia received direct, immunity.” did receive you “[W]hen it. the court granted when only when she, idea of initiated the to Garcia’s testimony prosecution,

As statement, the settled as reflected in argument, immunity, prosecutor’s establish, let alone not suggest, The record testimony. Garcia’s supports doe.s use of false testimony by prosecution. falsity knowing *50 Procedures. Unnecessary Security G. for main officers responsible from law enforcement hearing

After County in the Santa Cruz while he was confined taining custody defense objection, trial court over and for court security,16 permitted, jail Security entered the courtroom. provisions of all who screening persons wand, of outer cloth detecting use of a hand-held metal patdown included courtroom locking for weapons, examination ing, bags purses door, additional in the courtroom with two an extra deputy positioning selected, screening Until a jury outside the courtroom. deputies voir en masse for a hardship often included who prospective jurors appeared dire. At that time prospec individual voir dire in advance of sequestered identification badges Cruz were not County given tive in Santa jurors be from the general public. therefore could not distinguished failing require the trial court erred now contends that justify courtroom security law enforcement officials responsible examine them regarding in which he could measures at a security hearing be em- these measures should their belief that based they facts which security these “extraordinary” precautions his claim that He repeats ployed. attorney of the district investigators from the office security as well as personnel 16Court might escape and for the judge. Concerns that the sessions with the trial attended security expressed. Extra were security allegedly had been threatened of witnesses who attorney’s office. by the district requested that he was implied dangerous him a fair frightening, thereby denying trial. Instead,

The record fails to the latter support claim. it that suggests those who prospective jurors were about the questioned voir dire subject during idea, viewed it as a routine like that at an procedure airport, good that case, indicative there was or a something important “big” “severe” (not and made some persons feel like criminals. necessarily jurors) No prospective juror voir dire about responses during either their reactions own or those of other whose persons comments overheard concern expressed that be appellant might dangerous. Those who at all speculated thought the security be due to might danger from persons entering courtroom as No spectators. juror who sat on the actually case is identified as being who believed that the person were instituted security precautions because the and, concedes, defendant was dangerous as once the jury was selected the were no jurors to search. longer subjected

Neither due nor other process constitutional of a criminal right defendant mandates a on the hearing for courtroom or necessity courthouse security. Appellant’s the courtroom attempt analogize measures security he which complains and other restraint of a shackling defend physical ant, and his reliance on related to authority is practice unpersuasive. Both this court and the United States Court have Supreme recognized courtroom, the use of security even in the personnel, is not so inherently that it must be prejudicial a state interest justified by to the trial. specific “The chief feature that the use distinguishes of identifiable officers security from courtroom we find practices might inherently is the wider prejudicial of inferences that a range juror from the might reasonably draw officers’ *51 While presence. shackling clothes are unmistakable prison indications of the need to a defendant from the separate at the community large, presence at a defendant’s guards trial need not be as a that he is interpreted sign or particularly dangerous Jurors as culpable. may just easily believe that the officers are there to guard against from outside the disruptions emanating courtroom or to ensure that tense courtroom do not into exchanges erupt Indeed, violence. it is will not infer entirely possible jurors at anything all from the of the . . . Our has become inured to presence guards. society guards most are presence they armed doubtless taken public places; for granted so as their numbers or long do not weaponry suggest particular 560, (Holbrook (1986) official concern or alarm.” Flynn v. 475 U.S. 569 1340, 1345, 525]; S.Ct. L.Ed.2d (1976) 89 see also v. Duran 16 People [106 282, 291, 618, 1322, Cal.3d fn. 8 545 P.2d A.L.R.3d Cal.Rptr. 90 [127 1] numbers, are in unreasonable such need not present presence [“Unless be the court or the justified by prosecutor.”].)

1269 560, court high opted 475 U.S. Flynn, supra, In Holbrook v. so measures are challenged security of whether consideration case-by-case ato right constitutional as to defendant deny inherently prejudicial of a at the оutset reaction initial jurors’ The court recognized fair trial. of the impact not be aware as the jurors may is not trial dispositive Therefore, the court the accused. attitude have on their will toward practice an presented the security practice practices determine whether only must (Id. at come into play. p. factors will risk” that impermissible “unacceptable to “at the scene court should look 1346].) presented The 570 S.Ct. p. [106 as inherently determine saw was so prejudicial whether what they jurors trial; if the to a fair right threat to defendant’s to an unacceptable pose and if the defendant inherently is not found prejudicial challenged practice (Id. at 572 S.Ct. prejudice, inquiry p. is over.” actual [106 fails show 1347-1348].) at pp. orderly courtroom security court has broad to maintain

A trial power Proc., 128; (1992) 4 Cal.4th v. (Code Civ. Woodard People proceedings. § 434, 954]; (1956) Merkouris 46 P.2d v. People 841 Cal.Rptr.2d [14 abused here. 999].) That discretion was not Cal.2d P.2d [297 in the and we find nothing has not demonstrated actual Appellant prejudice, Cruz at his trial in the Santa of the measures utilized security description as to warrant Court that is so inherently prejudicial County Superior have been affected by conclusion that in a verdict the reaching jurors might their observation of those measures.

H. Right of Confrontation. it told the jury her statement the

During opening prosecutor leading in the events would hear evidence about Dahl’s involvement Larry court of and that Dahl had been convicted in federal transporting murders statement in this part firearms. No made to any objection asked Weller statement. subsequently prosecutor’s opening prosecutor The court Dahl. against her regarding past testimony several questions Dahl had whether sustained a hearsay objection “yes” response been convicted. this examination of Weller through prosecu- contends that *52 to bolster Weller’s able to use evidence of Dahl’s conviction

tion was claims, denied he he was doing, his In so thereby guilt. credibility prove confrontation. due and the right process of the is based on the nature hearsay infer that the confrontation claim

We sustained immediately that had convicted. ‍‌‌‌‌​​​​​​​‌‌‌‌​​​‌‌‌​​​​‌​‌​‌‌‌​​‌‌​​​​‌‌​​‌‌​‌‍The court evidence Dahl been 1270 however,

hearsay objection, was afforded the opportunity to confront and cross-examine Weller. There was no Sixth Amendment violation.

Even misconduct in assuming to the referring conviction during statement and opening assuming sustaining objection when Weller sufficient, testified that Dahl had been convicted was not we see no possi- of bility prejudice. Weller’s testimony Dahl’s involvement in regarding supplying gun silencer used in the murder was corroborated by Johnson, was, event, Sondra and that of Weller’s aspect testimony relatively insignificant of her The that the part testimony. possibility jury have concluded may that Weller was truthful in her testimony regarding because appellant, another jury convicted Dahl after her about testimony his is too inference delivery gun, remote to warrant the prejudice would have us draw. These are facts to those before us in comparable Cummings v. People (1993) 4 Cal.4th 1233 1], 850 P.2d on which Cal.Rptr.2d [18 relies. There we held that evidence of the conviction of the defendant’s wife as irrelevant, an after the accessory fact was but we necessarily recognized defendant, aided, the evidence that the suggested whom the wife harmless, however, also. guilty We found the error because the evidence that the defendant’s wife had been convicted was never emphasized. learned jury of the conviction of a only through grant request judicial notice of that conviction and several others suffered the defendant’s wife. by (Id. at 1294-1295.) pp.

Here the evidence that Dahl had been convicted after Weller testified him was even more against It did not tangential. as imply appellant’s guilt, did the evidence in v. People Cummings, supra, Cal.4th 1233. It suggested that a believed

only jury Weller when she testified that Dahl delivered the error, and silencer to gun it appellant. Assuming harmless and clearly did not Const., VI, 13; result in a (Cal. miscarriage justice. art. People § (1956) v. Watson 46 Cаl.2d 243].) P.2d [299 I. to Instruct That Garcia Was as a Matter Law. Accomplice Refusal Section 1111 conviction on the prohibits of an testimony accomplice unless the is corroborated testimony other evidence to connect tending the defendant with the defines commission of the crime. The section accom- “as one who is liable to plice for the identical offense prosecution charged the defendant . . . .” against

When the evidence at trial would warrant jury concluding that a an witness was of the defendant in the crime or crimes for accomplice

1271 trial, jury must instruct the trial court is on the defendant which as a establishes If the evidence an accomplice. if the witness was determine must so instruct the court an accomplice, that the witness was matter of law for the a of fact is question is an accomplice but witness whether jury, the facts or to either no as unless “there is dispute in all cases jury (1989) 47 Cal.3d Garrison v. (People to be drawn therefrom.” inferences 746, 257, of this trial 419].) jury At the time 765 P.2d 772 Cal.Rptr. [254 is to an that the testimony accomplice either case to be instructed in on the be convicted the defendant not may distrust and that be viewed with (See v. People corroborated. unless it is an testimony basis of accomplice’s 122, )17 929, 846 P.2d 4 Cal.4th 982 (1993) Cal.Rptr.2d 704]. Zapien [17 if there is suffi- 1111 is harmless to instruct section Failure pursuant be be slight, may evidence Corroborating may evidence. corroborating cient element circumstantial, every not be sufficient to establish and need entirely 894, (1998) 18 Cal.4th Frye offense. v. (People [77 of the charged 982.) 25, 183]; 4 Cal.4th supra, p. v. People Zapien, 959 P.2d Cal.Rptr.2d in the an court instructed that Weller was accomplice The trial Garcia, refused a defense request As to the judge murders as matter law. she was that it must decide if and instructed the jury for the same instruction err. The court did not an accomplice. established that Garcia and Garcia’s own testimony

Weller’s testimony murders, the victims to the to the drove carried out tasks preliminary tilled, the wea and lulled them by performing location at which were they There shot them. during search which pons fore, a direct an turns on whether as perpetrat Garcia’s status as accomplice abettor, or,18 that de Laet or aider and she was aware conspirator, tilled,19 other crime any be or was engaged way MacVicar were to be murder.20 the foreseeable result of which might an that Garcia was There' circumstantial evidence was strong However, does not compel in the murders. that evidence accomplice 239, 928], 558, we (1998) 957 P.2d People Cal.Rptr.2d 18 Cal.4th 17In v. Guiuan 569 [76 testimony appropriate is not accomplice with distrust recognized that the instruction to view testimony that the be viewed suggested a modified instruction in all circumstances prosecution. “caution” when offered crime, felony it be or in the commission of a whether persons 31: “All concerned 18Section offense, misdemeanor, aid and directly constituting the or commit the act and whether commission, or, encouraged its commission being present, have advised abet in its committed.” principals crime so ... are abettor, knowledge of the must act both with person aider and 19To be liable as an facilitating of the encouraging commission the intent of purpose criminal perpetrator’s 23].) (1990) Cal.Rptr. P.2d (People 51 Cal.3d 90-91 [270 offense. v. Stankewitz only offense he intended guilty not an aider and abettor “is conspirator, 20Like a by the offense committed any reasonably foreseeable encourage, but also of facilitate or *54 1272

conclusion that earlier, she was an As noted accomplice. status is accomplice a jury unless there can be question no reasonable as to the facts or dispute the inferences to be drawn therefrom. (1992) v. Fauber 2 (People Cal.4th 792, 24, 834 249]; Stankewitz, 831 P.2d Cal.Rptr.2d [9 v. People 51 supra, 72, 817, Cal.3d 91 23].) 793 P.2d Cal.Rptr. In [270 whether to determining instruct law, that Garcia was an as a matter of accomplice court neces- considered sarily whether the find that jury might Garcia’s denial that she knew intent appellant’s to kill was credible. concluded Having impliеdly incredible, Garcia’s testimony was not inherently the court did not err in that she determining was not an as a matter of accomplice law since the record does not dictate a conclusion that Garcia aided his appellant knowing homicidal intent.

Moreover, the evidence was sufficient to corroborate the accomplice of Weller and Garcia. testimony Weller Although was an as a accomplice law, matter of admitted having in knowing the victims participation bringing Cruz, to Santa could testimony not corroborate thus Garcia’s testi- Fauber, mony v. 2 (People 834), Cal.4th at supra, there p. was other evidence corroborating sufficient to connect to the appellant murders. Son- dra Johnson testified that admitted that he had killed two appellant people California and their bodies would not be found because had been Her chopped up. testimony regarding delivery murder weapon defendant and about direction to appellant’s mail the card de signed Laet by circumstantial strong evidence that appellant committed the planned murders. Johnson was not an in the murders. accomplice Additional corrobo- ration is found in Edwards’s testimony showed unusual inter- skull, est in the of the first discovery asking why mushroom hunter was there,” a “up reference to the location of the murders.

IV Penalty Phase A. Prosecution Evidence.

After the original Santa Cruz was unable County jury to reach a penalty verdict, much of the evidence prosecution guilt phase the circum- describing stances of the murders was to the presented again Stanislaus County penalty Evidence jury. events in Minnesota and regarding Hawaii preceding Croy (1985) 1, 12, (People person he aids and abets.” v. 41 Cal.Rptr. Cal.3d fn. 5 [221 392].) Although P.2d engaged grand (§§ pretenses theft false 487), dug Garcia testified that purchased she the holes and the lime in the belief that bury money drugs. intended to argue and/or does not that Garcia was aware of or theft, accomplice grand was an to the or that the murders were the foreseeable result of that offense. form, through abbreviated principally a somewhat offered in murders was claim to have Weller, on less emphasis the testimony dominating bizarre occasionally on his connections and and Mafia CIA cross-examination, counsel However, defense in Hawaii. behavior while reference, heavy during period elicit testimony regarding appellant’s did cars, as connections, use, and tapped telephones, bombs in CIA cocaine *55 was and that appellant “craziness” belief that this was as Weller’s well out also brought Cross-examination a nervous breakdown.” “crazy having immediately use during period cocaine heavy a description appellant’s Cruz. before the to Santa trip a to stage a of appellant’s plan included description testimony

Weller’s Garcia, Johnson, and Weller Jim armored car with robbery Christmastime then habit). was under her Weller and a (who carry gun to dress as a nun was to did not want as she to from get away appellant, out how figure trying a robbery. be of such part and described, testimony her detail than in prior also in greater

Weller statements, evening December had told her on what appellant $250,000 Travelodge, to the Millbrae of the that MacVicar brought part that he described deal. testified cocaine She bogus about the to set up plan and to and de Laet both MacVicar his intent to kill including plan, and if she bodies, if she liked MacVicar and asked her dismember the to Santa Cruz said would go could kill him.21Appellant she thought know but Garcia did not be there de Laet Garcia would go along. would he had not that although told Weller going what happen.22 Laet, do decided that he would de he had he to kill been sure whether wanted de her Laet given de Laet because he to be with angry so. He appeared her and with cocaine he gave slept had taken the and cocaine. She money he why asked appellant him.23 When Weller which “nigger,” displeased the money, appellant de Laet and take set MacVicar and could not just up knew money and de Laet got MacVicar said the from whom persons him. come after and would probably appellant between Weller’s inconsistencies cross-examination was on principal 21A focus of the hearing, in Minnesota testimony preliminary at the

testimony proceeding prior and her in this acknowledged that she investigating Weller officers. and in her statements proceedings, to be killed. and de Laet were knowing that MacVicar when she denied past had lied in the prelimi at the perjury acknowledged pretrial other lies in statements also numerous She of, knowledge or involve her had minimized hearing, many prior statements nary which murders, of the in, up the involvement attempted to cover to the actual prior ment events Larry Dahl. Johnsons that Garcia did appellant told her previously that had not testified or stated 22Weller going happen. what was know person, dark-skinned used this term appellant earlier that 23Weller had testified disapproved. boyfriend of whom he former including Weller’s Hawaiian testified, Garcia also her describing and her relationship appellant to, involvement in the events leading and after the during, murders. She Mafia, described claim to be one of the part seven men of the world to whom must be respect given, his claim to be operating farm marijuana on Hawaii land owned aby and his claim to be policeman, in real estate engaged his through Central States firm in which the Properties Teamsters Union was involved. Garcia also testified about sent to being California to cocaine for purchase appellant, adding instructed appellant her to tell the contact in California about and his Mafia connec- tions. She her, described the he beatings administered to his threats to kill her, an instance out, when he her until she strangled and his passed instruc- tions when sending back to California to live with her mother. She believed, based on what told her and his knowledge of her activi- ties, that having her followed and had installed a recorder tape in the car she drove so that he knew everything she did.

Garcia also described appellant’s instructions to her to learn as much as about Mr. Garcia’s possible armored car so that he operation could be robbed, and appellant’s instruction that she Mr. marry Garcia. Her testimony before, the events regarding immediately and after the during, murders was consistent with her guilt phase testimony, that in her except penalty phase she testimony testified that she now remembered that de Laet was not shot the second time until de Laet had been to the location of dragged the holes.

Garcia testified that when her the appellant gave envelope money 29, 1981, December he said it was financial for her for help grandfather which she had asked. She denied that the was money for payment digging the holes as she had stated in a apparently pretrial interview. She also testified additional regarding threats her against made family by after the murders appellant and an incident when was in appellant staying Edwards’s house in which started appellant hitting Edwards because Ed- wards could not stay awake.

Sondra Johnson testified about statement on the he and appellant’s night Edina, Minnesota, Garcia at the arrived Johnson in that he had apartment California, killed in two had done a people “fantastic and the job” crime or the bodies would never be discovered because the bodies had been chopped and were as good as out to sea. She up just also testified about the silencers constructed, her husband Christmas appellant’s that a request gun him, silencer be delivered to her assistance to Dahl in the Larry car renting 1982, Dahl drove to California to make the and her delivery, January flight to Miami to mail the card greeting given to her Dahl and addressed those these events testimony regarding Her in Hawaii.24 appellant came and Garcia and then after the when Weller appellant murders occurring guilt same the given during phase. was the as that essentially to Minnesota on the inclusion the “MacVicar” for testified that selection of album She coincidence. the was a ride from during airport appellant tape played that there was made tape did not realize the time She and Jim Johnson the murder name and that of of the tape was a connection between murders, knew about the made before they victim. The tape probably not told them the name the murders she had and when Weller revealed male victim. to officers in the she gave first statement acknowledged

Johnson crime Dahl and did she had protect investigating attempted in his role with the silencer to delivering gun appellant describe that Weller She that she had not told officers acknowledged California. cocaine, and had been Jim to Florida to that she buy Johnson accompanied she car. when said drove rental wrong to the Johnson during apart-

Johnson also testified that visit Jim ran out of what February ment on Johnson apartment so, a gun been a state. When he did put have cocaine-induced may an and Garcia her head. She described incident when also hotel, to the returned after which apartment moving during like the Johnsons bedroom to he said a “court” took to the have what the Mafia wrong one for to decide which them was what penalty *57 and be. The Johnson on his knees only got incident ended when Jim would kissed Before “court” told the Johnsons ring. holding appellant’s appellant die her those of her husband a arranged that he had to have children and of did to the at a horrible kind death if not return hotel specified appellant added the Johnsons’ guilt testimony regarding time. She to her phase that in family with when she and visited relationship appellant appellant Hawaii, was a had talked about that Hawaii killing saying appellant people, the and that could be buried in caves and wonderful bodies bodies place also she heard Pacific Ocean a burial She testified that ground.25 whole was after of a conversation Jim Johnson and telephone between tape appellant Johnson that Dahl had returned from California told Jim which appellant Dahl Dahl too much. he wanted killed because talked “Lauren,” card, Investigator Sammy signed that the was 24Prosecution Robustelli testified in a search of Hawaii home. appellant’s found ground aggravating was 25Appellant proper moved on the that the evidence for mistrial given no notice that threats of would be offered as evidence and had been additional violence argued Garcia and aggravating prosecution evidence. that the evidence corroborated The him, Weller, and testimony appellant’s their caused them to fear supporting statements challenged. credibility, their had The court denied the thus enhanced which defense mistrial, noting testimony appellant said he buried bodies. motion for that the was not that home, Johnson acknowledged Jim Johnson at she and whenever $10,000 month, he used cocaine constantly, sometimes worth in a and were and, times, under the influence of at always cocaine were as a things “hazy” result of use and lack She cocaine of admitted her role in the murder sleep. of Thomas Carroll Jimby Johnson. Edwards, of Diane preliminary hearing guilt testimony phase

trial several of other minor witnesses read testimony A was, jury. tape of a statement made during three-hour interview postarrest jury, for the had a of the played phase jury view scene. penalty evidence of two

Aggravating convictions was also prior felony presented.

B. Evidence. Defendant’s did not Although instruction “lingering doubt” request said he would not he argue sought cross-examination theory,26 through of witnesses to cast on the prosecution doubt witnesses. credibility The cross-examination similarities emphasized between MacVicar/de Carroll, Laet murders and murder of who had been in a buried shallow with grave lime his and mentioned Jim covering body, Johnson’s postarrest Johnson, instructions to Sondra which included directions chop up He sought also stress the Weller body. Garcia and vis-a-vis culpability appellant. evidence, presented also much of the defense guilt using phase recorded of 11 defense witnesses. This in- prior testimоny testimony

cluded the of Murta testimony that MacVicar was a Bradley marijuana dealer; of Perlin-that and Garcia seemed to be along well getting 1980; the summer Rochelle that Garcia and Garcia had a Donald married; normal but he was relationship, how surprised quickly about Grundherr’s at the testimony murder scene his appearance dogs *58 while officers Grundherr’s of the searching; testimony; testimony were Minnesota that body Carroll’s was covered with noncaustic pathologist lime unearthed and that the head bore blunt hydrated when postmortem fact, closing argument 26In did rhetorically in his defense counsel ask whether Jim Johnson Airport was with Dahl at the San Francisco Hotel and of the crime and part Hilton was a just questioned whether it was coincidence that the Carroll murder had similarities to the murders, played appellant MacVicar/de Laet and that was the name of for tape MacVicar followed, however, Minneapolis argument on by his arrival in after the murders. This confederates, argument willing accomplices, that and Garcia were who had been Weller they immunity though blessed even truth had not continued with whole been told and Justice, therefore, protect prison parole. others. demanded in without life of a Hertz testimony Corporation representative and the injuries; traumatic 29, 1981, Dahl on and Johnsons on December the cars rented (by that had International St. 1981) Airport at the Paul/Minneapolis December 4,800 3,517 rental. during about miles been driven evidence. additional offered mitigating Five witnesses 18, 1983, testi- on November had married Hayes, appellant Bonnie who Clare order Roman Catholic that she had the Poor cloistered joined fied of the' order in after been abbess having in She left the nuns 1952. more that for because she felt there was something several community years, in a homeless shelter to do. She lived Santa Cruz briefly operated she was Cruz, in Salinas that street in Santa people a Catholic worker group helped time herself to share on the streets in order contracted pneumonia spending months with a closely, lay religious the life of the homeless more three spent a and later Trinity Community, then known as the Holy developed group Cruz and Monterey Prison and at the Santa counseling ministry Soledad County jails. met a Holy Community

Mrs. after member of the Hayes Trinity appellant working who was with inmates showed her from jail correspondence appel- lant, letters, then that who was She was felt impressed by appellant’s jail. him, she knew an almost began daily correspondence appellant, a whom she came see as characteristics having positive notwithstanding bad he about When she background. She believed was sincere Christianity. first him. She feelings visited she romantic toward appellant, experienced a his recent indicated that different thought “begun journey.” he baptism decided to after about 16 visits. When They They corresponded daily. marry was in Santa Cruz an hour each spoke telephone that and she was see Mrs. testified able to twice week. day Hayes an is of their and she does not believe religion important relationship part “conned” her. She is not troubled five by appellant’s prior She to know discussed does not want about his has not marriages. past details, commitment his offenses or their as either innocence guilt is she believes “the past past.” life as an

Mrs. testified that she viewed Hayes prison for him to others in prison. opportunity help Boucher, minister who had been a jail

A1 nondenominational prison that, he is able to for 10 testified based on his years, experience, chaplain conversion” from one is manipulative. sincere distinguish “jailhouse *59 of after for two at the Mrs. weekly years request Hayes He visited appellant Lord, their He marriage. believes appellant truly loves is not conning him, and is a influence Mrs. and his positive Hayes fellow inmates. This witness had never discussed offenses with him. Graff, life

Kelly a term for first murder serving at Deuel Voca- degree Institution, tional that while testified Graff was in solitary confinement in Santa Cruz him a Bible. The County jail, appellant gave twо discussed God and the told Scriptures. Graff he could out his life Appellant straighten Graff, through As a result religion. whose job a life skills prison assistant, teacher’s believed he right now was on the track. Soto,

John De a former addict drug convicted of inflicting corporal and, on a child confined at Soledad he punishment state testified that prison, met in while both were the Santa appellant County Cruz jail. They discussed issues and religious him to a urged practice practical Christianity outside, his life in in jail. several just Appellant Bible verses explained Soto De some about the including one importance “respecting another.” a result As De Soto has appellant’s counseling, Christ into his accepted life has He an sought inmate forgiveness. participated religious group and had acted as a minister when none was available.

De Soto testified that he believed there role for was a older inmates like like tools that prison. appellant were the will make the People difference in inmate’s lives because can relate to many another inmate has who faced the same have. problems they Lantis,

John sheriff to the assigned interaction deputy jail, daily He testified that appellant. very read books cooperative, many ones, and did not including when spiritual escape another inmate attempt a hole cut in a fence around area and did exercise so. rooftop

V Penalty Phase Issues A. Venue. venue,

After the for a trial court motion granted appellant’s change Stanislaus, Marin, trial in Administrative Director of Courts27 proposed San or for Marin Joaquin County, County. expressed preference Court, 27Califomia Rules of rule 842: “When the in which the action pending court is Code, pursuant determines it should be transferred to Section 1033 1034 of the Penal being pending Upon it shall advise the Director of the transfer. Administrative Courts of

1279 others, the first County being Stanislaus of the for either the prosecutor in Stani selecting the court erred contends that choice. Appellant County. slaus of of the results evidence offered a on the hearing

At question, Archer, Professor Dan census data. based on the 1980 study demographic Cruz, who at Santa of California University of sociology a professor con- and demographers that sociologists testified study, had conducted factor. In that important comparison status most sider socioeconomic Cruz than Santa higher County slightly his Marin study, of aspect either Stanislaus than County closer to Santa Cruz but was much County, hand, the ethnic/racial On the other County.28 or San County Joaquin than that that of Santa Cruz was closer to County of Stanislaus composition Marin, of schooling. as the median years of Marin County, and the location of based on this study argued, Marin County which made to the San Francisco International Airport, close witnesses, that Marin County and out-of-state more convenient for Area Bay County that trial in Stanislaus be argued should chosen. prosecution cases County and because some Stanislaus would be less expensive, a Santa Cruz it was have County, been tried in Santa Cruz appropriate trial heard in Stanislaus County County. that, the three counties to which

The trial court concluded as between relevant, transferred, and because be were not trial might demographics find exercise of discretion in did not much of to the any significance court end, offered, the court the decision would be In arbitrary. the evidence concluded, a matter in case the selection of an alternate venue was this would publicity pose court administration. Absent evidence pretrial counties, discretion to choose the court had in one of proposed problem and, in terms of Stanislaus Santa Cruz had “extended itself County since cases, for that not unreasonable that that’s probably seems . . . County [it] three choices.” reason the better of the a case to which county no In selecting there was error.

Again, transferred, of justice discretion in the interest is the court must exercise its and the relative a fair trial. It should consider publicity to assure defendant shall, equalize the work expedite judicial order to business the Director advised by the trial of the case. unduly be burdened judges, suggest a court or courts that would not Thereafter, as proper the case to a court pending case is shall transfer the court in which the justice.” the interest of it determines to be in education, completed years higher persons who had County had a number 28Marin higher income residents in the managerial occupations, and more professional and had brackets. to the

hardship the case in the parties trying locations and proposed may *61 funds, also consider conservation of judicial resources and and con public 771, venience of witnesses. (1991) v. 53 (People Cooper Cal.3d 804 [281 90, 865].) P.2d 809 No issue Cal.Rptr. was raised with respect counties, possibly of the prejudicial publicity any thus this was proposed not a factor. The court did consider but no real issue hardship, hardship arose. Witnesses were able to attend. did not offer

Appellant basis for that a fair trial any concluding could not be held in of the any counties. The jury was selected from that panels reflected a full of spectrum economic and social backgrounds. The panels

were drawn from a fair cross-section of the Stanislaus County population, and, relevance, assuming the record does not a conclusion that the support attitudes of the or actual differed prospective jurors from those significantly of the Santa Cruz County and actual prospective jurors. that,

No authority claim a supports when defendant obtains a appellant’s committed, of venue from that in change which the offense was due process mandates trial before a which is chosen from jury which panels replicate the socioeconomic characteristics of the venue in which offense was Court, committed.29 California Rules of rule 842 consideration emphasizes administration, of judicial and court economy concerns which the court did However, consider in Stanislaus selecting it selected County. Stanislaus after County only concluding evidence socioeco- regarding nomic factors did not that a fair trial could not be suggest held Stanislaus County.

B. Competency. contends that the trial court erred in his motion denying undertaken, be competency motion made at the time he proceedings for of He appeared imposition asserts this claim judgment. applies to the of the trial. The equally guilt motion asserted that phase then (§ 1367.) thus could not be incompetent “adjudged punishment.” facts, He the claim with a none of which related supported litany actually 29Appellant (3d relies on the American Bar Association’s Standards Criminal ed. Justice 15-1.4, 1993) by Jury, following Trial standard which identifies factors for consideration change when of venue is ordered: 1. the extent and nature of pretrial publicity; 2. relative courts; racial, ethnic, burdens on the 3. hardships parties; religious relative on the 4. the demographic proposed they may other relevant characteristics venue insofar as affect trial; required justice. the likelihood of a fair and 5. other factor in the interest of

1281 nature of that time to understand the of sentencing to his competence his counsel at that or to assist rationally proceeding.30 proceeding due clause violates the process of an defendant Trial incompetent (Godinez v. Amendment Constitution to the United States the Fourteenth 2685, 321]) 125 L.Ed.2d S.Ct. (1993) Moran U.S. [113 I, are Constitution. Those protections and article section 15 of the California defendant is in California. A criminal incompetent statute implemented of mental if “as a result not be “tried or adjudged punishment” may to understand the defendant is unable disorder or developmental disability, criminal counsel in the conduct the nature of the or to assist proceedings *62 1367, (§ (a).) subd. Section 1368 mandates a defense in a rational manner.” criminal a doubt as to a defendant’s competence a if hearing competency he or she occur if counsel informs the court that arises trial. That during may 1368, (§ (b)), subd. or during believes the defendant is incompetent “[i]f in the mind of of an action and to a doubt arises prior judgment, pendency 1368, (§ (a).) subd. as to the mental of the defendant.” judge competence trial court is Whether on motion of the defendant or sua sponte, a to determine hearing criminal and hold suspend proceedings required is introduced. whenever substantial evidence of incompetence competency a doubt about the “Substantial evidence is evidence that raises reasonable 18 Cal.4th at Frye, defendant’s to stand trial.” v. (People supra, competence no more than form the 952.) Evidence events that does regarding past p. basis for current is not suffi- speculation regarding possible incompetence (1995) cient. 733 v. Medina 11 Cal.4th (People Cal.Rptr.2d [47 2].) P.2d motion, support appellant 30In read a statement in which he asserted that various headaches, medications, rights jail, migraine inability sleep, of his use of violations solitary rationally or to conduct confinement rendered him unable to assist defense counsel interests, not have his defense for his best and caused him to reveal facts that otherwise would jury. demonstrating listing complaints of incompetence, been revealed to the Far from this county jail their past problems about his mental and the conditions and treatment in the allegedly debilitating impact very that aware of the nature of shows was hearing and a proceedings acting rationally attempt competency and was in his to obtain a new trial. conditions, “babbling” jail In about asserted that his complaining addition IQ, graduate high either brain police, by college statement to a statement a with a reflected damage testimony regarding his delusions. On its face incompetence, or as did Garcia’s arrestee, nothing intelligent, possibly police manipulative statement to reflects more than an cocaine, enough he is to make a statement without under the influence of who thinks smart did, indeed, suggest high on cocaine incriminating testimony himself. that while Garcia’s high on contain evidence that he was either appellant was delusional. The record does not cocaine delusional at the time of trial. grounds insanity, past acquittal murder on of prior also referred to his of trial, treatment, finding his commitment to psychiatric prior incompetence to stand medication. None of this Oregon, psychotropic mental institution in and treatment with present incompetence established to stand trial.

The short answer to claim is that in the nothing record appellant’s that at time these suggests during was unable to proceedings appellant understand the nature of the or to assist counsel in proceedings conducting the defense in a rational manner. Defense counsel never a doubt as expressed Moreover, appellant’s trial court to competence. appellant persuaded him to act as cocounsel permit trial. His during penalty presentation motion, it, he offered for and his support subsequent presentation several motions and presentence arguments thereof demonstrate support doubt that he beyond any aware of the nature of the fully proceedings continuance, and able to assist counsel. motions for a for new Appellant’s trial based on discovered evidence and newly denial of various constitutional and his rights, competency hearing, claim he was unable to assist defense counsel themselves reflect rationally awareness of complete and, face, the nature of the on their rational proceedings legal completely decisionmaking. motions,

The trial court denied all of to the with respect motion for a ruled hearing that from the court’s observation it competency understood the nature of the appeared proceedings *63 able to assist act as his own counsel. The court declared that no doubt had arisen in the court’s mind as to mental competence.

If in fact was of these incompetent during any part proceedings that fact is not on the face of this record. no error in There was apparent to order a failing hearing. competency

C. Prosecutorial Misconduct in Closing Argument.

Appellant argues during closing argument penalty phase in misconduct prosecutor engaged by improperly diminishing jurors’ sense of for the to be rendered. verdict No personal responsibility objection was made on that basis.

The claim lacks merit. diminishes the Argument that sense jury’s is that the argument lead the believe responsibility might jury ultimate decision on is whether defendant lives or dies made by court, or that the lies elsewhere. The responsibility sentencing appellate must not be misled as to its role as sentencer. That jury type argument (Caldwell a death renders sentence unreliable under the Amendment. Eighth 320, 2633, 2636-2637, (1985) v. 472 U.S. 323 86 Mississippi S.Ct. [105 “ 231].) L.Ed.2d Caldwell is ‘relevant to certain of comment— only types those that mislead as to role in a its in the jury sentencing process way that allows the to feel less than it should for the jury sentencing responsible

1283 2464, 2473, 168, 184 S.Ct. 477 U.S. Wainwright, decision.’ Darden v. [106 1, (1994) 512 U.S. 144], (Romano 9 (1986).” L.Ed.2d n. 15 v. Oklahoma 91 2004, 2010, that an 1].) recognized L.Ed.2d We have S.Ct. 129 [114 death rather than the decides whether jury to the effect that the law argument v. Farmer for the same reason. (People is the is improper appropriate penalty 508, 888, 940].) P.2d 765 (1989) 47 Cal.3d Cal.Rptr. 928-931 [254 in no misled the way jury The in this case argument prosecutor’s that the was not jury as to role sentencer. There was no suggestion its as maker, law, dictated the or that the not the jury, punish ultimate decision for being ment. The was was argument simply responsible for the death eligible who was now penalty. person told that its role was to determine if aggravating jury only it told that its function was to circumstances was also outweighed mitigating, in the Nothing determine if the death was appropriate. prosecutor’s penalty Rather, (1996) v. Arias 13 undercut this advice. as argument People (1991) 1 Cal.4th P.2d v. Fierro People 913 Cal.Rptr.2d [51 980] 1302], P.2d the argument Cal.4th 173 was simply Cal.Rptr.2d [3 that the moral blame for the murders and their lay consequences not the or elsewhere. appellant, jurors

D. Wheeler Error. next contends that he denied a selected from jury cross-section of the because the community prosecutor representative Oxendine, the only exercised to excuse Chariesse peremptory challenge on the African-American juror panel. prospective *64 258, (1978) In 22 Cal.3d v. Wheeler 276-277 People Cal.Rptr. [148 890, that “the use of (Wheeler), 583 P.2d this court held peremptory 748] bias to remove on the sole challenges jurors ground group prospective the from a cross-section violates trial drawn right by jury representative I, section of the California Constitution.” of the under article 16 community 1712, Thereafter, 79, (1986) in Batson 476 U.S. 89 S.Ct. Kentucky v. [106 1719, 69], the United States Court held that the 90 L.Ed.2d Supreme race, of a or on exercise of on the basis challenges solely juror’s peremptory be able to consider the that members of a racial will not assumption group clause of the the case violates the state’s impartially, equal protection dis Fourteenth Amendment to the United States Constitution. Purposeful the the only rights crimination in the selection of the venire violates a member the criminal defendant who is but also those of jurors, prospective need not be the court held that the defendant of the same race. More recently 1284

of the same race to to a race-based exercise of object prosecutor’s peremp- (Powers 400, (1991) v. Ohio tory challenges. 499 U.S. 415-416 S.Ct. [111 1364, 1373, 113 411].) L.Ed.2d objected when Oxendine was that challenged, asserting

the the prosecutor systematically excluding Black member of the only observed, The court and defense panel. counsel that of the agreed, approxi mately examined there had been no other Black prospective jurors jurors and, been, if there had had not excused The court prosecution any. nonetheless offered the prosecutor opportunity challenge. explain offered as his reason prosecutor Oxendine’s views on the death penalty.

The record the trial court’s that the supports finding implicit prosecutor’s for the to Oxendine was not explanation peremptory challenge pretextual. that dire During voir addressed to her attitudes toward the death part Oxendine stated that she penalty, of the death because disapproved penalty she would not reconfirmed want to someone to death. She put view under she she subsequent questioning by Although said could prosecutor. cases, consider the death in some she followed with her penalty immediately own “But to death. California isn’t it.” question; why put person doing

A defendant who believes are challenges peremptory being exercised on the basis of bias alone must raise as group point promptly, did here. The defendant must then make as a record as complete under the circumstances to establish a facie possible case of prima group bias, that the excluded are members of a showing that is persons group rule, under the cross-section cognizable and that from all of the circum stances a strong likelihood members are appears group being challenged because of their association. then does the burden shift to the group Only a race-neutral for the People provide exercise of explanation peremptory (1994) v. Turner challenges. (People 8 Cal.4th 164-165 Cal.Rptr.2d [32 521].) P.2d While the court here did offer the prosecutor opportunity Oxendine, of a use to remove it is not clear explain peremptory challenge that the court found that had established a facie case. On this prima find, record it is doubtful that the did so.31 did so court judge Assuming *65 however, there was no error. We that a uses presume prosecutor in a constitutional manner and deference to peremptory challenges give great the trial court’s bona fide for the exercise from ability distinguish reasons 31Contrary assumption, ‍‌‌‌‌​​​​​​​‌‌‌‌​​​‌‌‌​​​​‌​‌​‌‌‌​​‌‌​​​​‌‌​​‌‌​‌‍impropriety in such a circumstance there is no ruling objection prosecutor exercising on a before the explains Wheeler-based the reason for Turner, 164, 166-167.) (People supra, challenges. peremptory pp. v. 8 Cal.4th at

1285 Turner, 165.) at 8 Cal.4th supra, p. sham excuses. v. (People bias on which the peremptory other than grounds group record here suggests attitude toward been based—Oxendine’s could have challenge reasonably death penalty. E. Jurors. Qualification of cause, challenge excused for after by were jurors

Several prospective about that would prevent on the basis of attitudes capital punishment People, claims that or the death them from considering imposing penalty. Norton, jurors. the court erred in one of those excusing Virginia prospective erred in to excuse several prospective He also claims that the court refusing consider attitudes reflected inability fairly whose jurors pro-death-penalty the alternative without imprisonment possibility parole. punishment—life did in either We conclude that the court not err respect.

1. Error. Witherspoon/Witt not, trial,

The state in a excuse all who may jurors express capital the defend conscientious so violates objections Doing capital punishment. subjects ant’s Sixth Amendment-based to an right impartial jury defendant to trial a to condemn a man to die.” by willing jury “uncommonly 510, 1770, 1776, (1968) 20 v. Illinois 391 U.S. 521 S.Ct. (Witherspoon [88 excused, however, 776], omitted.) L.Ed.2d fn. A be if “the juror juror’s may views would or of his duties substantially ‘prevent impair performance ” oath.’ as in accordance with his instructions and his v. juror (Wainwright 852, 412, 844, 841], (1985) 424 fn. Witt 469 U.S. S.Ct. 83 L.Ed.2d [105 omitted.) Because determination of bias is fact based and involves juror the demeanor and juror, assessing credibility prospective question is one a trial Such determinations within “peculiarly judge’s province. [are] (Id. review; entitled to deference on direct . . .” 428 S.Ct. at even p. [105 854], omitted.) fn. p. rules,

When these the trial court’s assessment of applying prospective state of mind will be on the court if the juror’s generally binding reviewing are If there is no inconsistency, juror’s responses equivocal conflicting. it “the trial court’s will not be set aside if is judgment supported (1993) 6 Cal.4th substantial evidence.” v. Wash (People [24 1107].) P.2d Cal.Rptr.2d

2. Excusal Norton. Her convictions made

Norton had served on before. jury religious asked how those feelings it difficult for her to other When judge people. *66 death, would affect her in life and shе “To be truthful to determining replied: I couldn’t determine death.” When counsel you, further explored topic she stated she did not if she know death but against penalty, by herself she could not just it. She could not impose responsible “[b]e the death giving To I couldn’t. I couldn’t live penalty. anyone. just afterwards.” She believed that there be in myself might circumstances which warranted, the death but she could not that she could penalty say consider the death “because I have to live with decision I penalty whatever make.” She doubted that she would vote for the death even in a case penalty she concluded that which the evidence showed it to be the justice penalty would demand.

When asked if there was still that she could vote for the death possibility Norton “We don’t of us know what we are penalty, replied: any exactly situation, now, to do going when we are faced with a but the I feel I way just don’t feel that I could ever do it.” She conceded that if after only hearing evidence she became she but she did not want to do angry enough might, she through anger would want to do Norton anything logically. repeat- said she did not if she could edly know death and that impose penalty now I would I “[rjight would not vote for the death say absolutely penalty.” instructions, When as to whether she would follow the court’s pressed Norton continued to doubt that she could death. express impose Finally, she believed she could be a fair and although Norton said impartial juror, then, that the she felt “I not condemn to death.” way will She then anyone confirmed, when asked by evidence she prosecutor, regardless would not vote for death in case. not, asserts,

Norton was as ambivalent about whether she would ever vote to the death There was no in her impose penalty. inconsistency The trial court’s conclusion that her attitude toward responses. imposition the death would to exercise her duties penalty substantially ability impair as a is substantial evidence. juror supported

3. Bias. Pro-death-penalty next claims that the voir dire of Rat jurors prospective liff, Blanco, Wolfe, Hamilton, Jackson, and Lederle reflected Housewright, such bias that could not be fair. He strong argues pro-death-penalty these for cause be excused his failure some of should challenge jurors Witt, because the trial occurred before v. 469 U.S. Wainwright supra, the standard for cases. Under excusing jurors clarified prospective capital Illinois, 510, standard, the then v. U.S. governing supra, 391 Witherspoon could be excused if the attitude about the death juror only juror’s penalty

1287 vote for automatically clear that the would juror it unmistakably made and of the aggravating of the nature death regardless penalty against evidence. mitigating Wolfe, Ratliff, for cause. He and Jackson not challenge did Jackson, Ratliff, Blanco, House- to excuse challenges

used peremptory Lederle, Wolfe, challenges, his and did not exhaust peremptory wright, to him. Hamilton’s allotted challenges 20 of the 26 only using peremptory seated, and the need to exercise was name not called and thus she never never arose. challenge a peremptory did not waive claim with any respect possible

Assuming not challenged (People bias as to those prospective jurors pro-death-penalty 887]), P.2d 121 885 (1994) Críttenden Cal.4th Cal.Rptr.2d v. [36 actually challenged. he cannot demonstrate as to them or jurors prejudice to have remaining number of challenges He had sufficient peremptory Price, 401.) 1 Cal.3d at excused them. v. (People supra, p. of the voir dire of these

The claim lacks merit in event. Our review satisfies us that about whom now jurors complains prospective did not err in that were made would challenges court denying bias had it denied to the others.32None such challenges displayed have erred cannot demonstrate that he or she could not have been fair. Finally, appellant served as actually juror because none of these prospective jurors prejudice or alternate juror.

F. Cumulative Prejudice. the cumulative claims he was denied a fair trial by

Finаlly, appellant errors he has identified at the guilt penalty phases impact multiple of the trial. occurred, this claim. reject concluded that no error we

Having prejudicial VI

Disposition is affirmed in its judgment entirety. J., Chin, J., Brown, J., concurred. C. George, Jackson, 32Ratliff, Blanco, Wolfe, Hamilton, Housewright, and Lederle.

MOSK, J. dissent. I Kenneth

Royal Hayes charged by Santa Cruz People through with, District Attorney other Lauren de Laet and among things, murdering MacVicar, Donald and was to have done so under the alleged special *68 circumstance of murder. Trial was in the Santa Cruz multiple by jury Court. The court ruled inadmissible certain Superior evidence about Hayes’s criminal He history, including this: had committed “murders” in two prior both, Minnesota and but had been Oregon, of on his acquitted Oregon successful of not reason of plea guilty by he had been con- insanity; States, victed of one or more firearm offenses under the of the United law and had been therefor at the United States at imprisoned Leav- Penitentiary read, watch, enworth. The court admonished the not to or jurors listen accounts in the to the case. It also admonished them not to press relating discuss it with others. trial Following of the issues of guilt special circumstance, found of jury Hayes de Laet and guilty murdering MacVicar under the circumstance of murder. trial special multiple Following of the issue of deadlocked. The court declared a mistrial. penalty, jury elected to issue. On motion for People retry penalty Hayes’s change venue, of the court transferred the case the Stanislaus Court for Superior conclusion, such At their a fixed proceedings. for the jury penalty murders at death. The court rendered judgment accordingly.

I After the trial of the issue of in the original Santa Cruz penalty Superior Court, Court and before retrial of the same issue in the Stanislaus Superior moved the Santa Cruz Court Hayes for new trial of the issues of Superior misconduct, circumstance on the guilt of special ground juror including of evidence outside of court to the case. improper receipt relating Code, Under section 1181 of the Penal a defendant move the trial may court for an order for a new trial after an adverse finding verdict 2, 3, id., (see misconduct one or more subds. & grounds including by jurors 4), including evidence outside of court improper receipt relating (id., 2). case subd. He his motion affidavits or declarations. may by support (6 (2d 1989) Witkin & Cal. Criminal Law ed. and Attack Epstein, Judgment Court, 3078, in Trial 3802 see Code Civ. [mentioning affidavits p. only]; § Proc., affidavits].) 2015.5 declarations in [generally allowing place § 803, (1990) Pursuant to v. 51 Cal.3d 395 People Hedgecock Cal.Rptr. [272 1260], 795 P.2d the trial court conduct an into may hearing juror evidentiary misconduct, and to call them to may permit parties jurors compel fact, in order to of material but do so resolve issues testify, disputed may of juror demonstrating strong possibility in the face of evidence only (Id. A deter- 414-419.) have been might prejudicial. pp. misconduct conduct, conduct, hearing or not to an evidentiary mination a trial court to by reviewing trial is examined a by or not new ordering, ordering, ancillary ibid.) (See, A e.g., ruling court under the standard of abuse discretion. under the same test. or not a new trial itself is scrutinized ordering, ordering, 564, 629, 828 P.2d (1992) Clair 2 Cal.4th 667 Cal.Rptr.2d v. (E.g., People [7 falls outside the 705].) A trial court abuses its discretion when its action (1998) 18 Cal.4th bounds of reason. v. (E.g., People Kipp [75 1169].) 956 P.2d Cal.Rptr.2d trial, his for a offered unsworn “affidavits” moving Hayes

In new papers Minsloff, his Jon C. and his Kevin Love. attorney, attorney’s investigator, *69 In Defense Counsel Minsloff’s was to this “affidavit” pertinent part, effect: After the Santa Cruz Court declared a mistrial on the issue Superior Defense Love C. had Investigator interviewed who penalty, Nancy Wynn, been one of the and became that she and other had aware jurors, jurors misconducted Minsloff and Juror themselves. Love interviewed together she, herself, a second time. confessed. had Wynn She “admitted Wynn read . . . stories which in the Cruz Sentinel the during Santa appeared course of the trial. it She said was too not to want to read about the tempting was, articlefs], case. She said that she a result as of said familiar with . . . record, criminal Hayes’ his two trials for murder.” prior including previous in original.) “stated that it was obvious to her that . . . (Emphasis Wynn Norlene another one the apparently Hawley,” jurors, [sic: “Norleen”] “was the same articles she because of her after the reading timing articles and the context of her comments appeared during guilt-phase deliberations,” which referred to facts about not in evi- Hayes were “ dence, such as: ‘You know he . . . met Jim Johnson’ one of ”—who was ” (which true); his associates—“ ‘in Leavenworth’ not have been may may “ “ before, ”; and, ‘He’s . . . done it twice know . . .’ ‘This isn’t you ” time first he’s done it.’ “stated that she felt most of the Wynn jurors trial, been accounts of the reading always trial. She newspaper during Ed saw ... another one of the Wagner,” jurors, “carrying” “copy San Jose the trial. And comments Mercury during during based Wagner’s deliberations she was sure he articles about the case. Both reading Hedrick,” and . . . Clarence another one of the “stated Wagner jurors, ‘We’ve him now. We can’t let him during penalty phase, got get stop ” Solomon,” with it stated that. . . away again.’ who Wynn Harvey “further become the “had would stated jury foreperson, during guilt-phase trial, that he had at school nick-name from his fellow teachers acquired session) as a of their when court was not in result (during Fridays case, discussion about this that nick-name ’em Har- being ‘Hang High Minsloff met at his office with Assistant District vey Attorney [.]’” Boriss, Court, Madeleine who the trial in the Santa Cruz prosecuted Superior and “shared with her information” that he had “obtained as set forth” above. Prosecutor Boriss admitted that had confessed to her as well. Boriss Wynn “informed” Minsloff “that she too had . . . Wynn interviewed after shortly , the trial. . . and that. . . had related to her the same information Wynn about misconduct.” Minsloff then “disclosed all of’ his juror “investigation materials misconduct ... to District Arthur Dan- regarding juror Attorney ner, III,” later, aat at Danner’s office. Sometime Assistant District meeting Jon E. the retrial of the issue of Attorney who would Hopkins, prosecute Court, Clark, in the Stanislaus and his Dennis penalty Superior investigator, house, an . . . hour with at her “spent approximately Wynn, presumably still, about the misconduct.” Later Minsloff and alleged juror conversation Love visited with . . . . . . On that occasion . . . “again Wynn Wynn would, circumstances, declared that she under no submit an unequivocally affidavit the matter she had discussed with” them “as regarding previously set forth” above.

Defense Love’s “affidavit” was similar in substance to De- Investigator information, It fense Minsloff’s. also contained additional such as Counsel At Love’s initial with Juror “stated following: Wynn, Wynn interview Boriss, that she had Prosecutor and that “Boriss had told her with” spoken that” Love “would her to an Affidavit.” Love try get sign probably *70 “asked” “if she had idea . . . Boriss would assume that” he Wynn any why her that it of “would want an Affidavit.” “stated was because sign Wynn trial, the conduct of the and the fact that she felt that several jury during had been accounts of the case the' jurors reading during newspaper course of the trial.” At the at District Danner’s office at meeting Attorney which Minsloff disclosed all of his materials investigation regarding juror misconduct, Love and Boriss were also as well as Assistant District present, E. Boriss admitted that had confessed to her Attorney Joyce Angelí. Wynn “stated that had with . . . after the Wynn too. Boriss she also spoken shortly trial and that . . . had admitted to her that she had read Wynn newspaper the course of the trial.” articles about the case during trial, he In for a made offered moving Hayes plain why his new papers Love’s “affidavits” Investigator Defense Counsel Minsloff’s and Defense statements, instead of herself calling Wynn Juror relating Wynn’s hearsay (1982) 301 v. Scott testimony: People Cal.App.3d compelling 891], been decided and was on recently which uniquely Cal.Rptr. [180 in Hedgecock—barred which we would subsequently disapprove point—and action; and, and consideration for such as he would later “respect imply, He . . . counseled in avoidance. that Wynn” against any attempt argued came for declarations exception statements within Wynn’s hearsay not an interest and hence inadmissible. He against effectively requested were matter Min- evidentiary by offering in the hearing explicitly testimony by also, sloff Love and if he were herself. Wynn permitted, by motion, their trial In papers Hayes’s new opposition People that Juror statements in Defense Counsel Minsloff’s argued Wynn’s hearsay and Defense of Love’s “affidavits” were inadmissible as outside Investigator for exception, declarations interest. also any including against They offered a declaration Ida C. Juror an affidavit Juror Bonnie by Murray, by Brofft, and a declaration Prosecutor nothing by Hopkins—but, surprisingly, Boriss, at all Prosecutor who had by now from the by case. disappeared In pertinent Juror declaration to this effect: part, Murray’s “During trial, and from the first when” the Cruz very day Santa Court Superior case,” “admonished” her “to shun about the she all publicity “avoided about . . . exposure publicity Hayes his apparently [szc: “or”] “Never trial.” once did” she “see or hear refer in anyone anyway [sic\ case, about the or mention publicity matter to . . . any pertaining Hayes was not ... presented the courtroom.” to the conclusion “Subsequent trial,” she “came to things learn about . . . Hayes’ background which trial, were presented ... his difficulties with the specifically prior Oregon law in She Minnesota.” “never once heard these matters referred to in any way, by any during the case. The juror, pendency other who were jurors when this . present news was . . imparted expressed . . . .” surprise Jury Solomon was never “referred as Foreperson to ... ” ‘[H]ang ’em Juror made . [H]igh Harvey.’ Wynn “never statement. . indicating she had of the case or . . . any knowledge back- Hayes’ what ground, beyond was admitted ... in court.” She added that Wynn herself, “generally spent courtroom breaks would not as have been able to comment on the extra-deliberation conversation as jurors [Murray *71 not, rule, She did aas in casual general engage herself]. conversation with . the other . . jurors or alternates.”

Juror Brofft’s similar affidavit was to Juror Murray’s declaration: She “never, once, not heard make reference to or any juror any publicity material information about the case or” not any Hayes “that was ... presented fact, In trial.” she “heard almost comment from” her daily “fellow jurors about the of ‘out of touch’ from feeling being reading not any newspaper news, TV to” watching but no one her expressed “knowledge any unhappi- ness or resentment at this state affairs.” She “never heard the term ‘Hang ’em High any used the Harvey’ by juror during trial.” pendency declaration described at meeting

Prosecutor what Hopkins’s transpired that had Juror Wynn: he and Prosecution Clark had with Investigator Wynn did . relating “stated . . . that she not read articles to . . any newspaper of the trial.” Asked whether was said Hayes “anything during pendency that lead her to had read they other would believe that by any juror articles or listened to other media coverage concerning Hayes newspaper had, case,” that no that assumed that did they “she said one said but she they ” all stuck the men were all so ‘macho.’ because and they together motion, trial in to his new opposition In his papers reply People’s “concede[dj” that Defense Defense Counsel Minsloff s and Investi- Hayes outside of Love’s “affidavits” amounted inadmissible gator hearsay any so, is trial since new party permitted support exception—erroneously Law, (6 Criminal affidavits & Cal. supra, Judg- motion Witkin by Epstein, Court, 3078, 3802). Attack in Trial But he effectively ment and p. again § an in the matter testi- evidentiary hearing offering requested by explicitly also, and and if he Juror by Wynn Minsloff Love were mony by permitted, herself. Cruz conducted a new trial hearing Hayes’s

The Santa Court Superior “received,” had After that the court and presumably motion. confirming Minsloff, read, Counsel through “all the Defense moving Hayes, papers,” of’ on the basis such which contained issue “initially papers, submitted] his an with their offers evidentiary explicit two effective requests hearing also, if Minsloff Defense he were Investigator Love testimony by Wynn Through Juror herself. Prosecutor permitted, by Hopkins, People that the evidence that offered order to show argued Hayes prejudicial juror consisted of inadmissible statements within hearsay misconduct solely words, conceded, Wynn “told They Hopkins’s exception. true, one if would establish what thing”—which, expressly defensе misconduct, her—and that to be at least juror acknowledged prejudicial Clark, a she me and Investigator] totally “told prosecution, [Prosecution true, misconduct of any different if would thing”—which, preclude juror kind, conceding, they acknowledged if on her In so part. Wynn’s only her but assumed that Scott’s bar against calling credibility dispositive, unavoidable, stating, quote Hopkins, testimony compelling bring be a different matter if we were entitled to “I think it would totally can’t, that we them on the stand and I with the rationale juror agree and put an in front us and the Court had but had someone actually if we demeanor, misconduct whether credibility to evaluate their opportunity occurred, it a different The court effectively be matter.” would actually *72 that both confessed Wynn prejudicial juror concession People’s accepted joined at all. It and also denied such misconduct any explicitly misconduct 1293 their that acknowledgment Wynn’s credibility Wynn’s dispositive: issue, much in the fact that made” very is not she “credibility perhaps statements “but the of such were question whether” statements reported, further, But, “true or . it not. . without denied the motion. It proceeding reasoned, substance, that evidence offered Hayes in order show misconduct consisted of inadmissible state- prejudicial juror solely hearsay ments not and hence not any within did constitute “admissible exception, content of such a violation. “competent”] evidence” apparently [szc:

II view, In the Santa Cruz Court erred conduct my Superior by failing to any further whatsoever new trial proceedings Hayes’s motion relating misconduct in form of the at least prejudicial juror improper by receipt, Juror of evidence outside of Wynn, court about his criminal Its history. omission was altogether unreasonable. with,

To begin Santa Cruz had it Court before evidence Superior of demonstrating strong possibility juror misconduct prejudicial requiring the resolution of of issues material fact. disputed more it Perhaps precisely, had more than evidence. The concession that Juror both People’s Wynn confessed misconduct denied prejudicial juror and also such misconduct “ at all to a amounted judicial admission. “Such a ‘is judicial admission” fact; evidence of a merely it is conclusive concession of the truth of a ” matter (Smith which has the effect of it from the removing issues.’ v. Walter E. & (1978) Heller Co. 82 1].) Cal.App.3d Cal.Rptr. [147 The admission,” concession was People’s corroborated an by as it “adoptive were, noted, on their As Hayes offered “affidavits” part. Defense Counsel by Minsloff and Defense Love. Investigator Minsloff Love each stated that her, Prosecutor had to him Boriss admitted confessed as Wynn noted, indicated. As also did not offer at all Boriss. People anything One would reasonably have them to do so if expected Boriss believed Minsloff’s and Love’s statements to be false. she did not. Apparently,

Next, the Cruz Santa Court it had before evidence Superior demonstrating a strong possibility prejudicial juror misconduct resolution of requiring.the of issues material fact. disputed

The (1995) court in In re Cal.4th 634 Carpenter Cal.Rptr.2d [38 889 P.2d it is recognized that misconduct for a juror improperly 985] receive (Id. 647.) evidence outside of court case. relating to the at p. court Carpenter recognized also misconduct of this sort juror “gives (In rise to a matter law. as re presumption prejudice” *73 1294 course, means, 651.) Cal.4th That of that the People 9

Carpenter, supra, p. “must the or lose the verdict.” v. Marshall (People then rebut presumption 907, 269, accord, 676]; P.2d (1990) e.g., 50 Cal.3d 949 790 Cal.Rptr. [269 57, 594, (1987) 744 P.2d v. Miranda 44 Cal.3d 117 People Cal.Rptr. [241 382, 391, 1127]; (1985) In 40 Cal.3d 402 708 re Cal.Rptr. [220 Stankewitz 1260]; (1979) 24 207 P.2d v. Pierce Cal.3d People Cal.Rptr. [155 91].) P.2d take the of Without its account of casting language presumption preju- dice, “summarize” the court on to the relating went law Carpenter the of informa- [juror] itself: misconduct involves prejudice receipt “[W]hen sources, of is a review judged tion from extraneous the effect such receipt by record, to be The will of the entire be found verdict may nonprejudicial. there of bias. Such juror be set aside if a substantial likelihood only appears First, сan two will bias if the bias different we find ways. appear material, is likely judged objectively, inherently substantially extraneous Second, of the have the we look to the nature juror. influenced [Citations.] it is to determine whether misconduct and circumstances surrounding (In biased defendant.” likely juror actually against substantially 653.) re 9 Cal.4th at Carpenter, supra, p. account of

With this recast to take language presumption prejudice, thus: reads “When misconduct involves the juror receipt “summary” sources, the is by information from extraneous effect of such judged receipt there entire The verdict be set aside unless a review of the record. will in two Such bias can no substantial likelihood of bias. juror appear appears material, First, judged different we will find bias unless the extraneous ways. to have influenced the and substantially likely is objectively, inherently Second, surrounding to the nature of misconduct looking juror. circumstances, likely also find bias unless it is not substantially we will biased defendant.” actually against juror Here, misconduct juror exists a strong prejudicial there possibility outside at least evidence Wynn, the form of the Juror improper receipt, history. of court criminal Hayes’s about that Juror both Wynn for concession

As misconduct: juror People’s such misconduct misconduct also denied juror confessed prejudicial at all is sufficient. It arises as matter of law. A of prejudice

As presumption prejudice: That because we to be as matter of fact. is does not itself rebutted show is no likelihood of bias. juror cannot that there substantial say *74 First, we cannot declare that the evidence re- improperly out-of-court here, committed, of, ceived that had but had been namely, Hayes acquitted “minders,” two is not prior judged objectively, inherently substantially to a v. 50 Cal.3d likely People Holloway (1990) have influenced In juror. 530, 1327], 1098 P.2d which the court cited 790 Carpenter Cal.Rptr. [269 with could not dismiss the threat of taint out-of-court by we approval, posed that, occasion, evidence aon had not single Holloway gotten away previous Here, fortiori, with assault a a we cannot dismiss the deadly weapon. that, threat of taint by out-of-court evidence on two occa- posed previous sions, had, True, fact, in the with murder. evidence Hayes gotten away case against in this be considered to have been Hayes may relatively strong. But, time, weak, at the same it to must be deemed have been relatively witnesses, as it did from the mouths of two one an coming largely accom- law, as a the a plice matter of other an at least matter of fact. accomplice as itself, course, In of the court dismissed the threat of taint Carpenter posed by committed, of, out-of-court that evidence convicted been Carpenter There, however, two murders. prior evidence had been admitted properly Here, that had in fact the Carpenter committed murders in question. by contrast, admitted, otherwise, no evidence had been properly relating to of any way either “murders.” Hayes’s two prior Second, to the looking nature of the misconduct the surrounding circumstances, cannot we that it is say substantially likely any juror biased Juror actually against Recall of the Hayes. Wynn’s report statement of Wagner Jurors and Hedrick: “We’ve to him got now. We stop can’t let him with it In get away (1993) In re 6 Cal.4th again.” Hitchings 97 74, 466], 860 P.2d Cal.Rptr.2d [24 which court also cited with Carpenter we were unable to approval, of deny danger against partiality Hitchings Here, fortiori, as revealed the words of a by we cannot single juror. deny of as danger against revealed of two. It partiality Hayes by words well be an may unbiased have same jury would reached the verdict. Nevertheless, concluded, as the Carpenter court “we must set aside the verdict, no matter how convinced we be that an might jury unbiased would have reached the verdict. A same biased is one of the adjudicator [Citation.] mechanism, few ‘structural defects in the constitution trial which defy ” (In “harmless-error” analysis by standards.’ re Cal.4th Carpenter, supra, 9 (1991) v. at p. Fulminante U.S. 309 S.Ct. quoting Arizona [111 1246, 1265, 302].) 113 L.Ed.2d Cruz

Lastly, Santa Court had before it evidence demonstrat- Superior ing of misconduct strong possibility prejudicial resolu- juror requiring tion disputed issues material Such issues were went to They patent. of fact. Juror Should be Wynn’s credibility: she believed her confession of misconduct? Or should she be in her denial prejudicial juror believed thereof?

In erred by failing view of the Santa Cruz Court foregoing, Superior conduct further whatsoever on new trial motion proceedings any Hayes’s held a relating misconduct. court should have juror prejudicial to take evidence in order to resolve the issues of material hearing disputed fact to above in the face evidence demonstrating strong referred misconduct, or, least, should have possibility prejudicial juror very held a in order determine it could of some sort whether hearing properly decline to take evidence for Because it erred failing purpose. whatsoever, it erred conduct further proceedings necessarily by denying *75 motion, did, the as it prematurely.

Ill to In that the Santa Cruz Court did not err concluding by failing Superior further new trial motion proceedings conduct whatsoever any Hayes’s misconduct, of relating to state juror majority variety prejudicial one, however, the result desire. Neither yields reasons. No that single do all of them together.

To the majority essentially Santa Cruz Court’s salvage Superior ruling, fault Hayes. claim substantial “failed

Generally, majority Hayes present ante, 1252.) at of (Maj. evidence misconduct.” competent jur[or] opn., p. failure, course, such became immaterial in Any light People’s and concession that Juror both confessed misconduct Wynn prejudicial juror also such at The assert that I maintain denied misconduct all. any majority the issue miscon- juror concession of whether People’s “remov[ed] (Id. 1258.) no such duct occurred from the case.” at I do p. thing. resolution, as the issue—for whose the Santa concession raised People’s was Wynn’s credibility Cruz Court itself acknowledged, disposi- Superior tive.

More with not the motion Hayes arguing the majority charge specifically, his submitting Cruz other than it on by before the Santa Court Superior so, in But he did in fact and event not moving required do papers. not charge offering any he had written. him with already They what speak than statements not within any excep- evidence other inadmissible hearsay so, knowl- in facts within the by personal tion. But he did fact do offering They Minsloff and Defense Love. Investigator of Defense Counsel edge he did in fact do not an But evidentiary hearing. him with charge requesting terms, so, and and Minsloff Love testimony by in effect if not by offering also, herself, such by offering if by Wynn he were Juror permitted,

1297 To should evidentiary assert that an testimony hearing explicitly. “[w]hether ante, 1259) held the fact that be never arose” is to overlook (maj. p. opn., itself, in acknowledgment was raised the court its question by not Wynn’s him with credibility dispositive. They charge calling Wynn not, True, did he abided her he but not compelling testimony. improperly Scott, whose bar such action was then treated Witkin and against by (6 themselves as black letter Witkin & Cal. Criminal law Epstein Epstein, Law, Court, 3081, 3805), and Attack in and he supra, Trial Judgment p. § did not to do “out of consideration attempt otherwise properly respect for . . . Wynn,” manifestly even taking preclude appearance steps 273, 303, (In (1999) conduct” intrusive re Hamilton 20 Cal.4th “improperly 403, 600]; accord, fn. 23 v. 975 P.2d Townsel Court Cal.Rptr.2d Superior [84 (1999) 963]). 20 Cal.4th P.2d Cal.Rptr.2d They [86 him with not charge offering after the testimony question yet again True, not, court denied his motion. he but did he was not compelled press an after express refusal an one. him receiving charge implied They obtaining whether the court would him to call ruling permit Wynn so, But he compel did in fact do if not testimony. impliedly expressly, by *76 a obtaining denial of his motion sought which such permission.

To the Santa Cruz the salvage Court’s also Superior ruling, majority the excuse court itself.

Generally, the claim that Santa the Cruz Court “had no majority Superior ante, to reason even consider” further conducting proceedings. (Maj. at opn., itself, 1253.) Indeed, Of course it did. it the in p. stated reason its acknowl- edgment that Juror Wynn’s was credibility but unresolved. dispositive,

More that the formal specifically, mаjority immediate say question before the Santa Cruz Court whether Superior Wynn’s was Juror statements silent, were inadmissible not hearsay within are any how- exception. They ever, about the that the fact ultimate substantive was whether she question that, and others in perhaps engaged juror They misconduct. prejudicial say whereas the that evidence offered in order to Hayes show prejudicial juror inadmissible, misconduct was that offered evidence in order People was, contrast, to show no such misconduct at all by admissible. altogether silent, however, are They about the fact that evidence and the Hayes’s admissible, were not People’s dissimilar—if evidence was so People’s also was or at not was no Hayes’s. They say, least do that there deny, dispute what about stated to the and to after Wynn representatives Hayes’s People’s silent, however, trial. are fact indeed They about'the that there dispute trial, what about she did whether she during namely, engaged prejudicial misconduct or in no such misconduct at all. the law was juror They say 1298 be, from calling juror

then not as Scott stated it to barring party silent, however, the fact his are about They compelling testimony. bar black letter law-—to Witkin themselves treated Scott’s as Epstein now, ante, assert, 1259) is authority” (maj. opn., existed “contrary p. They of some sort exists. authority” always say not enough, “contrary Scott, as by that there is no indication that court believed itself bound was, Hayes declared that it Witkin themselves Epstein permit silent, however, about are call Wynn compel testimony. They belief, that, it did him to do so—unreasonably, fact whatever its not permit both concession that confessed Wynn prejudicial view People’s all, and its misconduct and also denied such misconduct at own juror any that there that her acknowledgment credibility They say was dispositive. been no basis to conclude that further would have proceedings productive. silent, however, are about the that such would have proceedings fact They all, once and for and would have rendered thereby resolved question to extend the invitation that find themselves unnecessary compelled later, some 14 issue for writ of habeas years by petition today, reopen (1991) is v. 53 Cal.3d that this case similar to Cox They say People corpus. however, silent, P.2d are about the They Cal.Rptr. [280 351]. concession, an fact that Cox did not involve a like the acknowl- People’s, court’s, alone. like the and is on that ground edgment, distinguishable

IV found error on the of the Santa Cruz Court fail- Having part Superior new trial Hayes’s to conduct further whatsoever ing proceedings misconduct, I to consider its motion turn now relating juror prejudicial consequences. *77 failure to conduct further only

Because error concerned proceedings misconduct, not misconduct prejudicial juror relating prejudicial juror Indeed, itself, not do may we should not reverse the we judgment outright. 13 of article of the California under the harmless error rule section VI so Constitution, in the us from such action taking except which prohibits of a “miscarriage justice.” presence

But, conduct further because error did in fact concern failure to misconduct, and resulted in juror thereby relating prejudicial proceedings nonexistence, actual existence or we absence of evidence its regarding an Cruz Superior and remand the cause the Santa should vacate judgment with do it omitted and act accordance what Court with directions to what miscon- a new trial if it finds prejudicial juror including ordering transpires, Court for rein- matter to the Stanislaus duct and transferring Superior Otherwise, Indeed, does we must do so. if it not. statement judgment se, the error in would render itself question harmless inasmuch per as it results in an absence of necessarily evidence of miscarriage justice that it have might about. brought

V above, For the reasons stated I would therefore vacate the judgment remand the cause ‍‌‌‌‌​​​​​​​‌‌‌‌​​​‌‌‌​​​​‌​‌​‌‌‌​​‌‌​​​​‌‌​​‌‌​‌‍to the Santa Cruz Court for Superior proceedings inconsistent views herein. expressed

Kennard, J., J., concurred. Werdegar, Appellant’s 16, 2000, for a petition rehearing was denied and the February Mosk, J., was modified opinion Kennard, J., to read as above. printed J., Werdegar, were of the opinion should petition be granted.