*1 July S008840. No. 2000. PEOPLE,
THE Plaintiff Respondent, CODDINGTON, Defendant and Appellant. HERBERT JAMES *16 Counsel Court, Cohen, Defendant Eric under for
Bruce appointment by Supreme and Appellant. General, Williamson, Lockyer, Attorneys George
Daniel E. and Bill Lungren Anderson, General, Attorney R. Assistant Chief Assistant Robert Attorney General, McLean, Attorneys and John G. Deputy Colombo Harry Joseph General, for Plaintiff and Respondent.
Opinion —Appellant was Dorado BAXTER, County the El by jury convicted J. Code, 16, 1987, (Pen. degree Court first murders May of Superior Walsh, 69, (counts 1 and Martin, age 189)1 age Dorothy Mabs of § 190.2, (§ (a)(3)), subd. circumstance 2), special with multiple-murder 17, 1987, (2), subd. now subd. (§ former forcible rape of the May (count B. (§ 288a) of Monica 3), oral (count Alecia T. (a)(2)) copulation 6) (counts 4 and (§ (a)) subd. 5), and forcible digital penetration found B., also 14 and and Monica ages respectively. Alecia T. fell within section in counts 3 through that the crimes true an allegation terms. On 667.6, full consecutive (c), appel- which subdivision provides found him sane at the jury reason guilty by insanity, lant’s plea the jury After trial of the penalty phase time the crimes were committed. 20, 1989, murder counts. On January a verdict of death on both returned *17 and reduction of the penalty motions for new trial after denying appellant’s murders, 190.4, for the two (e)), the court the death (§ subd. imposed penalty on terms of each years and four consecutive eight denied imposed probation, counts. remaining 1239, (§ (b).) subd. This is automatic. appeal in its entirety. We shall affirm judgment
I
Facts Phase Evidence.
A. Prosecution Guilt 1987, 16, and murdered on when they accompa- Martin Walsh were May Monica, to what all four believed was nied Alecia as chaperones, of an in which the girls appear. video filming antidrug to a and Monica were lured South The evidence established that Alecia 16, 1987, May Lake Tahoe mobilehome on appellant occupied 1987, 16, to May ostensible in video. Prior acting antidrug purpose in Reno in and by had contacted several modeling agencies person Bloomfield, and stated that he sometimes the name Mark using telephone, caller, in a the video. The May interested in models for finding teenage was Reno, 14, used Agency call to the Barbizon School Modeling from Barrett or Parrot Communications that name and said he was on at the Barbizon agency May who Georgia. person appeared Bloomfield, card bearing had a business himself as Mark identifying black and in His hair was disguise. very He nervous word Parrot. appeared mustache, and had he wore a back a hair and was slicked with preparation, indicated. statutory are to the Penal Code unless otherwise 1All references hom-rimmed The owner of the decided that she would not glasses. agency models for him. The who contacted supply any Aviance person Modeling hair, mustache, on had dark brown and wore Agency May He asked if the glasses. there knew where Avalon agent Modeling Agency A located. man who identified himself as Mark Bloomfield had called 13, 1987, the Avalon about models for an Agency May inquiring teenage he at Lake Tahoe. antidrug campaign filming Smith, In had also contacted Candice May 1987 woman Stateline, Nevada, aas dealer in him employed blackjack who knew as Gary Samo, a at the table. daily player blackjack Evidence was presented Smith, before he called told another dealer that he blackjack understood Smith had a cute little tele- daughter.” “pretty at a.m. Smith 3:00 name John Parrot. He affected a phoned using Atlanta, Southern accent and said was from The caller calling Georgia. said he had obtained her name from Avalon wanted to Modeling Agency use her in a beer commercial. the call he mentioned Smith’s During daugh- ter. Smith said she interested the hour of the call. He questioned said he had at her table a bit. He knew a bit about her. She played quite quite a.m., He called back at 9:00 himself as John hung up. again identifying *18 Parrot, and that he wanted her to know the call just was explained legitimate. He offered to let her to his A she voice which was speak partner. thought voice, same then said “hello.” he said he to person Using wanted prior meet her for lunch. She hung up. 14, 1987, Martin,
On Mabs the owner of Show- Thursday evening, May Models, case set an audition at her in Reno. up appellant agency Bloomfield, the name Mark conducted the audition. Wit- Appellant, using nesses described him as dark black hair that to be having really appeared Alecia, Monica, He and a dark dyed. wore suit. and glasses pinstripe eight 10 other auditioned. read from cue cards about abuse and girls They drug walked around the studio. this audition for a commercial to was Ostensibly be shot at Lake Tahoe the following Saturday.
On afternoon auditioned at the Barbizon Friday girls Modeling appellant K., School. That auditioned Jennifer another student at evening appellant Jennifer a car Showcase Models. When she noticed parked large, expensive with a license that she believed read “TVTEEN.” After discussing drag at Jennifer’s said would be problem looking they portfolio, appellant Beach. He talked about the commercial and said he wanted going Regan her to short shorts and a suit. Jennifer knew that Martin bring very bathing site, to drive other but wanted to drive as she girls planned separately had to her Martin and to Sacramento with go Saturday family. appellant at and to meet He to drive to Tahoe together this. wanted everyone opposed on Saturday to meet Martin casino. Martin for Jennifer arranged Nugget later called Jennifer Martin to the Martin meeting. and drive with morning not need Jennifer. His did told Jennifer evening appellant Monica, Alecia and she too old. Martin called said photographer $50 hour. and would be per told them that had won they parts paid the murders of both Other circumstantial evidence appellant planned offered. David and sexual molestation of the girls the chaperones that, and his had read aloud David Hacker testified assassinations which described various brother Allen from booklet about a clear methods of One of the methods was killing using nylon people. time, tie, off. said at the it baggage pulling tight walking on, “[Ojnce it can’t it off.” that in have Evidence you you get presented trailer, at the time became the sublessee February the name Samo advertised in a local for used using Gary person newspaper or mattress material needed for carpeting soundproofing. telephone number of one who had to the ad was found among person responded Also, Lake Tahoe a. South lumber possessions. early delivered and studs to the trailer. In company plywood May repair- man entered the trailer and and insulation laid flat in saw plywood, drywall, room. old living A and the of the trailer observed neighbor manager park and end outside the An trailer. invoice revealed pieces carpet FLEX-CUF2 that could not be released once cinched which ligatures up, Walsh, knew could be used to Martin and had been strangle ordered on March also offered exhibits consisting 1987. People various found in his trailer. Exhibit No. 186 scraps writing by appellant “them,” exhibits included taken from other to call which asked how writings come,” meet,” “how will “where will “them” to the they get how *19 trailer, two, and to how “them” inside. To the last was get response “force.” most of the evidence of related to and
Although luring preplanning these documents also bore words that could reflect confining teenage girls, concern that the have to be killed. On one would appellant’s chaperones had added which “tarp,” prosecution argued response appellant to in which a could be The also something body argued wrapped. prosecutor that various words found on those reflected disjointed papers the murders and how to of the bodies. Those words planning dispose “case,” “burn,” “Rot,” “shallow”, “sacks,” included “won’t “bag,” “deep,” “trunk,” “van,” “M.D,” eat and “where store” followed through,” “chop,” self-locking human proprietary plastic 2FLEX-CUF is a name for a restraint to be used on subjects. It must be cut to be removed. “trailer,” words, and “motel.” Another series of which the argued prosecutor murders, and reflected of the asked “what to do once inside” preplanning “throat,” “stomach,” “cuffs,” and 45.” responded “zap,” “straps,” “backup Other notations had also to leave suggested distracting appellant planned if clues when he left and had what he would planned say apprehended. 16, 1987, On Martin told her son that she going Saturday, May Lake Tahoe with to shoot an commercial antidrug drive South two girls and them. Martin owned a that her friend “Dottie” Walsh would accompany Martin met and Monica and Fifth Avenue automobile. Chrysler Alecia Martin then Dottie Walsh. drove where picked up They Nugget parked arrived, all and the waited in the restaurant. When five drove group appellant told to inside so trailer in Martin’s car. girls go could into shorts and freshen their change makeup. went in Martin and Walsh. directed them to two with girls Appellant
a room There a bed with wood walls which were pictures models. room, room in the but there were no mirrors. As the entered the girls room, them into the closing rammed Martin and Walsh threw the door behind him. He ran to Alecia and hit her on the with jaw black about inches inches thick. He five wide two rectangular object and face. He then Martin Walsh on the chest began hitting pushing told all and told Martin and to lie on the floor so he four shut Walsh up down, threatened to kill one could tie them Before Martin up. got then FLEX-CUFs to tie the if she did not down. He used girls get hands behind their backs and to bind their feet. Walsh begged women’s “[Tjake to be killed. Martin told us. Don’t hurt the One of appellant, girls.” wanted, him all the to which them told she would give money “I Alecia she had in know will.” appellant replied, you gave appellant money her Martin’s head and a FLEX-CUF over pocket. Appellant put pillowcase it, could not breathe. around her neck. She asked him to loosen she saying She started to and fell over to the side from a gag, sitting position. the older then ordered Alecia and Monica to lie over the legs their backs and their women. He used FLEX-CUFs to tie their hands behind beside feet He then Alecia on the bed and Monica on the floor together. put and a of shorts over the bed. He over Alecia’s face jacket pair put heard a “throwing up” Monica’s head. Alecia could see She carpet. then heard a sound Monica heard noises. Alecia gargling from Walsh. *20 later heard like bodies About 15 minutes she being dragged. sound dragging heard the the sound of Monica also noise bags. dragging plastic no in the room. longer and Martin and Walsh were bags thought plastic off the then returned to the room. He took the FLEX-CUFs girls Appellant He a ski mask over their hands in the front with belts. put and retied head, a around it with securing rope her a over and pillowcase Alecia’s eyes the right the to on carpet able to see a red substance Alecia was her neck. at that door, doing spot, appellant he was Asked about what however. Monica clean it to up. Kool-Aid and was going he had spilled replied on the carpet.3 dark brown scrubbing something to see him was able black and His hair was his head. a over bag was wearing plastic Appellant wet. them, saying, did not want Monica that he told Alecia and
Appellant her, extra Mabs, have to be paid and I’ll and I was get paid wanted “[W]e off the wrist restraints to take girls allowed for Dottie.” Appellant Monica asked ransom. When hold the girls He said he might blindfolds. it, them, on a silencer he a with pistol to kill going displayed him if he was done it. Alecia could have already to kill them he and said that if he planned them in it. gave the room had eyeholes Appellant that the door into saw their water, and, over them turn around put pillowcases after making Later, Alecia heads, magazines. brought in some fruit. brought it in her from one and put for “Herb Coddington” removed an address label to the FBI. suitcase. She later it gave awoke, brought eggs
The next when the morning girls into them to go take vitamins. He allowed and made the girls strawberries thought what Alecia the trailer. was wearing room of living Appellant of his ears and a ski his mouth and a turtleneck with the arms over part he Monica thought could see was orange. hat over his hair. The hair she out. sticking also saw hair orange a knit and ski mask. She wearing cap television, out. he was work going said After the watched girls clothes so they and told them change He them back in the other room put out. working as if he were heard heavy breathing could work out also. They He then let heard a shower. to shower going they He said was them exercise to videotape. room and had come back into girls living offer of a refused They to the other room. were returned They her teeth she saw shower, to brush Alecia used bathroom but when moustache, hair, over the sink. of a all brown about size be to make videotape were they going told girls Appellant He told had kidnapped. his friends boy with an 18-year-old sold Europe, them, but He blindfolded to take off their clothes. them would have going blindfold. if he was She asked appellant see out under the Alecia could “no,” them he would hurt boy and added that if them. He to rape replied held hands. the bed where they then girls put hurt boy. In his to Monica. climbed and began whispering onto the bed then the same coming person with from that location bore blood identified 3Carpet pad from Dorothy Walsh. enzyme) classification as (phosphoglucomotase, an PGM *21 voice, normal a holding to tell the nonex- microphone, appellant pretended istent to be and make the boy gentle feel relaxed. girls voice of Affecting that, he then to Monica that young boy he was also scared and whispered killed, while he did not think were to be they going people guns. undressed Monica and kissed her Appellant all over her her body including hear, understand, Alecia could but could private parts. the whispering. When she asked Monica if she all Monica After right, “yes.” replied about half an hour Monica said and asked to dressed. “stop” get Appellant agreed. then took off Alecia’s and
Appellant clothes in a whispered young boy’s this, voice that he was he did not want to do and sorry, would they hoped not kill them. He Alecia all over her and massaged kissed her on her body breasts, and lips, After 20 minutes she said upper vagina. She heard “stop.” distance, voice from coming some but there was still weight the bed. It felt like foot. girls allowed to dress and into the go room. living Only was there. said the
appellant video would have to be Appellant as it repeated was “not worth two cents” and no one would it. He to let the buy promised home if girls go did another five or they 10 minutes. He them back in the put floor, room and blindfolded again them. Alecia was on the Monica on put bed, but could still hold hands. Monica heard a voice awith or British accent was no European say heard tape good, that he had tried. The respond other voice said he would have to do another one.
Appellant removed Monica’s clothes and finger in her She put vagina. felt asked him to pain repeatedly The voice to be a stop. pretending boy called out to said to He asked Monica if she stop. and, no, wanted her mouth on him when she said he told her that she would Next, have to “it.” doing to be the he took her keep pretending boy, finger it, and sucked on that was how to do it. then saying his Appellant penis put in her mouth. She said she was to throw to which he going up replied: “Why Now, did that? you say ruined whole He told her she you’ve thing.” would have to do more. She said she could not and he allowed her to dress. then Alecia on the bed and told her that since Monica did put “no,” not do she well would have do better. She said but very repeatedly he removed her clothes and her She screamed to put finger vagina. it. then said: “Well don’t use the to have stop Appellant finger, you’re going her, to fuck her.” She screamed that he had he would not but promised rape bed, back on the Alecia’s appellant got over his shoulders put legs *22 told him that It and she his into her was vagina. very painful inserted penis fit,” off said: “Well it him He got “it doesn’t again asking stop. then finger again.” You’re to have to use the Appellant doesn’t fit. going bleeding. and some her finger vagina, causing great pain inserted his into her it was a a the room and believed could see red in comer of light Alecia that was camera videotaping. later. When asked they permis- to watch television girls allowed told could their voices
sion to call their them parents, they tape appellant where go they he a He let them to bed phone. would over play pay tape the girls fell told Monday May appellant On eventually morning, asleep. they them and call the so that he was to release going police someplace had been kidnapped be taken to Reno. He instructed them to say could Sacramento, a in them that if they and taken to blue house two-story warning in He danger. did not follow those instructions families would be girls’ them, FBI agents did not release however. were rescued They night by Lake who had identified as the suspect South Tahoe police appellant on had from sketches based witness of the man who composite descriptions been models. interviewing teenage
The law enforcement had been alerted to Alecia’s agents disappearance her Martin’s studio and used her Alecia’s broke into stepfather. stepfather contact able to Rolodex from whom he was phone directory persons automobile, Martin’s which then located on a his brother-in-law identify at lot South Lake Tahoe. FBI determined that the “TVTEEN” parking agents license was a in South Lake connected to Tveten automobile plate dealership Tahoe,4 and learned from Tveten sketch was of a person composite Samo, address Tveten knew whose address was That was supplied. Gary next for the trailer where lived in a trailer to Tveten’s mother. park The trailer car confirmed that had “TVETEN” park manager appellant’s license on it before he a Nevada plate acquired plate.
In March had seen old outside trailer. Tveten carpeting appellant’s told Tveten he was room for making soundproof playing Appellant had from Tveten because guitar. Porsche Appellant purchased appellant’s BMW, could not be California. purchased Europe, registered then told to have BMW in Nevada and Tveten licensed going would not need the Tveten the Porsche sell consignment Porsche. took About before two weeks the crimes with which appellant. Tveten license from charged, given plates dealership appellant paper so could the BMW for registration. drive Nevada card of a license plate” actually promotional “license the auto dealer’s in the form 4The plate. The trailer was under surveillance. The told that a placed manager agents dealer’s license paper reading TVETEN had been on formerly appellant’s car which now bore a Nevada license. Tveten told him telephoned appellant, Porsche had been sold and Tveten had the for him. money *23 Tveten also told that the FBI was for him and that he appellant looking should call them. When Tveten asked if he was in the appellant involved had kidnapping newspapers he had reported, appellant replied done “much worse.”
Alecia heard the and “What? telephone ring appellant say: in My picture’s the office?” then heard a car post They leave. thereafter Shortly appellant David Hacker for to telephoned asking directions Allen Hacker’s home in Happy said that Camp. Appellant were a little hot.” FBI “[tjhings getting followed agents when he left the trailer in the appellant early evening saw him enter the office and look at the bulletin post board. His hair was a glowing returned to the orange-yellow. trailer at 9:00 Three Appellant p.m. minutes later an FBI received a agent call from a man who telephone identified himself as Herb and said he understood the FBI Coddington him, that a friend looking had seen his in the office and said photo post what, that he was wanted. Asked for the caller “The in replied: kidnapping Reno.” The told the agent caller he was not sure whom were they for and would one looking have had that agents who information call. The caller gave number and agent address of the trailer phone occupied by appellant. leave,
On whenever the Sunday two asked if girls could he appellant they me responded only, think.” He once said he would them off and drop “[L]et Reno, call the so could be taken to police they and that he would to try get Later, a to Alecia heard plane Europe. ask someone on the appellant is on the telephone, “[M]y wall?” then told Alecia and picture Appellant Monica that did not have to because they found me.” He told worry “they them to him their so he give could wash off his clothing fingerprints. By trailer, surveillance, then the which had been under was surrounded lawby enforcement Two personnel. FBI who had been agents assigned interview knocked, identified appellant themselves as and asked to talk to agents who that he did appellant, not want to in replied and would speak person rather talk to them on the had out and immedi- telephone. lights gone an FBI made a call to the ately agent trailer. asked the Appellant agents outside what he do was to and was told the call was from FBI and he was answer and do as told. answered the phone exactly phone there said were at the door. He told were FBI people people and he agents should the door. He told the open agent telephone were there and said he needed girls to a go hospital. As into trailer. then assaulted broke Law enforcement personnel trailer, in looked in and broken did so another had window agent at and held him down” “go gunpoint saw He ordered appellant. then the trailer took into entered until the other who agents searched, stated at handcuffed and While held custody. gunpoint, sick, also said that the all He right. that he was and the girls again bags and that he had them placed plastic women were in a back bedroom FBI found Alecia agents because did not want “messies.” The room, aby two-by- built another its door secured Monica a room within officers, then who assumed four that was used as bar. South Lake Tahoe and Walsh in control of the found bodies of Martin investigation, plastic in bedroom of mobilehome. bags *24 (Miranda was advised of his Miranda rights
Appellant Arizona 974]) at time U.S. S.Ct. 16 L.Ed.2d 10 A.L.R.3d the 436 [86 an While being he was in automobile placed transportation jail. that he Martin and He said admitted had killed Walsh. transported appellant that he sick and needed Under was again help. questioning, appellant admitted had the killed them almost that he two women. He strangled on be- after entered mobilehome immediately they Saturday morning cause had and were too hard to control. He denied sexual they fought him there too molestation of the He his conduct were girls. by saying explained world, casinos, bad in the too much in the and too many things smoking drunk many drivers. to, at, was then taken and the South Lake Tahoe
Appellant interviewed Police after his Department being advised constitu- again waiving women, tional he rights. When asked how killed the two told appellant officers he had cord Martin and Walsh could find the strangled they he used inside the residence. He said he had the women almost killed into on when he them the trailer. immediately Saturday morning brought he he that he had built a When asked how controlled two said girls inside. He denied sexual room would find soundproof agents contact with the He his conduct that there girls. again explained by saying too casinos He told was much in the and too drunk drivers. smoking many had a and that was he had officers difficult agents job why police the women the were so would bagged up way bagged up police to see have the “messies.” had called being the time the were held in trailer
During girls appellant Szeremeta, an in whom he had Michael then Minnesota living acquaintance called several times before these incidents. Szeremeta testified that he Las then a gambler by met in in 1982. Vegas appellant Appellant Szeremeta, authored and had two books on an who had profession gambling. mathematics, advanced in had discussed the mathematical degree possibili- ties related to with had a gambling thought appellant very appellant sophisticated at understanding subject. Appellant accomplished card which in counting, odds his favor. In 1985 had improved Tahoe, moved to South Lake but he still visited Szeremeta. once Appellant mentioned that he was he and believed practicing clairvoyance techniques could the outcome of the cards in baccarat. predict
Szeremeta him moved Minnesota in 1986. had called Appellant about five times after In telephone that. either or March January referred to “the man in who had a woman Philadelphia” captured and held her Szeremeta received the fifth call from captive. during the time Alecia and Monica held being told Appellant Szer- captive. emeta that “I have here . . . like something going something guy if it Asked “no.” Philadelphia.” was not voluntary, appellant replied Appellant because, said, he worried that be discovered might landlord old, never came around. also that he said was close years nowhere, life was and the going man had with it. gotten away Philadelphia He told might Szeremeta Szeremeta want to if he was in the area stop by “it” was “better than could imagine.” [he] found,
When had Martin’s which been inside body, garbage bag, *25 of a FLEX-CUF around her neck. Her were then portion hands tied with Walsh, whose was in clear and rope. body inside wrapped plastic placed had three around her Her garbage FLEX-CUF neck. hands were then bags, tied front of her with body confirmed that Autopsies ligature neck rope. the cause of of both compression was death Martin and Walsh. Each victim additional, had suffered similar very injuries, including lacerations and abrasions. There bruising vaginal was in Walsh’s area outside the hymeneal and a tear of Martin’s area ring, outside vaginal just hymeneal ring. Walsh also suffered a her inside brain from blow to the head. hemorrhage A FLEX-CUF container was found in the master of the bedroom mobile- home.
A recent examination revealed a bruise on Alecia’s and physical thigh one cheek, (redness), on her and bluish in the erythema engorgement, bruising area, and torn necrotic vaginal tissue from the The examin- hanging hymen. ing could caused the physician identify that instrumentality injuries, but were consistent with of a also had insertion Monica red- finger. dened tissue in the area. vaginal
B. Phase Guilt Evidence/Prosecution Rebuttal. Defense voir of the that dire the defense conceded defendant During jurors was Walsh, he for the deaths of Martin and and that had molested the responsible conceded guilt again counsel During closing argument two girls. He had Martin and Walsh. disputed sex offenses and that he tilled that homicide guilty argued of which degree only appellant and resisting an reaction to the screaming victims’ tilling unplanned room, to the victims. into an attempt quiet when forced the plywood necks, that when on the women’s the FLEX-CUFs were Although and till them. to them them pull tight failed did quiet appellant trial. defense was called during guilt one witness Only phase had that Mr. Hacker would said in his statement opening prosecutor that a fascination FLEX-CUFs. In response that with testify appellant statement, or 1982 Allen that he had met in 1981 appellant Hacker testified card counting. in Las casinos working exploring potential while Vegas in Las counted one he knew who Vegas of several persons Appellant an in target shooting. He and also shared interest appellant cards. in accordance with testify
Allen Hacker testified that would not that use of was obsessed with prosecutor’s statement opening appellant In Allen Vegas FLEX-CUFs as a method of in a Las tilling. gun shop, described as Hacker and had discussed which he “ziplocks,” used to Allen read bags, like those tie when locking nylon strips garbage booklet, described ways from a written an ex-CIA supposedly agent, He the methods were agreed outrageous till people. no ties then or in unrealistic. interest particular nylon expressed FBI McKevitt Agent their contacts. Hacker denied subsequent telling read The in ways Anarchist Cookbook and seemed interested women. tilling people, particularly stress
Allen Hacker also described function under appellant’s inability card counters. while of a team of part gambling behavior “inappropriate” himself it attention when behavior drew appeared Appellant’s *26 Hacker denied FBI that catching telling agents appellant house was on. Allen at he told the agents was and He believed cunning, sly, disguises. expert ex- was things. that was a bumbler who did unusual Appellant appellant mathematics, did about but not act the other did tremely bright way people and most were uncomfortable around appellant. Socially, appellant people a or 13 old. was like year Hacker, rebuttal, McKevitt, the FBI had interviewed Allen agent
In who Hacker, he had appellant that when she interviewed Allen described testified con- and at cross-examination she disguises. an On cunning sly, expert be- have said ceded she could not recall whether Hacker might appellant was testified that Hacker he an at disguises. agent lieved was expert surprised and appellant subject investigation thought was too Hacker appellant intelligent get had also told the caught. agent was interested in methods of appellant killing people, particularly women.
C. Phase Sanity Evidence. that, Three defense testified in their experts opinion, appellant legally insane at the time of the offense. Mills, M.D.,
Mark J. a and at psychiatrist professor psychiatry School, of California at Los University Medical Angeles director of Program Law for the UCLA Psychiatry Institute Neuropsychiatric and director of the Forensic Science Medical Hospital, He was Group. board certified in psychiatry, neurology, forensic Prior to psychiatry. school, medical attending Dr. Mills had graduated from Harvard Law School. He had interviewed on two occasions for a total of appellant 10 or 11 hours and had discussed the case with counsel reviewed some documents to understand what had happened.
Dr. Mills offered his did not opinion suffer from appellant illness, brain organic or damage there was a in the although “negativity” lobe that be would consistent with a temporal disease. Dr. Mills delusionary concluded that for several before months and continuing several through months after the crimes suffered from a delusional or paranoid disorder of the described in the grandiose type American Asso- Psychiatric ciation’s and Statistical Manual of Mental Diagnostic (3d rev.) Disorders ed. (DSM-III-R). he had believed special deity. with a relationship A delusion is a belief not shared most systemic other Dr. Mills persons. believed believed he was from God in receiving messages very unusual forms. Green traffic meant that lights whatever he was thinking do, should red that whatever he was or about should be thinking fantasizing Yellow was Certain numbers heard stopped. warning. radio or seen on clocks also communicated from God: 46 or 45 were messages “go” disorder, numbers. was a number. Twenty-six Indicative of his about “stop” and a half before the crimes year switched from rational thinking in his He at “crazy” “magical” thinking believed this time gambling. that if he did not he received turn obey messages would out things very badly.
Dr. Mills was satisfied that was not He found that appellant malingering. of the beliefs described to him were also reflected in entries many appellant made in his and on other appellant diary with papers contemporaneously he killed he when doing knew what was described. events he ligatures he die when applied Walsh. He would Martin and knew However, since believed that that was law. against appellant and he knew if he him from God who would messages punish he was obeying personal violating he understand that was did not believe or did not appellant comply, at basis, insane Dr. appellant On that Mills opined moral law. the time of the criminal acts. crimes did not indicate months after the
Tests several given appellant delay testing. or because crazy, he was possibly psychotic of the jail, better in the structured gotten setting delusional disorder had and understood attorneys from his where received support appellant charges. reality pending Rosenthal, M.D., and as a biologist a with
Fred psychiatrist experience total and inter- for about 12 hours interviewed appellant neurophysiologist, mother, He extensive writings his father and sister. also reviewed viewed while in jail, autobiography appellant prepared police appellant, 60-page He and and FBI testing reports. reports, psychiatric reports, psychological he insane at the time legally concluded that and psychotic appellant illness be schizo- might committed the crimes. He believed that appellant’s illness, he not case of that but did not a textbook although typical phrenia, Dr. did but episode, make that firm suffer diagnosis. Appellant psychotic did not if was a on superimposed Rosenthal know this psychotic episode or a brief reactive aspects personality, psychosis borderline of appellant’s stress, at the if and had become psychotic was schizophrenic Dr. time The delusional disorder of Mills was diagnosis offenses. is as a delusional disorder diagnosis,
inconsistent with Dr. Rosenthal’s another, more form of paranoid, psychosis. specifically
Dr. had severe obsessional problems Rosenthal believed appellant lists, of notes and voluminous written reflected an endless production others, materials, his as described he his actions way thought, writing. small and meticulous very was psychotic
Dr. Rosenthal based his conclusion that appellant numbers, and about thinking history, magical delusional appellant’s and belief that he was extrasensory belief that he had perception do Dr. ordered his bidding. from God who receiving messages common of this type fairly Rosenthal testified that delusional thinking Although become and other who among persons psychotic. schizophrenics of his actions and understood was aware of nature quality and knew the death of Martin Walsh that what did would cause *28 his conduct was and unlawful condemned he not did understand society, that it was morally wrong. Satten, M.D., a
Joseph psychiatrist, interviewed three times for appellant total, sister, eight about to nine hours with and appellant’s and spoke parents examinations, reviewed the FBI and the of reports reports prior psychiatric and the documents at different times his He prepared by appellant life. also concluded that at of the time the offenses defendant suffered a from defect, mental or disease and was insane. a legally suffered from mixed long-term disorder with personality elements of several personality disorder, disorders. He also had obsessive which caused compulsive him have obsessions and feel do driven to certain things. obsessive-compul- disorder, sive disorder had been superseded briefly by either psychotic (delusional) an paranoid disorder or Like Drs. and atypical psychosis. Mills Rosenthal, Dr. Satten concluded that was insane at time of the appellant offenses. women, While understood he was appellant killing two he was and incapable distinguishing and did not right wrong understand that what he was was doing morally wrong.
Dr. Satten found no inconsistency between statement to him had he received no on the messages day lured the victims to his trailer and his statement to another that the traffic all expert lights were on the green way to the trailer. meant that there no Appellant simply was message that he should not with his He not go through did receive a plan. one stop message. Telling he received the person go-ahead sign and another that he January received it in February major meaningful inconsistency. Mills, Rosenthal,
Drs. and Satten were aware contrary views court-appointed other who had examined experts experts appellant. They lies, were also aware of use of appellant’s past deception gambling and other practices, factors which that he was not might suggest being truthful motivated lie when interviewed That by them. informa- tion did not change their view psychotic legally at insane the time he committed the crimes. witnesses offered prosecution contrary opinions. Kaldor, M.D.,
Bruce T. been court to determine appointed whether was insane at time commission of the crimes. He reviewed all available information and six interviewed relatives, friends, over hours two interviewed his days, arrest- jail personnel, officers, and others. He asked Dr. ing Michael Erickson to undertake psy- disorder, chological testing neurosis and distinguish personality psycho- sis, and Dr. Kaldor testified about the possible effect” malingering. “practice
561 mental health profession- several by interviewed intelligent in which persons He also certain to indicate symptoms. are able to tailor their responses als can be excellent mental illness who suffer from that persons observed describe. Dr. the they they symptoms because have experienced malingerers the made to in statements appellant that the inconsistencies Kaldor believed malingering. if he was be in determining could significant various experts disorder with a severe personality Dr. Kaldor concluded appellant facets, was diagnosis disorder. His a mixed personality DSM-III-R many anti-social, border-line obses- paranoid, disorder with “Mixed personality narcissistic features.” Appellant and sive/compulsive, passive/aggressive, the two and knew that he killed the women knew what was when doing a but had religion, had not his own acts unlawful. He conceptualized own ideas to him. He had his of that was very idiosyncratic concept morality organized He had no well-systematized, of what was and right wrong. that as an of his moral Dr. Kaldor believed aspect religious conception. based on his did in conduct disorder obsessive-compulsive appellant engage but when caught, of the of numbers and traffic meaning lights, perception for self-serving purposes embellished this his own exaggerated that if he he had done. Dr. Kaldor conceded to avoid responsibility what fit the v. Skinner believed version of God within People concept,5 appellant’s the of insane at time he would have to conclude that was legally the offenses. court, M.D., Bittle, reviewed M. by
Robert
a
appointed
psychiatrist
material,
and inter-
and neurological testing,
similar
requested psychological
concluded that
who
viewed
and his relatives. He also
appellant,
145,
to
of
had a remarkable
IQ
ability
was
with an
very intelligent,
beliefs,
his
and was able to manipulate
psycho-
rationalize
behavior
not
of numbers or stoplights
He did
believe
use
logical testing.
appellant’s
,
Cal.Rptr.
this court
People
5In
not disturbed these behaviors and did not seriously his daily interrupt *30 existence. At the time of the offenses was not controlled appellant totally decision with this ritual with making every and his obsessive and thoughts He behavior. had some compulsive This independence. distinguished appel- lant had who an a obsessive-compulsive from personality person suffering from major a mental illness or disorder. The obsessive-compulsive signs from God defendant were a means which rational- experienced appellant ized or behavior he justified in which wanted to engage.
Dr. Bittle a severe borderline diagnosed appellant having personality disorder with a multitude of features ele- including hysteroid passivism, ments, elements, elements, and pendent antisocial ele- passive/aggressive midadolescence, This ments. was his lifelong functioning since accounting for his behavior he over several best preceding years represented what be a would referred to as borderline With disorder. a personality stress, borderline under in a personality circumstances of special high period considered, the individual have an acute Bittle may psychotic Dr. episode. from, but concluded that not did suffer a appellant delusional schizophrenia, disorder, aor brief reactive Dr. paranoid Bittle concluded psychosis. appel- defect, disorder, lant suffered from a mental a borderline personality type, severe, that was but that disease did not to under- ability impair appellant’s stand the nature and of his his acts or from quality ability know right did have an moral or a wrong. Appellant organized system delusion in an originated external source. that all of the parties evidence could be stipulated guilt phase
considered in the that the hundreds of sanity phase.6 They agreed documents seized in trailer would be appellant’s displayed jury emphasize retained, sheer number of records and some which back of went papers his school of and which his days, many compulsive writing appeared. $10,000 further had over They stipulated cash appellant available when arrested. The also received evidence jury regarding gam- appellant’s investments, and and heard brief his bling activity very testimony by parents childhood, about his his and his beliefs. It family, upbringing, religious a viewed two the first of home movies slides videotapes, compilation in his the other of films found depicting appellant early years, being excerpts effect, agreed request jury 6The was not instructed to that but counsel that should the evidence, guilt phase about be information an instruction would formulated. trailer, former scenes with which included appellant in into film which of pornographic and her children and part girlfriend himself wearing makeup. inserted a clip at time sane finding appellant returned verdict offenses. Phase Evidence. Penalty
D. Defense through grammar high well Joanne Gamer had known appellant school, Most of her knowl- graduation. had seen him twice since but home of his who from his visits to the grandparents came edge clean-cut, normal, had been testified neighbors. were her She fastidious, well with teachers serious. He very got along neat and *31 described teacher recess. She during chess with his fourth grade played in involved and said that when appellant got normal childhood activities the matter to learn he and studied very really became involved something violent, and was never he could about it. He was not dishonest everything not anyone’s He would harm property but was always peacemaker. to to and because he did not want that him. She happen appellant school, a but she told for brief in when high involved romantically period it and they him she did not to become more involved he accepted want sexual ideas. He remained friends. He had no or bizarre sexually perverted could a with Gamer not understand good had his relationship grandparents. his Martin and Walsh. murdering had from kindergarten through high
Vladimir known Grigoriew appellant and were close together, school. lived three houses They apart, played the Marine saw each after They joined friends. other infrequently appellant As child but had in California. a Grigoriew appellant appellant visited Corps, intellectual, cultured, He and civilized with the other children. compared was He a master at indoor read books and was not or was outdoorsy physical. smoking, was about health and against board obsessive Appellant game. food, about commenting or taking eating junk drinking, drugs frequently or, he or water in bars if how bad those were. He ordered a soft drink things drink, had for the As an adult evening. appellant ordered a it would last was not maximizing gasoline criticized because he Grigoriew’s driving to save gas. drove mileage. excessively slowly, Appellant he He frustrated because or even was was not violent Appellant physical. a he wise guy. Appellant not and some children was thought was popular out turn in He would sometimes a loud voice and class. in spoke spoke he his circle of felt a loser because and become and that was depressed had friends not accomplished much school he did have a girlfriend or a car. He had very a low of himself. image
Grigoriew described as a almost appellant’s family typical average family, a model a His father was family. and was around professional, handyman the house. He was was but available if someone had a quiet, question wanted to know how something done. mother Appellant’s worked part- time, but household, most of her spent time care of the taking raising cars, children. The had family a nice house and two socialized. Church was but important appellant’s parents, appellant objected to attend education having religious classes in school. In grammar high Church, school an appellant developed interest in the Mormon joined Fund, Methodist Youth which made order girls, girls. to meet up He him got Grigoriew join with for elected purpose. girls at the first appellant president meeting. had discussed an but
Appellant becoming with attorney Grigoriew, out of college, school had not dropped saying high him to study prepared testified that after college. Grigoriew out of college, appellant dropped did unusual that caused things Grigoriew to think head, a nervous having breakdown. shaved around hung wearing white like acted fu character. Then pajamas, kung took all his and left for Las money Vegas gamble and win lot of money, *32 but found out when he there that had to be got you gamble. 21 to then Appellant joined Marine even had that Corps though they agreed a career not either military was for of them. right Grigoriew was did have a surprised appellant gam- some success as later, and bler believed was successful and In how- appellant happy. ever, him, when visited was Grigoriew dissatisfied with his life appellant and little. having with On testi- accomplished cross-examination Grigoriew he fied that had given never to permission manager appellant represent of the Tahoe Verde Mobile Home Park that Grigoriew would be appellant’s and not roommate had authorized to obtain a card appellant telephone calling in name. Grigoriew’s father, G. Herbert testified that seemed
Appellant’s Coddington, appellant child, like a normal but was a little more than had a intelligent He average. and learned to He good memory like chess at an games early age. play no was no than with the law and more disobedient other his problems boys He was of other and was cruel or violent. age. never respectful people Kindness was one his attributes. He and the strong very was gentle him, children liked looked to him. Small children liked younger up traits, He fol- did obsessive however. around him. have flocked Appellant left when the house off turning lights lowed his around parents because his Raised as a Catholic chastised his mother for smoking. room. He Catholic, to attend services regu- to objected having mother was Protestant, father, his father annoyed a did do so. He not larly while close-knit and asking family him and “why” repeatedly. questioning lived close to both sets grandparents. a rule that because did not understand family accept
Appellant hit a could retaliate his sister or does not hit he not when gentleman girl s disease and was suffered from girl. Osgood-Schatter’ another in activities as result. dissatisfied he could not physical participate he could sign the Marine he was When appellant joined Corps promised a clerk- he and selected He made job intelligence. for wanted up fit but felt and went AWOL. His category, which within cheated typist, he he father convinced him he should return. When did was given psycho- tests, as unfit discharge which led an honorable logical psychologically in December When last came home for Christmas service. than that his father noticed unusual about his behavior other nothing ran handing Santa Claus and back forth out presents appellant played there. people committing father could not his son’s conduct in Appellant’s explain crimes. nothing mother testified she could recall
Appellant’s close crimes. They pretty family, always upbringing explain In Las became more and together Vegas each other. supported life, more to share his but did lonesome and wanted someone with whom not how about He lived world. He liked science know it. go fantasy At and did know Christmas 1986 anymore. fiction what reality *33 nervous, the stress of seemed more but she it was from thought appellant gambling. had from the discharged
Neither was aware that been parent appellant Marine because of mental emotional illness. Corps criminal convictions. The that had no prior parties stipulated appellant Penalty E. Prosecution Phase Evidence. the rebuttal offered at phase evidence only People penalty to a had in the form of that stipulation represented
evidence rental would agent Grigoriew be a cotenant of the at Tahoe space Verde Home Mobile Park and that had secured service in phone name, Grigoriew’s had received an international credit card in telephone that name. instructions,
After argument returned a verdict death.7 jury court denied automatic motion for modification of the penalty trial, and his motion for after new which judgment imposing penalty death was pronounced. Before found imposing court judgment been “well and fully counsel” and ruled that the represented by murder counts and circumstances had been special reason- proved beyond doubt, able and that the factors aggravating outweighed the mitigating factors.8
II Appellate Claims A. Pretrial and Guilt Phase Issues.
1. to Placerville trial. Transfer contends variously the transfer of his trial from South Lake unauthorized, Tahoe to Placerville was denied him the to trial in the right committed, which in the crime was him vicinage and denied to a right area, drawn from a jury cross-section in representative both violation of the Sixth Amendment to the United States Constitution. also He claims selection denied certain jury him procedures statutory rights. the South Lake Tahoe
Although area is 50 to from 60 miles Placerville, in seat El county Dorado Court sessions Superior has in 7Only one verdict of open death was returned and this in not specify was read court. It did the count or counts for which appropriate penalty. determined death We have 997, (People (1997) held that is not Hines this error or a defective verdict. 15 Cal.4th 388]; People Cal.Rptr.2d v. Crittenden 1070-1071 P.2d [64 9 Cal.4th 887].) However, Cal.Rptr.2d 885 P.2d practice this rule could be troublesome a case in which conviction on one of several murder is judgment counts reversed as is not pronounced reason, each practice of which defendant is convicted. For this the better .count provide is to imposed with verdict forms for each which the be penalty count on must penalty and to impose on each count. counts, denied, noncapital 8As probation eight-year upper full consecutive violence, imposed great terms for each count basis that on the each the offenses were involved *34 vulnerable, premeditated, the victims particularly multiple were and there were victims. The commuted, court specified 32-year should the death sentence be reduced or the term was to be to prior days served reduced commuted Credit for time or murder terms. served and conduct credits was awarded. and in Placerville for in the Tahoe area arising Tahoe actions South Lake for the Sierra Nevada Mountains. in of actions the “Western arising Slope” the months winter during a of continuity proceedings division facilitates ice, from the snow, make related road closures transportation and when of Procedure section 199 difficult. Code Civil Tahoe Placerville region division, County, in Dorado jury El accommodates that providing the be from residents of supervi- court “shall drawn venires for superior district, thereof, the court will sit such within which sorial a portion of adjacent supervisorial trial from such other immediately and residents thereof, court rules. be local superior district or as may specified portion veniremen court in the of shall serve the sitting geographic portion Such trial venires jury this section and such court rules specify from which county drawn, to each resident rules shall afford eligible shall be such provided a venireman. for selection as trial Such of such an county opportunity discretion, in its order a venire the interest court in may, countywide justice.” who sat in South was tried before Judge Finney, regularly were conducted in
Lake Tahoe session of court. Pretrial proceedings Judge Finney South Lake Tahoe. From the outset of those proceedings ato right concern that extensive threatened publicity expressed That the trial itself After the began. fair trial. concern arose well before denied seal hearing a defense motion close magistrate preliminary thereof, in the sought the defense a writ mandate reporter’s transcript a directed issuance of El Dorado Court. Judge Finney County Superior the defense. He writ of mandate the relief granting sought peremptory trial found that the defendant’s to fair would right a substantial likelihood that alternatives to be if closure were not ordered found prejudiced closure In so observed that rights. judge would not protect doing television, case as there had been numerous about the on radio reports relied on by well and the local major as newspapers newspapers area credible The South Lake Tahoe from news sources. community 40,000 had a under which a would be summoned jury panel population That, to the fact that the victims were local sympa- addition people. thetic, no and the nature community, the defendant had substantial ties likelihood and probably evidence created substantial anticipated not be in the “virtual that a fair and unbiased could certainty” picked a fair right the court acted defendant’s unless community protect trial in the vicinage. at stage this the concern appellant expressed
Notwithstanding close all hearings suppression and his motion to proceedings, subsequent *35 seek, motions9 he did not the location consistently of opposed, changing that, the trial to Placerville. Counsel explained notwithstanding “poi- Tahoe, soned” at South Lake community believed that Placerville was a they and, considered, very conservative all community things it thought be more in might the case South Lake advantageous try Tahoe. trial venue was first discussed on January when prosecu- tor that the court have suggested defense counsel on the record the place reason no for of venue to request change another or to move the county trial “over the hill” Placerville was made. The was concerned prosecutor there later be a of claim error or of might counsel if this were incompetent not done and need suggested that he not be and the record could be present sealed to avoid revelation of defense Defense tactics. counsel stated that the matter could be discussed in chambers.10 Tahoe.
since Tahoe and South Lake Tahoe. Mr. psychological pathology Defense, their close Coddington’s raised expert with gambling played a reasons: “For the house in Las During 1978 to 1983. Since Revenue environment, California, during South casinos at services of Dr. Robert Custer 1972 to dington’s to be actually crimes, much [H motion for “Based “By 10Counsel 9In judge During tried in his own 1985. ordering to certain criminal acts Lake Tahoe and virtue on the this Mr. losing 1984. Mr. Steve Service case on the stated: Stateline, Placerville. proximity HO period, Coddington’s testimony subsequently change had a best interest in this case is to be tried in South Lake Tahoe. issue Vegas, many Tapson, Mr. this compulsion period, significant particular, for tax “I hearing seven-year period immediately Tapson very Meyer Mr. of compulsive Nevada. am of venue in this case.” thousands of dollars. Mr. one-and-a-half-year vicinage [1Q that I Tapson and Richard Stateline, Mr. absolutely profound Coddington evasion. associated Placerville, significant Steve sole confirmed their decision has been is in private on became exposure it’s believed managed anticipate Coddington gambled source is a hollow has tried from Bethesda. The doctor is an which Tapson [1] residents effect Mr. convinced gamble, gambling. employed by with the Meyer role in triggering that defense indicates The defense the Public Defender’s Offices in both Placerville and in the are practice served as Public Defender for Dorado focus of an intensive two support section 1538.5 motion to period immediately prior defense alleged right, [1[] have Mr. suppression murder cases before disease of that if the Court Dr. South Lake Tahoe have a that he Coddington’s - long-term, day-to-day exposure Coddington each tried cases before and that the Court. was his the Public Defender’s office in South Lake counsel was in contends Custer Coddington in casinos on a herein. believes with prior to the lost mental compulsive a formal hearing, private earnings has can fl[| as much as an [sic] that for lost the aforesaid cash. Lost his [sic] ‘mental state.’ Counsel for the offer resided in South Lake investigation by breakdown doesn’t Mr. practice commission juries that Mr. statement internationally recognized as a had to the communities of suppress defense daily testimony regarding gambling. Coddington’s El . . would have to strategic professional in South Lake Tahoe close the juries familiarity subject basis, in Placerville from Coddington’s right which has evidence HD of the subject in South Lake their reasons, [U] By winning to the casino county retained the $160,000 incident, the Internal hearing ultimately Mr. Cod- obsession virtue to gambler. with the strategic closed, Tahoe, from grant Mr. ffl] *36 a then concern in Dorado County of El Attorney expressed District 16, 1988, a to copy Judge with February letter to defense counsel dated at Lake Tahoe trial the South the case scheduled for that Finney, in the South Lake that had been extensive publicity session. He noted there It be that would community. area and that were from Tahoe witnesses many or other to contact the witnesses improper difficult for avoid with jurors counsel. On offered to confer with defense influence. The district attorney 4, 1988, the administrative presiding judge March Judge Fogerty, apparently Placerville, the session of ordered case transferred Placerville in the that order Judge Finney court for Notwithstanding further proceedings. in South Lake Tahoe. On March continued to conduct pretrial proceedings a the trial date to later Placerville session. continued Judge Finney to Defense to the transfer and objected parties permitted counsel citing on the The district letter attorney, by submit briefs transfer question. 705], 510 P.2d Cal.Rptr. Jones Cal.3d People that, consented, the concern unless the defendant transfer would expressed to to a since drawn jury vicinage juries violate defendant’s right of of serve in the excluded residents the South Lake Tahoe Placerville session noted, however, area. The that Jones that a jury district if attorney suggested is drawn the entire is satisfied. Judge from county vicinage requirement that did not then advised counsel for defendant he believe Fogerty defendant trial Lake because of the could receive a fair in South Tahoe a extensive that he was venire for ordering countywide jury publicity, selection, and he ordered all be heard pretrial proceedings at the court. before the South Lake Tahoe session of Judge Finney for of the March by transfer motion reconsideration Appellant opposed 4 transfer of argued order. He transfer denied him equal protection Amendment the law in of to the United States violation the Fourteenth to have commit- Constitution as was the criminal defendant alleged ted a crime in Tahoe to be trial in Placerville undergo South Lake forced a with drawn from the entire since South Lake Tahoe session jury county in He also denial be tried drawn began right by jury 1977. claimed of Be- from cross-section of community. comprising representative Lake been to the extensive cause South Tahoe residents had many exposed community in Dorado casino environment that is not shared members of other El Tahoe, themselves, gamble have County. of Lake don’t often Residents South if [H Moreover, gamble. significant or Lake friends relatives who come to South Tahoe flO casinos, Tahoe either either have friends or relatives numbers South Lake residents work significant have in casinos. Defense have observed that number who worked counsel ftO have people past selected service cases in Lake Tahoe at one time another South Tahoe employed by the The defense believes that residents of South Lake been casinos. flD supporting uniquely appreciate stresses with one are suited to understand associated living professional gambler day-to-day as a in the casino environment. reasons, strategic would ask case for reasons remain in South “For these defense this Lake Tahoe.” would face publicity, they obstacles to service not shared residents other parts would county. They also face the travel hardship daily of at least 130 miles over the Sierra Nevada Mountains for three months in Placerville, order serve in all of which would result in a jury panel would be inordinately of the South underrepresentative Lake Tahoe commu- nity, denying defendant the to be tried right a by jury a cross- comprising section of the community.
At this the district point reconsideration, the attorney motion for opposed observing Code of Civil 1977, Procedure former (Stats. section 206c ch. 229, 1, 1026, Proc., Code p. now Civ. 199), § permitted § trial countywide venires. He jury argued wide venire satisfied county constitutional and district vicinage concerns and that O’Hare v. Superior Court 43 332, Cal.3d 86 766], Jones, P.2d Cal.Rptr. 729 People supra, 9 546, 14, Cal.3d 1988, were On dispositive. the court April indicated that defense counsel had in explained chambers that the defense wished to proceed selection jury to process determine if a fair trial could be had in South Lake Tahoe.
Judge denied Finney reconsideration of the transfer order and directed the commissioner jury to prepare panel 300 prospective jurors randomly selected from the entire county.11Judge offered to the Fogerty case or to try have someone cover his court if Judge elected to Finney it. The trial try held in Placerville with Judge Finney presiding. moved to the
Appellant venire quash jury when 30 of the 300 in the prospective jurors first two were from the panels Lake Judicial Valley District that the encompasses Lake Tahoe area. An evidentiary hearing the issue of random selection was held on June 1988.12 offered Appellant 72,000 evidence that there were names on the source list from which jury selected, 19,000 venires were of which persons were Tahoe area residents. In trial, 6,000 selecting for this potential jurors were excluded persons because their names had on other venires appeared the during Of those past year. 3,000 excluded persons, were from the Tahoe area and were excluded even 2,061 were not though they ineligible serve. Of the selected in the persons 2,000 comply 11To with that jury order the requested commissioner prospective jurors randomly be countywide selected jury questionnaires. sent pool was selected from a Vehicles, list Department drawn from the of Motor registration, voter and tax assessor accomplish county records. To process, wide selection the records were every reviewed and picked by 2,300 30th name processing data personnel, resulting pool prospective in a jurors. larger pool from which the probably selection was made persons excluded who had year been selected earlier in the pool, for a Lake Tahoe however. parties 12The stipulated voir dire should hearing commence even before this could be held.
571 Codes, 1,559 run, had ZIP Codes Tahoe area ZIP 502 had computer sent to those persons from the Western Responses questionnaires Slope. 1,235 After area and from the Western Slope. 339 from the Tahoe totaled as came in and they eliminating persons reviewing questionnaires serve, in a stack commissioner them placed were ineligible who first three 90 and one groups came in and used the in 5 in first create four for this trial.13 Of the panels persons panel, 90 21 were in the second from Tahoe area. Of panel, persons third included from persons the Tahoe area. The of 90 panel from area; from area. fourth had no one the Tahoe Tahoe 30-member panel and statis- also an mathematics testimony by offered expert would that one that a random entire county tics would expect sample 19,000 area, the Tahoe based on potential jurors from persons produce others, 52,700 from Tahoe area. Tahoe area or 26.7 percent 3,000 each had been a random names from area that Excluding dropped, *38 the area. Even should from Tahoe selection produce prospective jurors the jury those from Tahoe area who to the considering only responded the area in one 64.6 from Lake Tahoe would questionnaire, expect panelists number of Tahoe area considering a random selection. After that a higher was the than Western excused commissioner persons by jury Slope persons, the witness concluded that there was one chance in 800 that the selection that the be might was random. The witness acknowledged process disparity the attributable to in which the names were selected from the manner received, as from the Placerville area being were those questionnaires they earlier, be the Tahoe area received affected might by percentage excused were they ineligible the commissioner because by jury persons a serve as or had another excuse.14 From mathematical jurors viewpoint, area as those on because from the Tahoe do not as persons quickly respond the did not the method jurors Western the consider which Slope, expert by for an achieve were selected this trial to be means which to by appropriate randomness. that the did not that the evidence established venire argued a Tahoe area He
include cross-section of the representative population. the number unable demonstrate that acknowledged being disproportionate county departure practice individual in the 13This was from the when venires for courts tag tags juror questionnaire, For made for each were selected. those venires mixed, required took out number placed jury in a drum and after which commissioner tags. selecting appellant’s jury commissioner did not consider In the venire for trial the questionnaires. prospective juror jury residence of a in her review of the by the court jury had been instructed that she should 14Apparently, commissioner hardship. jurors who any person Tahoe area of travel Tahoe-area excuse from the because however, months, during the excused or deferred summer worked in construction were seasonal, pure factor that affect randomness. because their work was would excuses from that area was Ulti- hardship granted persons improper. defect in the selection mately, identified was use of the procedure first 300 returned from the questionnaires source list to which 2,000-plus That, had been mailed they venire. counsel not a random argued, was not He noted sample. Judge Finney persuaded. questionnaires were returned individuals by acting whenever the individuals independently, them, decided to fill them in and mail had been stacked as they That, came in. he reasoned was as random as can “probably you get.” also concluded judge real was not about random- complaint ness, but lack of from the representation vicinage. Defense counsel insisted that the motion to was based on both quash grounds.
The court this to the rejected venire challenge pretrial again posttrial when offered as one basis for a motion for trial.15 new venire, denying 15Before quash Judge Finney the motion to had offered to have an prospective jurors additional 80 or more selected from the Tahoe area in order to cure what appellant argued underrepresentation an prosecutor, from that area. The while not far, conceding any jury defect in the procedures agreed. selection used thus Appellant’s attorneys accepting reserved their decision on pending ruling. the offer the court’s denied, explained pretrial court the denial of the motions: “The motion is or the challenge jury venire denied is on the issue of randomness. The Court believes that there is no jury randomly demonstrative failure jurors, commissioner to select save exclusion, 3,000 except jurors or so that were excluded from both the Lake Slope Tahoe Basin area and the Western area. “The Court finds that that was done in the process normal course of selection to avoid duplicity of service jurors, appropriate those and that is an function commis- *39 sioner. excluded, “The cognizable Court further finds that no any class has been nor that there is representation cognizable other jury. of class on the “And, further the Court finds that a County community cross section of the or the is represented jury process. in this selection “Further, finding the Court makes a that the method used was similar to that used to select juries, County. all other both civil and criminal in the with, “The Court statutory substantially complied further finds that the mandates been have systematic any and the Court further finds that no any County exclusion of class or area of the place by has taken jury by the commissioner or her jurors. method of selection of testimony “The Court further probabilities believes of the doctor on mathematical any does not demonstrate that by way jury there’s been discrimination or exclusion process place. selection has taken drawing “There’s been no of the jury process, Court’s attention to facet of the selection 3,000 areas, except jurors anything the exclusion of the from both that would indicate that but a except, arguably, way random selection has been used for the that the jury commissioner pile questionnaires. took the names off the of returned “The jury testimony Court believes that the commissioner was credible in her when she stack, says put came in she them in a and it would seem to me that would assemblage constitute a random of the documents. “And, lastly, guess I I should comment it seems to me—and I don’t mean to demean doctor, profession discipline, very or his or his but it to me that the seems word ‘random’ you precisely got jury means that can process. have results as we them in this selection Constitution, made ap- to the United States Amendment Sixth Amendment, a criminal grants the Fourteenth to the states by plicable the state and district of to trial an “by impartial jury defendant the right committed, been district shall have have been which wherein the crime shall has a county When the Legislature specified ascertained law.” by previously district, satisfies the vicinage from an entire county a a drawn as judicial jury Court (Hernandez v. Municipal that is guaranteed. right thereby 547].) 781 P.2d Cal.3d Cal.Rptr. in and cross-section “Vicinage representation
As we explained Hernandez'. Amendments. and Fourteenth some- Although are the Sixth guaranteed by and cross-section times used erroneously interchangeably, vicinage represen- criminal trials. The to cross-section right tation are discrete jury principles assures a criminal defend- is a which representation demographic requirement, or intentional exclusion ant a trial selected without by jury systematic racial, economic, social, cognizable religious, political geographical tried an It is to be right groups. designed protect [Citations.] is vicinage right geographic require- impartial jury. [Citations.] flO from ment. It is the of a criminal defendant to be tried drawn by jury right It is unrelated to the ideal of the area in which the crime occurred. [Citation.] and has to do with the defendant’s place impartiality nothing [citation] a defendant in a residence. is assertable vicinage right Although trial, criminal in the criminal system vicinage require- present day justice ment in community judgment also offended protects right pass Court, criminal (Hernandez matters.” 49 Cal.3d at Municipal supra, p. 1.) fn.
There is no contention that the district judicial merit committed district from which these offenses were supervisorial Lake which the venire was drawn for the South Tahoe session “Now, mathematician, you’re me that if get probabilities, if we into and I’m no it seems to event, i.e., single going you talk cannot take a this selection probabilities, about therefore, probabilities say, it and we’ve process, apply discipline of statistics or *40 that there is a lack of randomness. demonstrated venire, county they a were consistent jury processes “If we had 15 selection of wide case, the representation range alleged in the that’s in this then I would think their probabilities meaning more to the Court. would have stated, challenge. the reasons the Court denies the Defendant’s “For vicinage, being jury tried in his that the “. . . The Court further finds that the Defendant is vicinage right a both people vicinage, from his and that a is of process selection has included Defendant, exclusively the Defendant.” People the and both of the and not supplement the the venire with additional Appellant subsequently declined court’s offer to ground with jurors from the Tahoe area on the that to do so would be inconsistent prospective then that all had asked jury the claim that selection had not been random. Counsel stated unnecessarily arbitrarily at countywide for was “a venire selected random which does anyone area where the crime was committed.” exclude from the from determine the size of the area from court. The Legislature may
superior of a be drawn districts. At time by establishing judicial which jury may now, one offenses in as El Dorado County only appellant’s The had not authorized district—the entire judicial county. Legislature districts, smaller such division of the into based county population, Code, Thus, (Gov. 69640-69650.)16 for vici- division was impermissible. §§ the entire was the district ascertained by nage purposes, county previously of a South law within the Sixth Amendment. meaning designation court, session, Lake could not that controlling Tahoe or sitting change law. Government Code section authorizes the establish- Although 69751.5 ment of court “sessions” in cities more than 30 miles from the superior 7,000 courthouse if the has a city exceeding county population persons, a session of the court does not the district for change designating superior fact, In reference to “district” in the only superior purposes vicinage. court Lake Tahoe was in a rule established South session provision the boundaries for the session identical to the boundaries of the making court district then in effect. Ct. El Dorado Local County, municipal (Super. Rules, 3; id., rule see now rule Lake Tahoe former No. 2.00.09 pt. [South Area, defined].)17 session to hear actions in South Lake Tahoe arising a his crimes was accorded drawn from which jury vicinage were committed. Neither the Sixth Amendment nor the California statutory scheme for selection was violated draw. countywide jury a
We also claims that he was not tried selected reject by jury from a venire a fair cross-section of the community representing He selection was not random. 12.3 jury process argues percent from the Lake Tahoe area and notes the venire was South 300-person showed that the who testimony expert opined disparity selection was not random. He does not make based on any argument process facts, however, those asserted but claims that trial before the ultimately area, Lake that had no residents of South Tahoe jury “wrong jury,” error” that a demonstration of “structural se reversal without requires per The evidence did not these claims and no basis for prejudice. support in the selection was drawn from reversal appears process. There no selected from entire randomly county. systematic panel Lake Tahoe area. intentional exclusion of from South jurors erred in the trial to We need not decide here whether the court moving of defendant or the concerns of the Placerville over the whether objection provides superior that a court district must have 16Govemment Code section 69644 114,000. 250,000. (Cal. County population of El population of In 1988 the Dorado B-3, 13.) p. Statistical Abstract table *41 judicial superior take notice of the court rule and of a 17Appellant’s request that the court lodged granted. court map supervisorial of districts with the is 1987 575 a fair trial in South not receive might that defendant judge prosecutor of the within the meaning cause for the transfer Lake Tahoe constituted good Defendant was tried Court.18 rules of the El Dorado County Superior local a local rule violation of The possible the district Legislature. specified is not a basis reversal. belief, which considerations upon the due process
Contrary appellant’s for a on the defendant’s motion defendant’s to a right hearing a criminal 841; Court, People Rules of rule (see are founded Cal. venue change 90, 771, 865]) no P.2d have (1991) 53 809 Cal.3d 804 Cooper Cal.Rptr. [281 be made for districts which may within assignments judicial applicability such assuming right, or other cause. Even good administrative purposes for reconsideration of a full on his motion hearing was granted order. Judge Fogerty’s him claim that the transfer order denied equal
We also defendant’s reject and resulted in cruel and unusual No imposition protection punishment. true, trial. It is as an order the location of a changing attends punishment 1033, (a), the trial of a defendant that under section subdivision argues, to another It does not county. defendant who be moved objects may follow, however, that a defendant to trial within the district who objects is denied which the offense occurred but in another charged city equal to transfer to another county. a defendant against objecting protection court within the Defendants do not have the to trial in a right particular cases for trial is the administrative among district. The assignment Code, Court, 69508; (See Rules of of the court. Gov. Cal. responsibilities § 205.) rule
2. Denial motion to evidence. suppress broke into agents As the above of evidence who summary suggests, (3) Because trailer had neither an arrest nor search warrant. meaning is unreasonable within entry warrantless presumptively 740, (Welsh (1984) Fourth Amendment v. Wisconsin 466 U.S. 748-749 [104 2096-2097, 2091, 732]; L.Ed.2d v. New York 445 Payton S.Ct. 80 1371, 1380, 639]), the bear the 63 L.Ed.2d People U.S. S.Ct. [100 or another burden of circumstances establishing exigent exception (1988) Cal.3d v. Williams (People warrant requirement justified entry. 221].) At the hearing, 756 P.2d evidentiary Cal.Rptr. thereafter, filed and at in their memoranda of and authorities points Lake Tahoe session for permit proceeding transfer of from South 18Those rules (See County, El Dorado Local “good party Super. of a or the court. now Ct. cause” on motion Rules, 2.00.09.E.) rule *42 motion to exclude evidence taken from subsequent argument appellant’s officers, the trailer and the to statements made the the arresting People to establish that cause existed for the to believe that sought probable agents trailer, the victims were in the circumstances exigent justified entry because there was also cause to believe lives were probable girls’ and that the had danger, not manufactured that agents exigency.19 not, not, did and does the existence of cause at Appellant dispute probable 8, 1988, the time of the break-in. At the of the January argument suppression motion, counsel conceded that cause to believe the lives appellant’s probable were in had been established at the moment girls danger break-in. He that there was no cause to argued only believe probable were in trailer and in from his own statement to FBI girls danger apart Baker when Baker called the trailer Agent while Agent Barcklay door and to to He that this knocking asking speak appellant. argued statement—that the were in the trailer—was girls product Agent unlawful demand for admittance to the trailer. Barcklay’s There evidence at the as to what said to conflicting hearing Barcklay testified that he asked appellant. Barcklay only speak appellant. Agent Alexander, “FBI, who overheard testified that said Barcklay, Barcklay open conflict, the door.” The trial court did not resolve instead that ruling cause and circumstances existed from exigent probable apart anything ap- said to Baker while at the door. Barcklay was pellant court, In this first that because a warrant could have been appellant argues trailer, obtained before the failure to obtain the agents approached rendered the warrant and search unlawful. He also as he entry argues, did below, that his statement to Baker was in Agent response Barcklay’s unlawful assertion of and therefore not be relied on to authority may justify into the trailer. entry
a. to obtain Ability warrant. that the circumstances to the warrant argues exigent exception be invoked in circumstances in which law enforce- requirement may He ment have insufficient time to obtain warrant agents prior entry. theory agents 19Appellant rely disclaimed intent on a the FBI created exigency People on which the relied. the court stated that the evidence could establish When circumstances, agents manufacturing exigent were not counsel said that he why prosecutor suggesting idea referred to that and denied that. “We are not no missing are suggesting exigency people presuming that. The is created four their lives they danger. question probable cause is to believe that are in this mobile home where broke in.” *43 Therefore, the trial below. theory that he did not his first argue concedes Nonetheless, since claims on the appellant court made no findings question. ineffective assistance his trial rendered constitutionally that attorney below, the claim. address and reject to make this we argument failing merit, either of the cannot satisfy prong Because the claim lacks appellant coun- He cannot establish that test of ineffective assistance. constitutional to seek exclusion of the evidence sels’ was deficient failing performance failure to he counsels’ on this or demonstrate that was prejudiced ground (See 466 U.S. 693-694 Washington do so. Strickland [104 2052, 2067-2068, 674]; (1987) 43 L.Ed.2d v. Ledesma People S.Ct. 839].) P.2d Cal.3d 217-218 Cal.Rptr. the court ruled on the motion to evidence
Following argument suppress that, from said on anything appellant telephone, probable quite apart in circum- exigent cause to believe that the were the mobilehome girls stances a existed. had disputed only warrantless justifying entry in the cause to believe the mobilehome. probable missing persons were in the mobile- We cause believe victims agree probable home existed to the door. Evidence time two FBI went prior agents offered at the on the motion to evidence evidentiary hearing suppress 18, Knowles, showed that the FBI agent to 9:00 prior p.m. Monday, May of the combined law enforcement effort to locate four charge missing were believed to been knew that a who have persons, kidnapped, person at model- had interviewed several various resembling young girls appellant in the Reno area and had to meet two of those ing agencies arranged girls and their in the South Lake Tahoe area on the the four day chaperones had not far from the car been found abandoned disappeared. chaperone’s of the as location mobilehome. The FBI had learned identity appellant trailer, had who knew that witness Tveten identified person occupied a a auto license. car which used TVETEN appellant owning dealership Another witness had a car with what she recalled as “TVTEEN” placed at a had interviewed teenage license studio where modeling suspect fire- models. Tveten told the officers investigating appellant possessed that a based on descriptions arms said sketch composite suspect other models and model resembled agency employees given by teenage he building The officers also knew that had said was appellant. appellant room the mobilehome. FBI ánd local law enforcement per- soundproof drive had the mobilehome under surveillance saw appellant sonnel who on his return. During from the trailer and to avoid surveillance away attempt to believe he was in a manner that led them drove trip appellant either to be wearing wig to avoid followed. He being attempting appeared before shortly or had colored hair. Moreover at p.m., 9:03 unnaturally mobilehome, FBI, that a friend assault on the had called the stating him about the Reno told him that the FBI wanted to talk to kidnapping in the office. The latter was untrue. No appellant’s picture post in the been posted community. photo break into the the decision to immediately developments preceding heard
trailer included the When called the FBI to say following: him, Baker told that Baker was not wanted to talk to Agent in the took number and involved directly investigation, appellant’s telephone *44 address, in with him. Agent and told someone would touch get appellant Knowles, the then detailed an team to go interview agent charge, trailer to talk to call afforded the an agents appellant. telephone oppor- considered him a to without tunity revealing they speak appellant the either seek on appellant’s response, agents might suspect. Depending or, it undertake a consent to search if was believed necessary, “protective i.e., the for the sole of determining “a of sweep,” sweep premises purpose residence; there victims in that not for whether or not in this case were . . .” the evidence . purpose obtaining any trailer, on the door of the the lights testified as he knocked Barcklay He at the door and he heard a voice in the trailer went out. remained when FBI, was, he who it identified himself and the other as said asking agent said wanted to Alexander testified Barcklay speak appellant. Agent “FBI, the door.” testified that the inside said he did open Barcklay person to talk then Barcklay not want to talk to them now and wanted by telephone. the trailer and the inside asked heard the inside when ring person telephone wanted, that the FBI was on the and he what Barcklay responded phone a radio transmis- the to answer the He also heard wanted person telephone. trailer, the to “hit” the followed sion from Knowles Agent directing agents seconds, a similar order from who was at the scene. Within by Agent Joyce at the trailer the window. Agent Joyce breaking Knowles, Agent at the South Lake Tahoe command with post who was Baker, at the when Joyce had trailer request Agent telephoned had Baker that said by girls went out and been advised lights trailer, to assault the trailer. were alive in the then instructed agents at the trailer. It was stipu- was the Agent Joyce agent charge Special he went to that he had the same of events as Knowles when knowledge lated Knowles He a team of to back two whom agents up mobilized site. of the trailer. to the vicinity to interview appellant, proceeded dispatched to interview the occupant just As the two Joyce agents assigned parked, heard the officers interviewing been directed Knowles to do so. Joyce out. Concerned in the trailer go he saw the lights on the door when knocking situation, the command post telephone he asked about the developing radio that did so. When advised the trailer. Baker Agent occupant trailer, in the Joyce were alive Baker that girls told Agent occupant heard had not to “hit the trailer.” Joyce at the scene ordered agents command. Knowles’ door of the trailer was at the agent observed Joyce
When Agent in, and went took his broke window gun, difficulty breaking Joyce having trailer, to the back of the running trailer. He saw into the partially down, at until the and held gunpoint him to halt and lie ordered Joyce the front door took custody appellant. who came through agents bedroom, to a where an the back door and went then admitted agent through the murder Lake Tahoe officers discovered he saw the Two South girls. and asked those officers took charge, in another room. At that point victims trailer, it a search while sealing the FBI vacate agents trailer from seven to 10 obtained. The FBI were in the agents warrant was minutes.20 *45 for the
The trial court remarked that there was overwhelming justification a that the FBI acted in what was really and commented entry warrantless in the to believe the victims were restrained Probable cause way. agree. We in existed even before Agent Barcklay mobilehome and were danger knocked on the door and told Baker on Agent telephone appellant Moreover, not establish any in the trailer. the record does were girls FBI, otherwise, deliberate or on the lead investigating delay, part it shows that in a warrant. To the contrary, agency, obtaining 18, routine FBI afternoon of were May agents following procedures a in agent had discussed their evidence with special obtain warrant. They cause it to advise field whether agents probable Sacramento whose job had taken the next step existed. obtained his Having opinion, they for a formal legal their the United States Attorney information to presenting and, had contacted the United States Magis- opinion anticipating approval, be available that trate in the South Lake Tahoe area to determine if would under surveil- FBI and other law enforcement evening. agents lance, the FBI in agent but no to contact him had been made. Wliile attempt the United States Attorney from charge awaiting response heard that the FBI called and said he had cause inquiry, appellant probable would be contacted and talk him. was told he wanted to with was needed to togo to interview him. No warrant agents dispatched support of the at that time. The affidavit removed from the trailer 20No evidence was agents’ observations subsequently did refer to some of the warrant that was issued search during sweep, however. 580
trailer in an effort to to his call. interview own response Only events, events subsequent rapidly developing precipitated himself, necessitated action the warrant. This was not a obtaining prior situation in the officers for which waited circumstances deliberately exigent (See in order to to the warrant United exploit exception requirement. 599, (7th 1984) 602.) States v. Dowell Cir. 724 F.2d of the authorities relied None by appellant, proposition circumstances to the warrant exigent does exception requirement apply law enforcement time to when have seek warrant before agents telephonic his claim that a warrant was here. None entry necessary involved support to rescue victims whose lives were believed to be in entry kidnap reasonably When there is a need for official action and no danger. compelling warrant, time to secure a circumstances with exigent excusing compliance (Mason (7th 1995) the warrant exist. v. Cir. 47 F.3d requirement Godinez 852, 856; 1300, (7th 1993) 1304.) Arch U.S. v. Cir. 7 F.3d A reasonable home, of an threat belief imminent to life or welfare of a within the person within, cause to believe that a is probable reliably missing person reported aid, a reasonable belief that a within is in need are well person recognized (See circumstances that a warrantless Welsh v. exigent justify entry. Wisconsin, 740, 2091, 2096-2099]; 466 U.S. 747-753 S.Ct. supra, [104 41, 48; (1st 1999) Fletcher v. Clinton Cir. v. Town 196 F.3d People 522, 631, 290]; (1991) 53 Cal.3d P.2d Wharton 577-578 809 Cal.Rptr. [280 1006, 185, (1988) v. Lucero 44 Cal.3d 1017-1018 750 People Cal.Rptr. [245 654, 1342]; (1986) P.2d v. Duncan 42 Cal.3d People 97 Cal.Rptr. [227 2]; (1976) 720 P.2d 16 Cal.3d People Ramey Cal.Rptr. [127 1333]; 545 P.2d v. Wilkins People Cal.App.4th *46 743]; (2d see also 4 & Cal. ed. Witkin Criminal Law Cal.Rptr.2d Epstein, Evidence, 2377, 2804, 1989) of and cases Exclusion Obtained Illegally p. § cited.) in The warrantless in those circumstances is not “unreasonable” entry of the Fourth Amendment. In circumstances such as those contemplation case, to in this immediate action was were necessary. agents obliged warrant, otherwise, until a or could be rescue of victims delay telephonic obtained. contrast, 1413, (7th 1987) in v. Patino Cir. 830 F.2d on U.S. which
By
relies,
made
the home of an armed
warrantless
was
into
entry
a
of
to arrest her and
also
robbery
suspected
participating
suspect
companion
to ensure the
in a series of robberies. Several officers were available
suspects
obtained,
a
and the
were not
did not
while warrant was being
suspects
escape
as no victim
had been located. Patino is clearly distinguishable,
aware they
1990)
F.2d
(8th
In
v. Ducchi
Cir.
held in
home.
U.S.
being
into the home of a
who had earlier
warrantless
made
entry-was
suspect
of cocaine.
there was no
Again
and taken to the home a package
picked up
held in the home.
reason to believe that a victim was being
time,
Therefore,
at
earlier
cause existed
some
assuming
even
probable
there no
of the Fourth Amendment. Not
there was no violation
warrant,
a
but no warrant was needed for
deliberate delay
obtaining
to
his call to the FBI. Inasmuch as
interview
attempt
appellant following
to
in a
where
had a
to be—at defendant’s door
were
agents
place
right
made them believe that imme-
seek an interview—when
events
subsequent
the failure
diate
without
the warrant
entry
necessary,
completing
process
to have obtained a warrant at
time did not violate
appellant’s
Fourth Amendment-based
No Fourth Amendment
interests
rights.
privacy
are
an
seeks a
invaded when
officer
consensual interview with
suspect.
circumstances
when the
did so here
Exigent
arising
agents
justified
entry.
This was not
situation in which there was deliberate
delay
obtaining
or a
warrant
warrantless
officers
to
entry
attempted
justify
(Cf.
(1948)
grounds
Trupiano
convenience.
United States
As noted the trial court found it to decide whether unnecessary because, demanded asked to Barcklay entry simply speak ruled, court cause to believe the in the trailer probable missing persons existed from statement. We with that apart appellant’s agree ruling. evidence was sufficient to that court’s that even before support finding said Agent Barcklay anything cause existed to believe appellant, probable trailer, and was them in the missing holding kidnapped persons and that their lives were in It is not to consider danger. necessary statement that the in the girls were trailer to conclude that the exigent circumstances to the warrant exception requirement justified entry.
The trial court did not err in motion to denying appellant’s suppress evidence.
3. Exclusion evidence mental illness. of of In advance of the trial session at which guilt phase appellant planned offer the court and counsel discussed the of the psychiatric testimony, scope conceded that would be admitted. Appellant
mental state evidence admissible, but sought that no of “diminished capacity” evidence “diminished be to testify regarding would ruling expert permitted could offer relevant evidence any The court ruled that the defense actuality.” However, be asked of the no could on mental defect or disease. questions or how such defect or either or the about whether People expert or or if it would affect defendant’s mental state actuality, disease would deliberate, intent, or unless the to form an premeditate, impair ability that he believed out of the testify, jury, would presence psychiatrist The court did not and deliberate killings. premeditate questions regarding extended that ruling preclude any hypothetical to deliberate or defect or illness on a ability effect of mental person’s mental illness at the guilt then offered no evidence of premeditate. that the court erred. He now claims phase. limitations on an restrictive overly reading statutory ruling on whether a mental illness. Expert opinion
admission of evidence of of a to form a mental state that is an element defendant had the capacity intent not admissible at the guilt or did form such is actually offense charged a trial. 20 Cal.4th 960-961 (People Smithey phase introduction 1171].) P.2d Sections 2821and 2922permit Cal.Rptr.2d a defendant actually mental illness when relevant to whether of evidence of offense, but do not a mental state that is an element of charged formed a defendant had the mental to offer an on whether an expert opinion permit the defendant actually to form a mental state or whether capacity specific that a form of mental a mental state. An opinion harbored such expert’s disease, defect, “(a) mental or mental disorder shall not Evidence of mental 21Section 28: state, including, but not limited negate capacity or to form mental be admitted to show intent, deliberation, to, aforethought, with knowledge, premeditation, or malice purpose, disease, defect, mental mental mental or the accused committed the act. Evidence of which actually solely or not the accused formed disorder admissible on the issue whether is deliberated, intent, aforethought, when a or harbored malice required specific premeditated, charged. specific intent crime is “(b) capacity, of diminished public policy there shall be no defense As a matter juvenile adjudication impulse in a criminal action or responsibility, diminished or irresistible hearing. or “(c) insanity hearing pursuant an to Section 1026 applicable section shall not be This 1429.5. discretion, “(d) pursuant to the Evidence Nothing shall limit a court’s this section [in] Code, the accused had a mental psychological evidence on whether psychiatric to exclude or defect, disease, alleged time of the offense.” or mental disorder at the mental action, testifying about a any expert guilt phase of a criminal 22Section 29: “In illness, disorder, testify as to whether or mental defect shall defendant’s mental mental to, states, include, not limited which but are required did not have the mental defendant or intent, charged. aforethought, question as to knowledge, malice crimes purpose, be decided required mental states shall defendant had or did not have whether the trier of fact.”
583 illness can lead to behavior is relevant to the existence vel non of impulsive the mental states of and deliberation of whether the premeditation regardless believed harbored those mental states at the time of expert appellant actually the killing. however,
We claim that reject, exclusion of appellant’s expert on the ultimate of fact testimony as to whether did form question those mental states denied him the a defense and right present thereby Fifth, Sixth, him of under the and Fourteenth Amend- deprived rights Eighth ments to the (See, United States Constitution. All is to the authority contrary. v. e.g., People (1996) 294]; Nunn 50 1357 Cal.App.4th Cal.Rptr.2d [58 People (1987) 819]; v. Young 189 Cal.App.3d 905 Cal.Rptr. [234 People (1986) 23]; McCowan 182 12-15 Cal.App.3d Cal.Rptr. [227 v. Whitler People 610].) Cal.App.3d Sections Cal.Rptr. 29 do not aas defense the absence preclude offering of mental state that is an element aof offense or charged evidence in presenting support that defense. They preclude only that the expert opinion element was not present. we
Although that the court erred agree ruling could not experts unless testify believed defendant did and deliberate the premeditate murders, that error is not a basis for reversal of the judgment. record does not confirm appellant’s claim that his failure to implied offer expert testimony mental regarding illness or defect was attributable to the trial court’s restriction of expert At the testimony. hearing, defense counsel conceded that section 29 precludes on whether a defendant expert opinion had the to entertain or capacity had a actually mental state when particular the crime was committed and submitted the matter on the issue of whether could be hypothetical asked of the questions The court experts. ruled that on the expert ultimate issue could not opinion be introduced by means of asking such expert hypothetical as what a question person who had a disorder or bipolar could or could paranoid schizophrenic not do. The could not tie the expert disease to conduct in that manner. That discussion and a discussion of what evidence the subsequent would be prosecution offer to defense permitted evidence of impeach mental illness assumed that the defense would be clearly offering psychiatric testimony.
Thus, was free to offer evidence that he suffered from a mental disease or defect as well as evidence about that disease or defect. Had the evidence he introduced at the about his mental sanity illness offered a phase basis from which the could infer that he did not premeditate murders, deliberate the that evidence could have been introduced at the guilt *49 584 at the guilt phase to offer such evidence Inasmuch as failed
phase. due to the court’s ruling, that this failure was does not reflect record (1997) Samayoa v. (People or presented. is not preserved the issue properly 400, 2].) 795, assuming P.2d Even 938 15 Cal.4th 837 Cal.Rptr.2d [64 however, was not the error court erred in hypothetical questions, precluding defense-retained, either court-appointed None of the experts, prejudicial. ill, that his suggested was mentally all of testified whom At and deliberate. or would affect ability premeditate illness precluded and their to seize the girls relevant to the plan to the extent that it was least demonstrated extensive premeditation evidence the guilt phase chaperones, that the murders were sufficient evidence There was also and deliberation. and deliberate. premeditated instruction. Presumption-of-sanity
4. instructed that during guilt phase jurors The court prospective at the to be sane be conclusively presumed the defendant was to the trial (see the law states correctly that instruction time of the crime. Although 80, 210, 801 1026; 232 (1990) Cal.Rptr. 52 Cal.3d v. Haskett People [276 § under- error which that this was 323]), prejudicially P.2d contends He of the murders. lack of defense of premeditation mined his guilt phase defendant did not premedi- that if the that the was instructed jury concedes defect, of first degree he was not guilty mental illness or tate because of nonetheless, claims, conclude that murder, would jury but behav- of his odd meant that the evidence instruction presumption-of-sanity defendant who believes considered. A could not be ior to the killings prior it. v. (People Rodrigues must clarification request that an instruction requires 235, 1].) 1060, P.2d 885 1140 Cal.Rptr.2d 8 Cal.4th [36 modification. nor sought to the instruction neither objected case. As here in any suffered no prejudice We are satisfied 375, observes, (1971) 6 Cal.3d v. Burton People we noted defendant could there23 that the instruction given P.2d Cal.Rptr. 793] at the guilt illness was offered of mental when evidence mislead jury appel- from that of which different very The Burton instruction was phase. Moreover, counsel argued and defense the prosecutor lant here. complains closing argu- mental disease during guilt phase or absence of the presence mentally ment, that whether appellant defendant reminding jury with 23“ attending circumstances manifested which an act is done is ‘The intent with done, used, discretion of the act, the sound mind and means it is the manner in which nor lunatics are neither idiots persons are sound mind who committing the act. All person you trial must the issues now at purposes insanity. ... For with [IQ nor affected ” (People . alleged conduct . . time sane at the presume that the defendant added.) Burton, italics p. at fn. supra, 6 Cal.3d ill was for the to decide. The guilt instructions phase given shortly thereafter advised the expressly deliberation premeditation were elements of first murder and that evidence that the degree defendant *50 suffered from a mental illness or defect could be considered in determining if those mental states were present.24
There was no of confusion possibility from the instruction of arising which appellant here. complains 5. Failure to strike or exclude statement Allen alleged reference
Hacker. moved in limine prior statement to prosecutor’s opening exclude mention of his conversation with and Allen David Hacker regarding ties, methods of the use of killing, including described nylon in booklet allegedly the CIA. He published by that the argued statements had been made in motion, before jest many years the murders. The court denied the commenting the use of FLEX-CUFs was a method of unique killing thus the defendant’s of the method knowledge was relevant. The prosecutor then told the that Mr. Hacker jury would tell the that defendant jury was “obsessed” with that means of Neither killing.25 David nor Allen Hacker so testified. Both recalled the incident and confirmed that had read appellant ties, aloud the description with killing but each denied that plastic appellant shown a particular interest in that form of killing.
David Hacker testified that in 1983 read to him and his brother appellant Allen from a booklet about assassinations that described various methods of David killing Hacker recalled that people. told them about two of appellant One, those Head,” methods. a Cool involved “Keep throwing oxygen liquid in a liquid hydrogen face. The other person’s was use of a clear tie “baggie” victim, started, nylon behind the walking the tie getting it pulling tight, walking affect or mood away. Appellant’s when describ- ing, did not type killing differ from his mood when he read about 24The court instructed: “It is for the to determine whether any or not there is evidence that the defendant suffered from a mental disease alleged or defect at the time of the offenses charged in I Counts and II of the information. Should the determine that there is such evidence, evidence or an you inference of such may solely consider such evidence for the purpose of determining actually whether or not the defendant formed the mental states which information, wit, are elements charged of the crimes in Counts I and II of . . murder. . Your conclusions as to whether or not there is evidence that defendant suffered from a may mental disease or determining defect be used in whether or not defendant had the kill, mental states of aforethought malice and an intent to and whether or premeditated not he or deliberated in charged connection with the offenses in Counts I and II of the information.” 25The defense conceded good that the statement prosecutor was made in faith who relying report was on the special agent interview of an FBI who had interviewed both Hacker brothers. There about a Cool Head”
other methods of was killing. laughter “Keep “hilarious, Hacker ridiculous.” David was really paying which ties to how when use of nylon attention appellant laughing described. Allen Hacker testified agreed
During testimony Allen Hacker also methods of and unrealistic. outrageous killing ties interest in nylon testified no expressed particular cross-examination, denied FBI telling contacts. Allen Hacker On subsequent Cookbook and McKevitt that often read Anarchist Agent women. seemed interested particularly killing *51 the a defense motion to strike the Allen testimony After court denied cross-examination, a Agent on and over defense objection, Hacker gave McKevitt, Hacker called the testified that Allen by on rebuttal People, to her that seemed interested in various methods stated especially court denied a defense women.26 The also killing people, particularly the to strike that that was im- testimony, ruling testimony proper motion peachment. the court the hearing
Before McKevitt’s held testimony, admitting Birtwell, the investigator that Daniel chief admissibility testimony. Office, testified that he both Attorney’s spoke El Dorado District County and Allen In November or December he telephoned David Hacker. course of the Hacker out how contact Allen. In the David conversation, to find in of the covered David topics Birtwell some brought up Hacker not state statement to David did anything Hacker’s McKevitt. Agent that from the FBI report. departed on January interview Allen Hacker San Jose
Birtwell’s personal in a Hacker told him that he and were Las Allen taped. methods of killing. store where saw the book regarding Vegas gun did not He use referred to one of the methods as using “ziplock.” Hacker the term FLEX-CUF. It would be admitted. was
The court ruled that McKevitt’s testimony that she had not demonstrated voir dire hearing relevant to call that the defense would not be The court also ruled permitted liar. on a defense entire interview of Birtwell or to introduce the Birtwell taped consistent to Birtwell prior that Allen Hacker’s statements theory that, having objection was failed elicit theory underlying the motion to strike and 26The nylon the use of ties to was obsessed with testimony from either of the Hackers kill, up order to Agent if FBI that in set Allen Hacker he told McKevitt prosecutor asked making testimony if Allen Hacker denied such to be McKevitt’s impeached man” a “straw a statement. to reha- statements that were admissible under Evidence Code section 791 bilitate Allen Hacker. The defense was unable to identify any part tape interest in was addressed. The killing on which subject McKevitt and there statement was not made to Hacker’s statement to prior fabrication was no of recent Hacker would justify implication admission of the of the Birtwell interview. tape now claims that to hear the allowing
Appellant prosecution’s statement, claim in his that a Mr. Hacker would opening testify appel- women, lant was interested in various methods of rendered the trial killing unfair. fundamentally Since of David Hacker did not testimony support claim, assume Allen Hacker was prosecutor’s jury might to whom the referred. therefore called Allen person prosecutor Hacker, it clear to the making that the reason Allen Hacker was being called false in the dispel given by impression prosecutor so, statement. Had he not been opening forced to do McKevitt’s rebuttal would not come testimony have in. argument of his claim that the trial was rendered
Appellant’s support unfair as a result fundamentally of this is that it led to the erroneous simply *52 admission of McKevitt’s testimony. McKevitt’s he was testimony, argues, that did not contradict hearsay directly Allen Hacker.
We first the claim reject in misconduct prosecutor engaged in his statement opening by characterizing interest using tie as a plastic method of as killing obsessive. in the record Nothing dispels the inference that the that his witness would prosecutor anticipated testify interest in that appellant expressed His statement subject. opening overstated the simply extent of that interest described by subsequent trial, It was not a statement testimony. that denied a fair diverted role, irrational, from its or invited an proper subjective response. 1, 495, (People (1992) v. Visciotti 2 Cal.4th 83 P.2d 825 Cal.Rptr.2d [5 388].)
We also reject argument failure to strike that assertion led to a unfair trial and the fundamentally erroneous admission of evidence. We cannot say admission of McKevitt’s to Allen testimony impeach Hacker was such an arbitrary, or absurd exercise of capricious, patently discretion that it constituted an abuse of the discretion vested in trial court to admit evidence. A trial court’s exercise of discretion impeachment admitting evidence is reviewable for abuse. v. excluding (People 155, 385, (1996) 14 Cal.4th 201 365].) P.2d Cal.Rptr.2d 926 [58 Alvarez Abuse be found if the trial court exercised may its discretion in an arbitrary,
588 manner, ensuing judgment but absurd reversal or patently capricious, in a manifest miscarriage has resulted if the error is appropriate 413, 1, (1999) Cal.Rptr.2d 20 Cal.4th 9-10 (People Rodriguez [82 justice. 279, 304 618]; Cal.Rptr.2d 17 Cal.4th v. Jones People [70 971 P.2d 793, 890].) P.2d testimony the admission of McKevitt’s to assume that
Even were we discretion, harmless. The evidence the error was an abuse of to falsely imprison to out his plan to kill if necessary carry was prepared The uncontradicted evidence overwhelming. girls abuse sexually young both was relevant strangle ties could be used he that plastic that was aware of Martin the ties around the necks he tightened to his intent when time, and, to whether the ties ahead of since he had ordered Walsh of what admissible regardless That evidence was the killings. premeditated made inadmissible It was not its impact. argues prejudicial “ to in Evi- ‘The referred 352. “prejudice” Code section Evidence tends evoke to evidence which uniquely section 352 dence applies .Code and which has very an individual defendant as an emotional bias against is not section “prejudicial” on the issues. In applying little effect ’ (1983) 143 Cal.App.3d v. Yu (People “damaging.” with synonymous 297, 320 (1998) 18 Cal.4th 859].)” [75 v. Bolin (People Cal.Rptr. 374].) P.2d Cal.Rptr.2d thereof, method of with the particular or lack obsession
Regardless resulted McKevitt’s testimony statement nor neither the killing, prosecutor’s in prejudice appellant. material disclose potentially
6. Prosecutorial favorable failure evidence. *53 the admissi- hearing testimony, during rebuttal
Before McKevitt’s that Hawkins testified attorney investigator district testimony, of her bility Hacker with an he served in Las when Vegas Hacker with David spoke of David Hacker’s Hacker a copy He showed David out-of-state subpoena. it, there McKevitt, him asked if were to review asked statement to statement. Hacker inaccuracies, that it was his told Hacker and was did not consider significant. Hawkins inaccuracies that out some pointed at a later time. be taken Hacker could they up told Hawkins asserted, admissibility over the during argument counsel Appellant’s night counsel on previous Hacker told that David McKevitt’s testimony, Hacker, after the he, opening prosecutor’s had told prosecutor David that in the FBI to David Hacker attributed of the statements that some statement inaccurate. were report
589
contends that the failure of the
to disclose that
now
Appellant
prosecution
testified,
Hacker
David
told
before McKevitt
McKevitt’s
prosecutor,
of her interview with David Hacker was inaccurate in some
typed report
evidence,
violated the state’s
to disclose all
obligation
including
respects
evidence, that
de-
be favorable
impeachment
reasonably appears
3375,
(United
(1985)
fense.
States v.
First, the record does not claim that Hacker told support appellant’s David investigator Hawkins that he did not tell McKevitt much, obsessed with concedes as killing. Appellant implicitly asserting: that, had, “Because the record is in the conversation undisputed, only the one thing David told that he had not made prosecutor] [the McKevitt, obsession statement attributed to him it is reasonable to about, conclude the latter was one of the Hawkins inaccuracies David told too.”
Moreover, no evidence assertion that “the record supports appellant’s is that” before he testified undisputed David Hacker told the prosecutor per- that he sonally did not make the obsession statement. offers no citation to the record for that and we have found assumption nothing the claim. The basis for this claim is defense support only apparent counsel’s statement that he had during argument with David Hacker after spoken Hacker’s at which time Hacker told him that told testimony Hacker investi- Hawkins that there gator were inaccuracies in McKevitt’s and that he report had told the before he testified that he had not prosecutor immediately told McKevitt was obsessed with different methods of killing people, FLEX-CUFs described in the especially strangulation by using assertion, booklet. The did not prosecutor the truth of this acknowledge assertions, which is double supported only by not evidence. hearsay *54 record, that counsel’s created an Assuming arguendo argument undisputed however, no Evidence is favorable and must impropriety appeared. be disclosed if it will either the defendant or hurt the In help prosecution. a claim made on that the assessing failed to reveal appeal prosecution 590 evidence, if it is favorable is considered material only
material evidence (United that disclosure would have affected result. reasonably probable 3380-3381]; In at 473 at 676 S.Ct. supra, pp. States U.S. Bagley, p. [105 P.2d (1995) Cal.4th Cal.Rptr.2d re Sassounian 527].) did not that testify That test is not met here. David Hacker appellant could His that he had made such statement had such an obsession. denial him. Hacker to Neither David nor Allen not have been used impeach of their statements that was aware disputed accuracy appellant that that of thus fails to establish evidence killing. method Appellant ziplock that was was David Hacker denied McKevitt “obsessed” telling appellant material, was to disclose. obligated evidence that prosecution favorable disclosed,
Moreover, been the statement should have assuming even counsel of to did not harm since defense were aware failure do so appellant, to but no effort re-call David the denial at the time McKevitt testified made the only to McKevitt. Additionally, Hacker use statement impeach denial was refute the assertion in his prosecutor’s opening relevance of the was with testify statement that Mr. Hacker would that obsessed counsel instructed that the of arguments that method of killing. not evidence. Thus, the denial fails to us that evidence of only satisfy other an could have used to than in advantage attempt impeach been told McKevitt insofar as she testified David Hacker her appellant but he aware of with ties for using strangulation, was “obsessed” nylon could have called David Hacker as his witness. the statement and that in failing “fully For we also claim these reasons reject an that Hawkins was claim—by arguing agent prosecu- this present” between Hawkins and David Hacker tion thus whatever transpired ineffective rendered constitutionally attributable to the prosecutor—counsel representation.
7. testimony. Admission Candice Smith tele- that he to admission Smith’s testimony objected
Appellant commercial, Parrott, her, her to the name asked using appear phoned the caller be unable to prove on the would ground prosecution one under to be made objection The court deemed was appellant. ruled that the evidence was more probative Evidence section Code that the circumstantial evidence argues than now prejudicial. caller was not a sufficient foundation admission was the lacked value. evidence and contends the evidence probative
591 the burden of that was establishing appellant The bore prosecution (1975) 44 628 Cal.Rptr. caller. v. Collins (People Cal.App.3d [118 864].) “(a) evidence has the burden The proponent proffered fact, evidence as to the existence preliminary producing that there is evi- evidence is inadmissible unless the court finds proffered fact, a of the existence of the finding preliminary dence sufficient sustain other (4) . . . evidence is of a statement or when: proffered HD conduct of a and the fact is whether person particular person preliminary Code, 403, (Evid. himself.” subd. made the statement or so conducted § had (a)(4).) established that That burden was met. People an and knew she had a that he daughter; interest Smith expressed table; Modeling at Smith’s that he was familiar with Avalon played Atlanta, claimed and that he to be from calling Georgia, place Agency; “Barrett” firm was located. he told the Barbizon his “Parrott” or agency circumstantial, that evidence was a sufficient basis for Although concluding The court did not its who called Smith. abuse person 1060, 1167.) discretion in it. v. Cal.4th Rodrigues, admitting (People supra, on the foundation Assuming appellant’s argument objection claim, sufficient to raise the latter it merit. lacks Smith’s testimony relevant to the in which as he activity engaged sought preplanning to lure women and to his trailer. young girls
8. Instructional error.
a. Murder instructions. murder, The trial court instructed the first second degree on jury degree murder, and for an The defense withdrew voluntary manslaughter. request instruction. now contends that involuntary manslaughter Appellant the trial court erred in on second murder instructing degree by describing intentional but second murder. degree argues unpremeditated instructed, that the trial court also should have sua on an implied sponte, malice offense of first of second murder as lesser included theory degree murder, since the evidence would have conclusion degree supported that, the murders were not intentional. He asserts had the been in- malice, murder structed on verdicts of second have implied degree might had no choice but to been returned. Under instructions given, of an intentional convict killing acquit. “instruct, A court must sua
We that the trial court erred. agree all a lesser included offense which find substantial theories of sponte, Breverman Cal.4th in the evidence.” (People support *56 592 870, 1094].) contends P.2d 960 Cal.Rptr.2d
[77 committed with that the murders were not evidence an inference permitted in a when victims put up but were committed panic premeditation Murder defined as “the unlaw- and made noise. resistance unanticipated or the unlawful killing ful of a human with malice being aforethought killing commit or which occurs commission during attempt of a human being that The instructed to human life.” court a felony inherently dangerous delibera- for first murder were degree premeditation, mental states necessary tion, second murder “the neces- and that in aforethought, degree and malice In further second defining degree mental state is malice aforethought.” sary murder, however, “Murder of the second is degree the court instructed only: when aforethought of a human with malice being also the unlawful killing kill a human but being an intention unlawfully there is manifested The to establish deliberation premeditation.” evidence is insufficient included uninten- that second murder degree court did not instruct jury malice, and did not define malice. tional with killing implied could have at trial a instructed jury Based on the evidence properly acted murder verdicts if the found jury returned second degree the victims’ the FLEX-CUFs to overcome tight only in a panic pulled intend to kill he did this the noise. That he did not when resistance and stop could found that from which the have evidence supported neither Since cut the tie on Martin’s neck before arrived. police someone so, inferred that he cut the tie assist did could have girls Martin before she died. instructions on lesser to this claim of error that respond People no that the offense are not if there is evidence
included offenses required 920, (1995) 10 Cal.4th v. Hawkins charged. (People was less than 636, (1982) 574]; P.2d v. Wickersham People 897 Cal.Rptr.2d 953-954 [42 436, 307, 311].) P.2d argue 650 They 32 Cal.3d 323-324 Cal.Rptr. [185 of second no to instruct on any theory that basis that there was obligation the evidence than intentional because killing murder other degree resisted demonstrates the victims the FLEX-CUFs when tightened that serious knowledge actual or acted with presumptive (1994) 7 Cal.4th v. Colantuono to occur. likely (People bodily injury 908, 704]; (1992) v. Nieto People 865 P.2d 219 Cal.Rptr.2d Benitez [26 969].) That mental state 840 P.2d 111 Cal.Rptr.2d Cal.4th malice, however, inference and does support an of implied permits theory murder on degree that no instruction on second conclusion malice was necessary. implied extends general principles court’s to instruct sua duty sponte necessary the evidence to the issues raised
of law relevant Malice, element of the case. an of second jury’s understanding kill, murder, intends to be as when defendant degree may express, Malice be from conduct that reflects an intent to do an implied. may implied 188; (§ act that is to human life. v. Swain dangerous People *57 593, 390, 994].) Cal.4th P.2d There 602-603 909 Cal.Rptr.2d [49 inferred evidence here from the could have was which jury acted without intent to kill even his conduct risk of high though posed death, but the instructions defined the malice given theory only express second murder.27 degree satisfied, however,
We are that the omission of instructions on complete the malice form of second murder was harmless error. There implied degree Const., VI, (Cal. is no that the error affected the verdict. art. probability 13; Breverman, 165; v. People 19 Cal.4th at supra, People Watson p. § 818, (1956) Cal.2d 243].) 46 836 P.2d The evidence of intent to kill [299 and, instructions, under the found overwhelming properly given jury intentional, that the killings were and deliberate. premeditated, (People v. 852, (1989) Jackson 211]; 49 Cal.3d 783 P.2d Cal.Rptr. [264 v. Sedeno People 10 Cal.3d 518 P.2d Cal.Rptr. not, 913].) The jury forced the instructions appellant argues, given into a verdict of first returning murder even if it did not believe the degree were intentional and killings The court made it clear that premeditated. intent and malice were not synonymous, when it advised the that mental jury illness could be considered in if the defendant determining “had the mental context, states of malice and an intent to kill.” Read in aforethought it seems clear that the court intended and the would have understood that the jury court was not second limiting murder to intentional but degree killings, intentional, the if it concluded admonishing jury even were killings second murder if not degree deliberate. premeditated instruction of which now was followed complains immediately by another reasonable doubt instruction the defendant directing jury give the benefit of doubt as to whether the murder was first or second degree.
The court also instructed that if the evidence as to mental any specific state was reasonable susceptible two should interpretations, jury to the absence of that mental state and accept interpretation pointed defect, that if the concluded there was a mental jury evidence of disease or that evidence could be considered in if had determining actually 27Contrary suggestion, cut evidence did not establish that the tie was police police before arrived or before Martin died. The opened evidence was alive, bags in which the bodies were found to ascertain if the victims were and that the tie on already Martin’s neck body. had been cut at the time the evidence technician later viewed permitted police bag The evidence an opened inference who cut the tie. kill, intent to aforethought, premeditation, of malice
the mental states deliberation.
b. False statements. it No. that if in the of CALJIC 2.03 language the The court instructed deliberately made false or willfully this trial the defendant found “that before he is now being which concerning charges upon statements misleading tried, tending as a circumstance prove consider such statements you may of itself to guilt. it is not sufficient prove the consciousness of but guilt, are if any, circumstance and its significance, to be to such weight given this instruction contends that determination.” Appellant matters for your when, statement more than one false to infer that he made permitted *58 fact, was the girls he had molested the two sexually his denial that that the instruction made He also complains such statement he pretrial. the murders contested issue in the case—whether to the only relevant and deliberate. were premeditated observe, about made statements several pretrial
As the People conversation during telephone he was charged, the offenses with which arrested, custodial and during he was being the FBI while agent, with for that his could have concluded explanation well jury interrogation. needed claim that he was “sick” and hospitalization the crimes and his this would jury parse event any false. We think it highly unlikely in the and find significance in the manner suggested instruction “statements,” an the instruction as permitting or understand use of the plural reflected con- of two victims of sexual molestation inference that denial credit We jurors of murder of two other victims. of guilt sciousness (1998) 18 (see Venegas and common sense v. People intelligence with 262, do hot assume that 47, 525]) P.2d 954 Cal.4th 80 Cal.Rptr.2d [74 a court’s instructions. with abandon them when presented these virtues will 92, 142 913 (1996) 13 Cal.4th (See Cal.Rptr.2d also v. Arias People [51 con- as meaning understand instruction would jury P.2d 980] [reasonable offense]; People element of not of every sciousness of some wrongdoing, 1224].) P.2d Cal.4th 33-34 Cal.Rptr.2d Cain circumstances instruction. c. Special special- true the multiple-murder that to find The court instructed has in this case “That the Defendant it must find circumstances allegation or second murder in first one offense of of more than been convicted that at to instruct the court erred in failing contends that degree.” Appellant that the defendant murder and had to be first degree of the murders least one to kill each victim.28 intent had specific to include those error in failing claim is that any short answer to this counts of of two had convicted harmless. The
elements was intentional, and deliberate on a theory premeditated, first murder degree that, set out in those elements been murder. There is no possibility instruction, been re- would have a different verdict circumstances special Indeed, to argue special defense counsel declined opportunity turned. issue, rather self-evident. We’d matter seems circumstance stating, “[T]he the matter.” submit just Prosecutorial misconduct.
9. is necessary misconduct An to instances objection prosecutorial does not object the claim “A defendant who preserve appeal. statements or argument by seek an admonition to disregard improper could unless the harm caused is deemed to have waived error prosecutor we Because not have been corrected instructions. by appropriate [Citations.] all or arguable do the trial court to and correct recognize possible not expect defendant bears the responsibility misconduct on its own motion [citations] an if he has overstepped to seek admonition believes prosecutor Visciotti, comment, *59 v. (People or argument, bounds proper inquiry.” 353, 79; (1998) 2 at v. Cal.4th Cal.4th see also Ochoa 19 supra, People p. 408, 15 442]; v. Samayoa, supra, 428 966 P.2d People Cal.Rptr.2d [79 1048, 854; Cal.4th 1072 Berryman (1993) Cal.4th at 6 People p. [25 867, 40].) 864 P.2d Cal.Rptr.2d brief, misconduct throughout scatters claims prosecutorial that an asserting
often claim as such and failing simply identify “was or stating prosecutor or statement was argument improper to do of. permitted” thing complained
a.
statement.
Opening
referred to appellant’s diary
In his
statement
opening
prosecutor
found in his
made therein and on
of paper
statements appellant
pieces
(1983)
Superior
b. Guilt phase. We claim that the in misconduct reject appellant’s prosecutor engaged while the incident to re- examining regarding Szeremeta which appellant ferred when he called him had . . . “something going Szeremeta tell like the and confined guy That Philadelphia.” person kidnapped retarded basement. Before defense girls Szeremeta was questioned, counsel objected testimony might go beyond girls. kidnapping limited, The court the evidence should be as did the agreed prosecutor. however, and had to be Szeremeta did not confine his answers as anticipated, not to about certain other discussed in the cautioned things telephone speak or “no” conversation had to be admonished give “yes” replies. as misconduct the questions, Appellant assigns phrasing prosecutor’s con- on the that the admonitions witness claiming theory prejudice from the jury. withheld veyed something being impression had been We neither misconduct—the witness- prepared, perceive answers were rambling problem—nor preju- questions proper, *61 to that it about matters as dice. The was instructed should speculate sustained, and the matter was too which had been objections Philadelphia rise to event. have tangential given speculation c. Closing argument.
(1) Writings. of his contends that the based prosecutor improperly part Appellant that other writings unfounded closing argument speculation to take the and commit the girls reflected scheme preplanning on the murders. Those consisted of various words handwritten writings one to reverse of baccarat cards. The words on first which game referred or “won’t eat through??” “Negatio,” were: prosecutor “chop keep,” “burns,” “rot,” and “shallow.” connected some of Arrows “prints,” think about of a body, words. The “When argued: you disposing prosecutor be able to or when think about some will never you way identify police or eat find a do the words ‘won’t body, ‘negative prints,’ ‘chop keep,’ ‘bum,’ ‘rot,’ think about you ‘shallow’ when through,’ ‘deep,’ disposing document, of a do those words on this have body, [exhibit No.] those all ingredients Do meaning? they suggest you, using important sense, common and do those words your your logic, your experience, before the crimes and that Herbert suggest you Coddington gave thought voices, time I at the same as he out the how do writing get scripts rid of the bodies?” minerals, shoes, PO, card, “PABA, On another had written: bag, - - mail,
case, win-eam, car, 5X, church, wo!!, test car.” rig, reg tarp, sup, is the document that has the word and prosecutor argued: ‘tarp,’ “[T]his at the and look at the other words that are on that look word you ‘tarp’ you list, to determine what is the above word meaning, ‘tarp’ you try ‘case.’ And in the context of see the word and word you ‘bag’ putting bodies into a in a case and the word does it have bag meaning ‘tarp,’ that man’s mind ... it in what was meaningful going through you? [I]s committed.” sometime before the crime was made, but after this defense argument,
No objection contemporaneous they counsel in the two exhibits showed when nothing complained made before the killings. were not evidence of plan prepared that it reasonable to infer that court ruled that the could argue prosecutor to the and instructed killings, the words were written prior before the kill- when he said words were written prosecutor misspoke inference, I can be as a fair but The court then stated: “That ings. argued . . . one or the other way don’t the record would indicate as a fact believe when it was written.” it not a fair inference the words were that was argues ruling and erroneous argument
written killings improper prior
599 admo- court’s due The denied him process. which invited pure speculation, misconduct, but made it worse. claims, nition, to cure the not failed possessed a conclusion The evidence supported We disagree. that he had murders, to suggest there being nothing the cards to the prior the after girls from the mobilehome his brief absence a casino during visited notations, the that he made or more likely there. It was as had been confined crimes, were before they unrelated to the included words apparently which was reasonable. correct. The inference The trial court was committed. alone, be based on suspicion . . not ‘may reasonable inference . “A surmise, or guess conjecture, speculation, supposition, or on imagination, from evidence drawn fact must be an inference HQ... A finding work. ” without evidence.’ as to than ... a mere probabilities rather speculation the Morris, 21.) Defendant’s possession 46 Cal.3d (People supra, them, in which cards, they and the circumstances the notations on baccarat infer that the reasonable to from which it was found were all evidence to the murders. notations were made prior in evidence.
(2) to not Reference fact closing referred in rebuttal that the also complains prosecutor a forensic pathologist, the autopsy surgeon, argument testimony by had that the the argued had not been before given jury. prosecutor have been necks could not postmortem on the murder victims’ wounds caused the but were the scissors used to remove ligatures, caused injuries by the He ligatures. tried to remove of the women as they fingernails is that it of the pathologist then asked the to recall jury testimony after and those caused caused before between wounds distinguish possible had testified stated that witness death. After so the doing prosecutor and were caused by fingernails in his the neck wounds were opinion doctor had not Defense counsel objected consistent with scissors. not caused scissors. that the marks were testified that testimony could recall whether nor the Neither court prosecutor admonish the jury the court did not before the jury had been given prosecutor or otherwise correct prosecutor. disregard argument that if conference after bench immediately did remind said, or not or whether had been said concern whether something testimony ask to have the expert had a right counsel was right, reread. not the is misconduct crucial to a claim of prosecutorial
“What is defendant.” injury but potential faith vel non of prosecutor, good (P Cal.Rptr. 52 Cal.3d v. Benson eople *63 330].) P.2d It is misconduct for a to the evidence prosecutor go beyond (Id. before the 794.) at fails argument. to us p. Appellant persuade that he suffered from the statement or the court’s failure to correct prejudice it. He the that defense was that the argues theory wounds were caused by scissors,29 and claims that the evidence that since the supported theory victims could not have caused the scratches while their arms were bound behind their backs. Alecia and Monica had testified that the women were bound before the ligatures were around their necks. asserts placed Appellant that the victims’ hands were still tied behind their back the when bodies were discovered. however, fails to that
Appellant acknowledge, neither victim was still bound with the FLEX-CUFs the described when found. Each by girls cord, front, tied with Walsh’s hands were tied in and her index rope right had been tom off fingernail Both victims suffered more to recently. injury neck, which, the left side of the could have been pathologist explained, caused the victims their to hands to release the using rights try ligatures and breathe. each case the left side was the area which to corresponded “[I]in the scratches from and also the trauma fingernails to the neck in a struggle Moreover, free.” get ligature to reach a conclusion that defendant might died, have cut the FLEX-CUF before Martin one would that have assume the remnant remained in place throughout process tmssing body it in the in which it was placing plastic bag discovered with severed Thus, FLEX-CUF still in are not we suffered place. persuaded aas result of the erroneous any prejudice statement. prosecutor’s d. to vaginal injuries. Reference testified,
Before defense counsel asked the court to ban pathologist about trauma to the area of the murder prosecutorial inquiry vaginal victims’ bodies, that the use the explaining evidence to prosecutor might suggest had assaulted the victims. The court refused to exclude sexually bodies, evidence of trauma to the but stated that reference to assault of discussion, however, a sexual nature would be After further prohibited. heard, court be after which the court be in proposed testimony would a better to determine whether or not reasonable position could infer people that there were sexual overtones. testified that Martin had a recent wound in the pathologist vaginal
area, skin “a but definite tear of the of the . . . mucosa outside very tiny just and it had a little bit of Asked hymeneal ring, very hemorrhage.” theory 29We infer that this cut attempted off the FLEX-CUFs strangling. theory. supported when realized that the women were No other evidence struck blunt being object, consistent with injury whether could cause that type blunt force “I think a replied: straddling-type witnesses area, external vaginal had a bruise across Walsh injury.” basic the same ring, place. hymeneal that at of the trial the prosecutor now each stage complains mur- found on the *64 unduly vaginal injuries
mischaracterized and emphasized victims, sexually that the women had been der thereby suggesting references, of court’s order he These violated argues, spirit assaulted. or suggestion that the not make any inflammatory speculative prosecutor that occurred. He court’s subsequent innuendo such assaults overlooks of, to, those on the use or reference that decision ruling appropriate Thus, await of the actual the statements testimony. would injuries receipt earlier ruling. refers were not violation of the tentative which appellant The as by appellant improper statement identified guilt phase as injuries was reference both prosecutor’s closing argument tears” and on those when focussing arguing “vaginal injuries pattern of suffered the victims was not accidental. No injuries objection however, that made to this had testified argument, surgeon the autopsy on the two murder victims was similar injuries remarkably pattern the odds that In the accidentally very, this was random were slim. very hundred or even he had examined in thousands beatings postmortem situations, similar” The were much more random. injuries “incredibly distribution of on these two could not be coincidental. injuries bodies was, therefore, argument based on admitted evidence. prosecutor’s properly there it was If on the warranted vaginal emphasis injuries, unusual coincidence blunt force to this of both bodies. injuries part
10. Cumulative prejudice. waived, concluded that claims were Having many several appellant’s error, establish caused did not and those did could have possibly claim numer- we that cumulative from reject prejudice prejudice, an ous errors of nature mandate reversal. inflammatory Sanity B. Issues. Phase
1. Irresistible instruction. impulse knows “If and understands The court instructed the jury: person or that it then it is not a defense nature or of his act quality wrong, he committed the act which he with is under an uncontrollable or charged irresistible impulse.”30 error, claims this was that the instruction could arguing cause a defense,
reasonable juror believe that his that he acted on what he God, believed were commands from involved irresistible He had impulse. to an objected irresistible instruction on that basis an earlier impulse during discussion of sanity instructions. court ruled that an instruction on phase irresistible would be impulse that there given, explaining was evidence God, had not always believed were from obeyed signs there was no evidence that he could not refuse.
We do not court erred. While the agree court’s reason for giving it, the instruction does not the instruction support stated the law correctly insofar as irresistible be offered at impulse might defense the sanity *65 and the instruction phase was to the evidence.31 Irresistible responsive does not demonstrate that impulse the defendant is unable to understand the nature and of an act or that he quality does not know that the act is wrong. 28, not, (c) Section subdivision does forbid appellant argues, “any” instruction on irresistible even an instruction that impulse, irresistible im- is not an pulse defense. The insanity instruction limited the purpose which the that psychiatric evidence believed he was under appellant acting used, not, or signs commands from God could be but it did as appellant that argues, suggest defense was an appellant’s insanity irresistible impulse defense.
theWith restoration of the M’Naghten test of irre- legal insanity, sistible no affords the basis impulse longer for an defense. It insanity does that, not follow when evidence that a defendant acted psychiatric suggests under an irresistible the court not instruct the that impulse, may jury irresistible is not The other impulse legal insanity. instructions on insanity and the of counsel made it arguments clear to the jury psychiatric evidence be should considered in whether mental illness deciding resulted in failure to that his acts know were wrong, issue. disputed 30Appellant complain does not stating using of error in the test “or" than rather “and.” prejudicial, The error was not dispute appellant in case. There was no knew the — Walsh, quality killing nature and of act that he was Martin and and knew that the killings jury sanity were unlawful. It was made clear to the phase the issue at the was appellant wrong. whether knew that his acts were evidence, appellant closing 31Here there was during argument, recalled the evidence appellant had “surrendered himself’ signs to what be believed were from God. He also that, God, argued appellant following signs if believed he believed were from guilty by had to find that he insanity. arguments was not reason of These have could been acting understood as assertions that impulse. under an irresistible
603 Moreover, mislead the jury, instruction might if believed that this not, tailored have, instruction could but did clarifying request “A insanity. party to his of theory and its relevance the evidence in law and responsive that an instruction correct not on complain appeal may unless the has party requested too general incomplete to the evidence was (1989) 49 (People Lang or amplifying language.” clarifying appropriate 991, 386, been 627].) The claim has 782 P.2d Cal.Rptr. Cal.3d 1024 [264 546, 132, (1999) Cal.4th (People Cal.Rptr.2d v. Hart waived. 683].)32 P.2d be- that the court erred somewhat inconsistently, also argues, in an defense. irresistible have role may legitimate insanity
cause impulse notes, does, (c) that the ban subdivision as appellant provide Section diminished diminished or irresistible impulse use of capacity, responsibility, (b) insanity that section in an apply contained subdivision does that section held to section 1026 or 1429.5. To extent hearing pursuant (c) subdivision have been read to authorize consideration might trial of not insanity, irresistible at the on a reason impulse guilty plea however, (b), it tanto subdivision section repealed pro impliedly Nothing reinstated the test of the instruction M’Naghten insanity. which would have consideration of evidence irresistible impulse given precluded did not his acts to the extent that the evidence know suggested wrong. *66 attorney-client product 2. Violation and work privileges. trial, of the was examined by
In for the preparation sanity appellant phase Mills, Rosenthal, and defense. seven retained the Drs. Only psychiatrists not names of other were experts Satten were called to the testify. who learned sheets through jail sign-in revealed them prosecutor,33 to elicit and social contacts. In that the would seek anticipation prosecution an that had examined appellant sought evidence those also experts appellant, in limine that reference to those examinations be excluded ruling grounds admission the that had seen and appellant that of evidence other psychiatrists their the and content of interviews would violate work attorney-client prod- seek to might argue uct that acknowledged privileges. prosecutor ones that had before finding the the defense consulted several experts that and seek establish legally would insane testify appellant who instruction, misled the 32Inasmuch we conclude the would have been support incompetent suffered and thus this omission does not an prejudice, no claim. counsel Custer, French, Mates, sanity phase stipulated close of Drs. parties 33At the the jail. Dougherty had visited an individual who took tests could become suffi- psychological repeatedly ciently familiar with them to tailor responses favorably.
The court ruled fact that the that additional existed was psychiatric reports not shielded as work and that cross-examination of product, during testifying those could be asked if experts, experts they were aware that other studies tests had been done. The actual were within the work reports Defense counsel then the court that product privilege. with admission agreed of evidence that other examinations had been made raise an might Evidence Code section 352 and the court ruled problem evidence that eliciting defense had been around” for “shopping more psychiatric experts than and could not be prejudicial probative admitted unless for some legiti- mate other than purpose that additional simply showing psychiatrists examined appellant. Mills, Rosenthal, cross-examination of Drs.
During and Satten the pros- ecutor was over based on the work permitted, objection and attor- product Custer, ney-client to ask whether privileges, were aware that Drs. Mates, and French had evaluated He was also appellant. over permitted, objection, to list the credentials of Dr. Mates.
In closing argument during sanity phase prosecutor emphasized that the defense did who were testify months after experts engaged many crimes were and had committed no knowledge findings defense, psychiatrists, engaged by who had examined earlier closer to the time of events.34 this Appellant claims that violated both the attorney-client and work privileges, constituted comment on the of a product impermissible exercise 34Arguing presentation expert compel jurors evidence did not to leave behind logic assessing persuasive, their common sense and experts prosecu- whether the talking tor said: “I’m fact happened May May about the that this crime back on *67 later, It January, was not until seven months not plea 1987. that the Defendant entered the of months, guilty by insanity. reason of in that And interim of some seven four mental health heard, you professionals, other than the ones that of the Mr. on behalf defense examined Coddington.” surgeon Suggesting proceed considering that a would not without and reports of opinions patient, argued psychiatrists others who had examined the have the same “[Y]ou, obligation yourself going and that must ask is jurors, what here when there have prior knowledge findings been four mental and professionals health we have no of what their were, finally findings and workup knowledge the doctors that did the of have no what their really going . . . And the gut were. bear in mind ... critical is what was on in issue picture mind And the ago. you you’re trying man’s 15 months so when come in and to ftQ figure happened ago, get out to the to important what 15 months is it not results and to talk Coddington people possible go the that saw Mr. as close to the is rather than into crime as to findings a people’s this with reckless abandon as to what those were?”
605 Code, to and due and the (Evid. 913),35 right denied him process privilege § to United States Fifth and Sixth Amendments the counsel the guaranteed by Constitution. im- of this information was that the use agree
We prosecutor’s the attorney-client there no violation of the privilege, While proper. did and of the defense his argument cross-examination experts prosecutor’s and error in the Any work product permitting questions violate privilege. harmless, however. argument disclose, to is “a refuse attorney-client privilege privilege confidential communication be- a
and to another from disclosing, prevent Code, 954.) (Evid. client and That privilege encompasses tween lawyer.” § confidential and communications between a client retained experts 500, Code, 952; (Evid. (1975) defense. v. Lines 13 Cal.3d 509-510 People § 225, been 793].) P.2d Neither evidence Cal.Rptr. appellant [119 nor other than those testified examined who evidence by experts or not of the of the nontesti- were aware aware testifying experts opinions a confidential between defense coun- disclosed communication fying experts Therefore, the decision of any sel or psychiatrist. did the defense to call three of the had examined experts who not constitute exercise of the and comment was attorney-client privilege Code section by Evidence 913. precluded of The work now codified in Code Civil Procedure product privilege, section 2018 and in criminal as civil proceedings (People as well applicable 458, 534, 43, v. Collie 30 Cal.3d 634 P.2d Cal.Rptr. 776]), bars the use statutory A.L.R.4th absolutely discovery procedures conclusions, an obtain that reflects “[a]ny writing attorney’s impressions, Proc., 2018, (Code (c)), or or theories” subd. legal research Civ. opinions, § and bars other of an work unless discovery attorney’s any aspect product, (Id., (b).) denial of would subd. discovery unfairly prejudice party. “(a) or proceeding prior 35Evidence Code section If in on a occasion 913: instant matter, testify any is or was with to disclose privilege respect exercised not to refuse matter, disclosing any presiding another nor counsel prevent or to from neither officer thereon, may presumption privilege, comment shall arise because of the exercise of the no may any credibility fact inference of the witness or the trier of not draw therefrom as to any at proceeding. as to matter issue in the court, “(b) adversely party may at because an request who be affected exercised, has shall may privilege inference be drawn because a been unfavorable and that privilege arises of the exercise presumption instruct no because any credibility of the or as to jury may not draw inference therefrom as to the witness proceeding.” in the matter at issue we light interrelationship between Evidence Code sections In *68 objection attorney-client privilege ground encompassing as one violation deem counsel’s Code of Evidence section 913. 606
This (1) reflects “the of the state to: privilege of policy preserve rights cases for trial attorneys prepare with that of degree privacy necessary them to their encourage cases and to prepare thoroughly investigate case; the favorable but the unfavorable (2) of the and aspects prevent from attorneys undue of their taking advantage adversary’s industry Proc., 2018, (Code efforts.” Civ. (a).) subd. § The prosecutor’s cross-examination and his to the invitation to infer that defendant had been examined other had not who been experts called to testify contravened that Work policy. product encompasses of defendant’s mental investigation state to assess both the favorable and the unfavorable of the case. It also aspects counsel’s encompasses impressions and conclusions regarding witnesses who would be favorable those who Architects, (Nacht would not be so. & Lewis Inc. v. (1996) Court Superior 575].) Cal.App.4th It follows that the Cal.Rptr.2d party’s [54 decision that an who has been consulted should not be called expert to testify is within the privilege. (County Los Angeles Superior Court of 647, 656-658 Cal.App.3d 698].) Cal.Rptr. did not prosecutor seek learn the identities nontestifying obtained,
experts through of how the discovery. Regardless information is however, aif to use information about party permitted inves- pretrial that reveals tigation counsel’s opposing and reasons for thought processes decisions, tactical would be thorough investigation discouraged. By inviting to infer that the other were not called because their testi- experts favorable, would not be mony also took prosecutor advantage defense counsel’s efforts and failed to industry. to that object aspect however, argument, and his to the questions defense did experts who testify elicited only answers that knowledge nontestifying experts’ opinions would not reason, have had on their own For any bearing diagnoses. because defendant’s mental state was thoroughly explored five ex- who did perts those testify, as to the experts disagreed only severity illness, his mental error in the cross-examination permitting was clearly harmless.
3. Prosecutorial misconduct.
a. vaginal injuries. Reference Just did with to the regard reference in the prosecutor’s guilt phase victims, inflicted on the closing argument vaginal injuries murder urges reference to the prosecutor’s sanity phase vaginal injuries as misconduct. This claim is based on the examination of Dr. prosecutor’s *69 was that each victim Mills, asked if he aware who was a defense psychiatrist, tear, had suffered a Walsh although as was described hymeneal had what not injuries that the were counsel objected not a tear. Defense bruising, tear, was a and one outside the hymen, as hymeneal they were ruled The court to create a false impression. was the prosecutor attempting he some- go and directed that too far afield was prosecutor going did so. where else. The prosecutor course, has an whether expert not to ask expert
It is improper, to the to be given be weight matters in evidence that relevant may considered about to statutory inquiry as limitations Except to the opinion. expert’s treatises, extent as be cross-examined to same “an may learned expert and, addition, as . . to . be cross-examined may fully other witness any reasons for his which his or her is based (3) the matter upon opinion Code, (a).) autopsy subd. (Evid. Although or her opinion.” § trauma, not caused blunt force had testified that surgeon injuries assault, did not rule out testimony a sexual his possibility We cannot sexually to the victims’ was motivated. inflicting genitalia injury diagnosis. that this evidence could not be relevant to psychiatric say b. test. M’Naghten misconduct, one of
Without the claim as identifying prosecutorial unlawful blatantly claims that the prosecution pursued appellant as a result which the sanity jury unconstitutional tack during phase, it find not reason guilty by told could not effectively rather than “Judeo- because his of God was insanity conception pantheistic asserts, from Christian.” As consequence, jury precluded insane, delusions. The notwithstanding him his finding legally psychotic claims, and in argument, conduct in witnesses prosecution’s questioning into to section M’Naghten the California test contrary incorporated First, Fifth, (b), and under the religious rights subdivision violated had the believed his and Fourteenth Amendments. He asserts that delusionally at the of the he was defense—that time killings psychotic; kill; kidnap commanded or authorized him delusion God had as a result he believed his conduct was morally justifiable—the lacks not The claim guilty by insanity. would have find him reason merit.
First, witnesses on did asked of object questions now aspect of which he complains cross-examination avoid this threshold require- He cannot prosecutor’s sanity argument. phase as one of misconduct. ment this claim by failing identify prosecutorial The issue has been waived.
Further,
25,
was
in
instructed
accordance
properly
with section
(b),
Skinner,
subdivision
v.
People
supra,
“Mental illness and mental abnormality, whatever form either may are not the same as appear, necessarily legal A be insanity. person may or ill mentally mentally abnormal and not be insane. yet legally when, “A is insane person legally reason of mental disease or mental defect he was of or incapable knowing nature understanding quality of his act or of incapable from at distinguishing right wrong the time of the commission of the offense. The word as used in is ‘wrong’ this instruction not limited to but legal wrong, moral properly encompasses as well. wrong Thus, the defendant who is of distinguishing what incapable is morally right insane, from what is is he morally wrong even understand though may is act unlawful.” did not
Appellant object this statement of the when law the sanity phase instructions were discussed. The admonished that the properly are arguments of counsel not evidence. 25, 1026; bore (§§ the burden of his v. proving insanity. People 56, (1991) 288, 54
Tilbury Cal.3d 63 1318].) 813 P.2d He Cal.Rptr. [284 to do so given The opportunity argue and both theory. experts sides that agreed knew nature and of his acts and knew quality were they unlawful. only question whether he also knew wrong. morally 25, is, (b) morality section subdivision contemplated by as the here, not argued prosecutor individual’s belief in what conduct is simply or is not itWhile need not good. reflect of a principles recognized religion and does not demand belief in a or God other it does supreme being, held require sincerely belief or grounded generally ethical accepted moral derived from an external principles source. in the obligation “[M]oral context of the defense means insanity generally moral standards accepted and not those (1988) standards to the accused.” v. peculiar Stress 205 (People 1259, 913].) Cal.App.3d 1274 Cal.Rptr. [252 beliefs are often the
Religious source of moral generally stan- accepted dards, but a defendant need not show that or she believed Judeo- Christian standards criminal conduct. An morality justified insane delusion that the conduct was correct under some other set of morally moral would this precepts test of satisfy prong M’Naghten legal insanity.
609 that his acts are However, and believes fact a defendant claims “[t]he does compel to his own distorted standards according justifiable 720, (1960) Cal.2d (People Rittger finding insanity.” of legal this 645].) in Rittger, As we explained aspect 355 P.2d Cal.Rptr. test, rule Case M’Naghten’s from the adapted M’Naghten to formulate stan- is society is “if necessary organized Eng.Rep. to its deemed essential preservation dards of conduct and responsibility tolerances, welfare, those standards.” with and to within require compliance, *71 734.) at 54 Cal.2d (People Rittger, supra, p. con- that had a argument conceded in appellant
Defense counsel differ, had established and religion of that and had might rejected God cept called, if the that whatever it was jury his own moral but system, emphasized evidence, be- was what he following believed the it established appellant If believed that lieved were commands from that source. the jury appellant God, or from a signs higher what he believed to be from following was nature, it, “God, that call and therefore did not believe you whatever entity, of the had to him not reason guilty by it was find morally wrong,” jury insanity. with asked or inconsistent argued improper, was
Nothing prosecutor (b), section “wrong” this of the of in subdivision understanding meaning due or If or denied constitutional religious rights. appellant process of counsel’s overly received benefit his anything, expansive appellant test, of found in the which understanding concept morality M’Naghten external, standards of did not limit that generally accepted concept morality. of this are the regard
The bases for claim appellant’s impropriety wit- expert and argument prosecutor put prosecutor’s questions insane, legally questions nesses who had testified that the defendant was of based on that had the Judeo-Christian rejected concept evidence appellant God, his own had examined and evolved religions, ultimately concept other God a force the universe. running Nothing prosecutor’s as through or his from argument finding appel- questions subsequent precluded or under the test he now lant insane under the court’s instruction legally his which to measure the sole means argues objective was appropriate an on the defense was attack argument psychiatric sanity.36 prosecutor’s insane, their reliance on and conclusion that appellant legally experts’ signals getting 36Appellant following appellant as 1. Did believe he was posits the test: so, superior force appellant 2. If believe the superior supernatural some or force? did from so, authorizing appellant did believe it was kidnap? him to kill and If was a command or was so, against law? did killing and If right obey despite kidnapping the fact that statements made them appellant, whom characterized as prosecutor a cheat a liar. This was not an not assertion law did permit that, finding legal because a insanity theory universal force actions, condoned his did not know his conduct was appellant morally wrong. with prosecutor charged the word “God” to appellant manipulating
deceive into he ill. He believing that moral mentally recognized differ, but systems an may argued external source and was morality not an individual decision as to what is or is not He simply moral. argued ethics, that a moral has or system to an principles opposed individual’s bad, decision that further something good argued did what he wanted and then God in applied word his own moral system that his conduct was all He say right. accused creating own sense ethics and values religion, argued religion was external to him. It something reflected his own simply defense, views. The had the burden of argued, showing *72 own, a had moral “really a moral other than his other system, system than the taking word God and on his simply it own lust and desires.” impressing The did not that if prosecutor that argue believed God or appellant actually some other external force condoned or commanded his actions was not insane. legally
Defense counsel’s argument reflected that closing understanding prosecutor’s argument.
For these reasons we reject also claim that the failure of defense counsel to the to either on cross-examination or object put questions instructions, the to additional prosecutor’s closing argument, or to request refused,37 offer for an authority instruction that was but offered constituted ineffective representation. people, that other believe if knew what he knew and believed what believed so, killings
likewise have kidnappings justifiable? would believed the to be If were the thought product latter a processes conclusions of mental disease or defect? 37Defense counsel asked court person may that the instruct: “The fact that a not ascribe to not, itself, any recognized the teaching traditionally religious groups of does in and of legitimate person rejected (socially establish that the has acceptable) concepts morality. of recognizes people ranging The law that concepts concerning have wide the of God existence concerning or other concepts supernatural phenomena the existence of God or from other system may person’s which a The concept may moral be derived. fact that a God not of not, itself, concepts deity preclude coincide with traditional of that in and does person system morality that a in a supernatural determination believes derived from phenomena.” Appellant sending through no evidence his belief messages offered that God was traffic lights approving any way system morality and numbers plans his related in to a about examination.
c. Inquiry psychiatric witness, Satten, the pros- Dr. a defense cross-examination During see and Kaldor to had asked Drs. Bittle ecutor asked the witness who know “it was he did not to the which witness appellant, replied the attorney.” prosecutor the Court or yourself, prosecuting either had right the doctor if he by asking thought prosecutor up followed examined; this was that he believed have a defendant doctor responded if the had then asked witness circumstances. The prosecutor some possible counsel on relevancy grounds, cases Defense objected proposition. had since witness but the court ruled question appropriate said that this was The witness been as a forensic offered expert psychiatry. then of the defense. When prosecutor with consent possible counsel) it could have taken (defense agreed “these had asked if gentlemen” and the that he court thought appointed witness place, responded doctors, line of inquiry counsel again objected inappropriate defense that the had been earlier on the witness ground renewed his objection asked for a legal opinion. the examination court the answer that disregard ordered doubt that The judge expressed
could take if defense counsel place agreed. have a defendant that the not may know allowing prosecutor examined if cases and ruled that there were asking inappropriate, fact,” asked for “historical legal opinion. comment, that the People contends prosecutor’s *73 examined that
had have defendant and the insinuation right no to the consent, the that this had to denied due To extent refused appellant process. misconduct, we agree. is claim that the line of was prosecutor’s questions Drs. Bittle What the witness about who ordered the examinations thought by irrelevant, the understanding and as the witness’s of law. Kaldor was was of As a forensic he dealt expert, His in the field expertise psychiatry. was with that arise in administrative judicial proceed- psychiatric questions that him an who offer an on opinion but did not as ings, qualify expert may right did state that he had no to the While the prosecutor directly law. elicited and the answers he have the examination the performed, questions an that erroneous thereby conveyed impression conveyed impression offered, the waives the has been defendant law. When a defense insanity the to the extent to necessary permit Amendment rights Fifth Sixth defendant’s condition. to obtain an examination prosecution but on to comment cooperate, may rights by refusing defendant preserve rejected as had moral Inasmuch he generally accepted principles. derived from ethical or therewith, it was concept system of God and moral associated Judeo-Christian approved his actions. to do than that he believed God appellant incumbent on more claim that refusal is v. McPeters permissible. (People (1992) Cal.4th 146].) 832 P.2d Cal.Rptr.2d Thus, the could have that the defendant an prosecutor requested submit to examination.
To the claim extent that this is a that court erred in irrelevant admitting evidence, agree. we also
We do not that either the agree elicited questions testimony from defense, Dr. Satten caused any to the Even prejudice however. assuming believed that the did not jury prosecution have the seek an exami- right defendant, nation of there is no basis that they believed assuming additional evidence about mental would condition have been more effective in impeaching defense than was the experts testimony Kaldor, And, Drs. Bittle and who were called witnesses. prosecution if believed that the jury did have such a if prosecution right appellant agreed, examination, but that he had refused to submit to the fact that he had submitted to examination the two the court psychiatrists appointed by would inference that the refusal was dispel any because appellant hide. something jury aware had been examined by the five who testified and had psychiatrists consistent infor- given generally Thus, mation to each. there is no likelihood that the would assume that jury different, feared that one selected elicit prosecution might information. damaging
d. to courtroom demeanor. Reference re-
Appellant complains Dr. Mills prosecutor questioned asserted “ebullience” garding appellant’s during conversations with the wit- ness while the He was not jury present. complains questions were designed that he was an act suggest when the putting invite the present, inference deceitful person. This, claims, constituted comment that his Fifth prosecutorial infringed Amendment not to due right testify, denied process by introducing irrelevant *74 evidence, and violated his Sixth Amendment to confrontation and right cross-examination the by offering observations. prosecutor’s
To the extent that this is a of claim misconduct or of the prosecutorial evidence, erroneous of admission it was waived failure to by appellant’s It The object. lacks merit event. questions were not prosecutor’s comments or instructed evidence. that statements jury counsel are not and that the should assume jurors evidence never an insinu- ation true. It is not to call the suggested by question was improper jury’s
613 147, Cal.3d (1988) v. Heishman 45 197 of a credibility (People [246 witness. to the 673, an invitation 629].) P.2d This was not improper 753 Cal.Rptr. theme of A major to infer conduct from behavior. appellant’s criminal jury and to had ability in the that sanity appellant the prosecution phase to It is not who examined him. improper in fact the experts manipulated that a comment based thereon through to a evidence suggest 1017, 1059 (1993) man.” Cal.4th Stansbury is a “con v. (People defendant 174, 756].) 846 P.2d Cal.Rptr.2d [17 fact, he he was not sure question by saying
In Dr. Mills responded ebullient, to talk in eager as being engaging would characterize appellant absence. the jury’s
e. was a liar. Argument appellant claims if asked the prosecutor improperly experts liar, he acts of that was liar he was referred past argued deception, This, claims, (1) to offer inadmis- and deceiver. an attempt improper on a occasion sible evidence of character conduct prove specific (a), (2) inflammatory violation Evidence Code section subdivision from that he had a character trait argument dishonesty deception by could infer that he was dishonest when examined being which Code, 352.) (3) (Evid. and more than probative. psychiatrists, prejudicial § and, waived these claims Again, failing object again, to do does not of trial counsel. failure so reflect incompetence Objections as a have been reference to would meritless. prosecutor’s on the “liar" was not It was a reasonable inference based evidence. improper. Cal.4th 862-863 (People Earp Cal.Rptr.2d 15].) P.2d during
We into reject theory honesty appellant’s inquiry appellant’s because neither court-ap- examinations was psychiatric improper had lied to them. nor defense believed experts experts pointed Code, When, here, as to a (Evid. 721.) opinions psychiatric experts’ § defendant’s are based in substantial on statements made sanity part legal defendant, into the for the belief that the them basis experts’ inquiry deceitful is honest and their conduct knowledge past defendant was reason, elicited For the same had the prosecutor’s questions permissible. deceitful past evidence that the aware experts conduct, than would not have been more prejudicial evidence probative. *75 true,
It is as appellant argues, that all of the that experts agreed ill. mentally differed They their of the extent of opinion that illness and whether it resulted in at legal the time of the insanity crimes. Nonetheless, the People’s theory was that had lied to all when he claimed experts to have committed the crimes in the belief that God or a higher either power commanded or of his conduct. approved It was not to ask those improper if were experts aware the many instances of evidence, deceitful conduct shown since a failure on their part consider the deceitful conduct past make the might defense experts’ opinions less persuasive. that
f. Implication appellant had interest in torture. Pursuing theory appellant’s behavior was not a of a product conduct, delusional belief that God but approved instead reflected sexual sadism, Rosenthal, the prosecutor asked Dr. a defense whether expert, violence appellant’s indicate might that DSM-III-R diagnosis. When he asked whether witness torture, knew if had an interest defense counsel objected relevance grounds questions a book approaching on torture that had been found in mobile- home, but had been excluded when offered as evidence. The court ruled that could ask prosecutor if the witness was familiar with the book and was aware that appellant it. possessed
The witness testified that he did not recall that and did not think he was aware of that. Defense counsel to a objected if follow-up question, asking the witness would change his if he had diagnosis been aware that. The did not allow the judge question, that had he stating about it thought earlier have, but might since he had ruled that the could not prosecutor pursue if the topic doctor answered “no” to the first question, ended the matter. now that it complains was error to allow questions
which implied had a prosecutor source of information of which the jurors were unaware. The prosecutor thereby injected irrelevant evidence and resurrected the “speculative, propensity-based, inflammatory sug- about gestions” torture he had raised in the guilt phase.
To misconduct, the extent this is a claim of it was prosecutorial waived Moreover, the failure to on this object ground. as we conclude below, were not questions improper. did not err. He did not judge allow other than any question whether
Dr. Rosenthal was aware that a book on torture had been found during *76 Moreover, not the improper. of questions search residence. Evi- cross-examination by the of scope permitted was within inquiry sadist was that a sexual Code section 721. The theory dence conduct, the statements and writings, his not simply speculation. Appellant’s confining in and seizing his interest regarding he made to the psychiatrists the all the Whether to become sex slaves girls supported inquiry. young so, and, on torture if a book was aware that appellant possessed expert a and reaching diagnosis rejecting he took it into account in whether sadism, a v. Osband (People of sexual diagnosis inquiry. proper 640].) 919 P.2d 13 Cal.4th Cal.Rptr.2d 4. Judicial comment. for the cred- contends that the trial vouched judge improperly above, of the As noted the two called
ibility psychiatrists by prosecution. both had been the court. appointed by Mills, the if Dr. a defense asked
While cross-examining expert, prosecutor a the had reached witness was aware that court-appointed psychiatrists those different and then referred to conclusion as appellant’s sanity, as that hired are not “seemingly by prosecution experts impartial people kinds These defense. are that Court retained as impartial people Mills to the that make an Dr. analysis.” objected implication people because he had been retained the defense he was to which by impartial, sir, Dr. and Dr. “But understand Bittle Kaldor prosecutor responded: no have sense other than retained allegiance being parties the court.” After the asked retained prosecutor also why psychiatrists court which had examined their credentials have a different would opinion, defense as objected “allegiance” counsel reference inappropriate and to that the court examined the credentials as inaccurate. assertion said, then “First disagreed. he judge presence jury, all, think I it’s within fair of it. The doctors aspect comment allegiance sale, know know as certainly that he’s not for but as well I you explained this that Dr. that there are certain court wouldn’t Kaldor employ, people counsel, and Dr. Bittle are well to the Court and to through known at various names we arrived Bittle talking process exploring District as was Attorney, Kaldor. You were of that as was the part process, credentials, had them testify experts the Court. I know these I’ve people’s before, is characterization a correct one.” and I think prosecutor’s] [the witness, the prosecutor Kaldor later called as prosecution
When Dr. the case Kaldor became involved in when elicited Dr. testimony received call from the judge if he would be a court- telephone asking *77 doctor. Defense counsel the appointed again that was objected testimony as it that Kaldor the misleading suggested Dr. was the choice of personal The a declined defense that he a judge. judge “disclaimer” that request give however, Dr. Kaldor was not his clioice. He did personal advise the that jury, while the did not maintain a list of court had county the in mind experts, who were available in psychiatrists and whom had confidence “and in they this I think Dr. Kaldor’s name was one five or ex- process of six we [Tjhere . . . were that five or six we to be plored. thought appropriate, Dr. Kaldor and Dr. Bittle were that two names both sides would be stipulated acceptable.”
There is a reasonable likelihood a infer juror from those might the court had vouched the exchanges for witness’s credibility thereby the to invited credence give to Dr. Kaldor’s jury special testimony. The fact that an has witness been the court expert by may appointed Code, be (Evid. 722), revealed to the but which jury vouching, § constitutes an to vouch a for witness’s is attempt personally credibility, improper. Stansbury, 4 at (People supra, 1059.) Cal.4th p. have intended to Dr. judge Kaldor was may explain ap- court, the of the regular to that the court
pointed pursuant practice knows the qualifications of considered experts to that appointment pursuant prac- tice, and that sides both to this agreed appointment. That would have been since the understands and that the an proper jury who retains expects party is familiar with the of the expert (See credentials v. Fauber People expert. 792, 24, (1992) 2 822 249].) Cal.4th P.2d Like a Cal.Rptr.2d judicial (see 450, of (1994) v. Freeman grant immunity People 8 Cal.4th 489 [34 P.2d 888]), an Cal.Rptr.2d 31 A.L.R.Sth court of appointment expert does not itself constitute be vouching would not seen as such by remarks, however, In the in jury. context which the court made these the have understood the to the jury may mean that explanation judge personally vouched for the of credibility Dr. Kaldor Dr. Bittle.
Nonetheless, error in this was not regard prejudicial. jurors instructed that were the sole of a believability witness and they judges the to be of in weight testimony witnesses. the court’s given Nothing of explanation two appointment psychiatrists court-appointed and, implied credibility defendant’s as noted experts question, before, all of the ill. their experts agreed mentally Only assessment of that illness his awareness that his conduct impact differed. morally wrong
To the extent that be to Dr. appellant may arguing questions put Mills his retention the defense by were im- prosecutor regarding by claim lacks merit. As we observed in v. Johnston People proper, in the course of direct 921], P.2d it is inevitable that 48 Cal.2d 87 [307 if witness has been learn an expert or cross-examination will bias be relevant to and may That information is possible retained party. expert. considered jury weighing testimony violent act. prior 5. Reference he hear” that had commit- contends that “permitting denied due His reference is questions put
ted violent act prior process. about and what had asked whether asking psychiatrists *78 the Assertedly, had admitted to them acts of violence. prior inquiry and to diagnosis to the considered in their reaching relevant matters experts about as he had not told one the an incident appellant’s credibility, experts self-defense, which, near Puerto Rico in in claimed was what appellant the claim had killed a man. As a claim of misconduct appellant prosecutorial lacks merit. that had that about the concedes the court ruled questions
Puerto Rico itself be ánd limited unduly incident would prejudicial of the to had told the examination whether aspect asking expert appellant did the about acts of violence. He also concedes that the court so after prior defense found the ask if unsatisfactory proposal prosecutor simply had failed to state matters of his and whether appellant significant history affected if the the court the witnesses diagnosis, question approved admonished that not refer were should to the Defense prior killing. counsel the out the fact that objected bring would permitting question violence, had been involved in another act of that evidence of such appellant inadmissible, an act would be and would be prejudicial. prosecutor countered that relevant subject whether had into expert inquired of the the court ruled Ultimately, examination. adequacy psychiatric line to test sanity phase inquiry permissible defendant’s legitimacy sanity.38 psychiatrists’ opinions Moreover, examined, counsel before the the court permitted were experts out of the of the ensure that Dr. Mills question presence In that examination evidence would be relevant and sufficiently probative. confirm, assumed, he did not that he *79 the need for by self-defense. had also told him that he had his put hands around the throats of and girlfriends them. frightened Dr. Rosenthal did not believe that conduct and an interest in torture suggested sexual sadism would be an about, appropriate diagnosis. Dr. Satten did not ask but considered, had acts, violent acts he past understood were linked to gambling would not a have or link to bearing the instant crimes. He Kaldor, learned of the acts from defense counsel. Dr. who had not been told about the violence when he first believed it was inquired, significant that had not appellant interview, told him about the violent act in the first but in the second interview admitted he had not told Dr. Kaldor the whole story and did make some disclosure. Dr. Bittle testified that it was to important him to know whether acts, had a appellant of history in violent participation that, had asked about specifically and considered it appellant significant had not related the same incident to him that he had described to Dr. Kaldor.
If this evidence, is claim that the court erred in the claim also admitting lacks merit. “When an to evidence objection is'raised under Evi- 352, dence Code section the trial court is the weigh evidence’s required confusion, value probative the against dangers prejudice, undue time Unless value, these consumption. dangers ‘substantially outweigh’ probative the 585, must be objection (1983) overruled.” v. (People Cudjo 6 Cal.4th 609 635].) 863 P.2d As is Cal.Rptr.2d the court apparent, gave [25 careful consideration to the of the line potentially prejudicial impact questioning that, as limited under concluded ultimately proposed by prosecution order, value outweighed by court’s impact probative evidence. relevant,
Moreover, the evidence both whether clearly their whether been truthful with examining psychiatrists The within the should be diagnoses accepted jury. questions Evidence section 721. of cross-examination Code scope permitted A court exercises of broad discretion in whether grant assessing trial (People its for value of evidence probative outweighs potential prejudice. above, 1060, 1124.) As we an 8 Cal.4th noted Rodrigues, supra, appellate court not find an of discretion in a on admission or will abuse ruling exclusion of that the court exercised its showing evidence except (Ibid.) an discretion in or absurd manner. arbitrary, patently capricious trial did not abuse here in court its discretion inquiry permitting evidence. v. Barnett 17 Cal.4th admitting (People P.2d 384].) Cal.Rptr.2d Improper impeachment.
6. In another attack on effort defense impeach prosecution’s that the court psychiatrists, contends allowed use of improperly casino records unreliable for impeachment. defense believed his who psychiatrists, appellant’s explanation
conduct, also believed claim to have lost considerable amounts money *80 when, illness, a result of his mental abandoned rational appellant based on mathematical and gambling engaged magical instead probability at the tables. Dr. Mills believed this reflected deteriora- thinking gaming tion mental the of health that had become a time of appellant’s psychosis the crimes. Dr. Rosenthal In sought agreed. response, prosecution had introduce certain casino records to demonstrate that won appellant claimed the time he to have been from God in money during following signs his wagering. Mills,
In a defense relied cross-examination Dr. prosecutor expert, aon a Stateline figure history” “drop appellant’s wagering supplied casino, if the casino estimated that were aware asking experts $656,000 had in the six-month between November appellant wagered period crimes, like a without before and whether sounded May person Mills that he had been of what were Dr. testified they doing. knowledge when Dr. was asked if unaware of that Defendant Rosenthal figure. objected he knew how much the casino estimated in a six-month appellant “dropped” The witness “no” before the period. responded objection was made. that the objection was would not understand the meaning “drop” “lose,” would be misled into it meant whereas the casino thinking figure estimated how much a used into a player buy game (by dropping table) into a box below the each money thus, time he went to a table and gambling sum, unless the lost or all of the for each player part drop table reflect succeeding would the same as a new In fact the money drop.39 did not reflect either much figure how was lost or how much was at risk. put discussion, After a very confusing out of the of the as to what presence jury, had prosecutor demonstrate when Dr. attempted cross-examining Mills, the to ask a different prosecutor agreed defense counsel question, foundation, moved to strike Dr. Mills’s for lack of a sufficient testimony the court directed counsel to a discrete of the at identify part testimony which time the court would consider the motion. then did defense Only counsel their concern that if the fully identify misunderstood the drop sum, figures would not realize that they lost significant income, of his total percent even he was though very sophisticated the mathematical associated understanding with probabilities gambling. Counsel did not identify specific wanted struck part transcript they and all beyond saying “any these and the amounts testimony regarding drops these asked for a curative instruction. All drops,” parties apparently agreed that the had been asked in faith. The court offered to questions good entertain to entertain the stipulation, motion to strike evidence if the struck, defense identified what wanted or to permit prosecution make an offer of that his proof questions appropriate. Dr. Rosenthal testified that he
Finally, had no idea how much money had to with when he entered a gamble casino. then made an offer of People proof conceding drop figure accurate, losses, not fair and but wins and calculated on a basis, different showed that actually winning money during he told the he relied on and lost a sum. period psychiatrists signs large The evidence was to come in of the cashier through testimony cage on, at the casino whose records had manager been relied and both parties that she be agreed would on voir dire before called before questioned being the jury.
Barbara Kucala then testified that casinos “win/walk” records that keep estimate much a how has won or lost at a over a of player given game period 39Apparently attempt player heavy the casinos to make such estimates if a a seems to be (rooms, identify “high bettor in order to the special rollers” to whom casinos extend amenities food, reimbursements, etc.). beverage, air fare major There were then six casinos at the South Harrah’s, Sahara, Inn, (Bill’s, Tahoe). Harvey’s, Shore of Lake Tahoe Lakeside Caesar’s familiar, has become if the only player do so for a small They player time. than the average more if the beginning player gambles but do so from at the end of turned in aby supervisor amount. The would be figure pit would figure a table. A second win/walk at particular time person played which a different table. The figures, turned in then went to be if player estimates, clerk. The casino entered into the by pit are are then computer who used screen” win/walk record appellant, had available “trip the then there. Kucala also explained why name Samo when Gary gambling a used in had been taken from system cash which history, discontinued drop table gaming reflected the amount a approached Atlantic City, player a fair and accurate to track was not and had also been used gamblers with record was a better of the amount won lost. win/walk representation that record Maintenance of of the transactions gambler. representation Revenue Service. Those records reflected the Internal required $16,000. Samo won Gary from November through May unreliable, Defense counsel that the evidence was was irrelevant argued Mills, Dr. not testified that because it would not who had impeach did could not act in a rational fashion and that the evidence gambling, when not establish that had lost a sum since there was no evidence large at other An Code section 352 losses casinos. Evidence regarding possible also made. Defense counsel disclaimed based on any objection objection records records. The court ruled as business admissibility computer that there was a sufficient foundation for admission and that the records were reliable since business record was sufficiently subject type error in that the defense about. The transaction recording complained casino, transactions, records of the one some covering sufficiently to overcome the relevant to to function on a rational basis ability appellant’s lost at other Evidence Code section 352 If objection. money casinos, the defense could offer that evidence. records,
Kucala then testified40 about the offering substantially win/walk that had been on voir the same information about appellant’s winnings given dire, each but the amount won and lost reflected on (period reviewing “trip” bet made covered) record Her included individually. testimony average out that the those also during testimony brought by appellant trips. made Her testimony records were based estimates pit supervisor. a cash those records did not accurately also clarified what drop why and losses. reflect wins from record that the knowledge
It this appears psychiatrists’ $600,000 the six months asserted cash of over during preceding drop “running objections previously made were 40The court confirmed with counsel ruling be the same. objections” and that the court’s would *82 his mental at assessing crimes had relevance only marginal competence misled the if it caused the the time. The line of also have inquiry might jury that the that was winning to believe were unaware jury experts appellant not, believed, as the accor- losing money by betting money experts court dance with or from God. trial magical thinking signs apparently as, at the Kucala’s stated realized this inasmuch close of testimony, judge that the casino record exhibits would be admitted if “sanitized” to $656,000 remove the cash and asked counsel to consider “over- figure drop whether to strike the about that and the figure night” prosecutor’s questions that it had no or to leave both in. explanation meaning addressed to the To the extent this claim of error is prosecutor’s the cash records and admission of Dr. Mills’s testi- inquiry regarding drop the claim was waived. Counsel did not raise the matter We again. mony, infer that were satisfied that Kucala’s made it clear to testimony they record to referred in Dr. examining which jury drop prosecutor Mills, record, and the witness’s lack of of that were irrelevant to knowledge his diagnosis. clarified the lack of relevance
Because Kucala’s testimony sufficiently and the counsel are not was instructed statements questions by evidence, that, we are satisfied even if there was error in to strike Dr. failing Mills’s and instruct disregard questions, appellant reply suffered no as a result. prejudice of evidence
To the extent that the claims are addressed admission records, it merit. The court did not abuse the win/walk lacks trial regarding its discretion in that those records were admissible because concluding they reliable to be relevant to the defense claim that during were sufficiently crimes, six months was losing money by relying prior appellant records win/walk “magical thinking” messages guide gambling. that, least, in one casino at were relevant since established That evidence could cast doubt on won money during period. that was based in defense diagnosis legal insanity, diagnosis experts’ told them the truth when he on the assumption part experts’ he from an claimed to be in the belief that should follow acting signals that, result, as a he had lost a considerable outside force in his gambling sum of money.
7. Admission irrelevant evidence. of what that the trial court erred in admitting pages contends Tams,” writing. “Black a science fiction novel was claimed was
623 found in a Some found in his residence. pages, The manuscript pages notebook, the following entry: bore
“ELO-Rainin’ other, he each as he stood 69 watching girls + DEAD Powerful think of and killing. music made him flying
Didn’t even care. The her, for the hell of it." He choked the life out of just when the excluded the evidence at the guilt phase prosecu- The court had cross-examining Before tor to offer it as evidence sought premeditation. Mills, counsel that he advised the court and defense Dr. the prosecutor whether, a recordation of if those statements were would ask the witness violence, have a on bearing would entry kind of sexual activity God, a or if showed if were a from message they diagnosis, they expert’s Defense counsel objected different indicating diagnosis. psychopathology deem nonsense” and “sheer which we of “absolute grounds poppycock” The court been an assertion that the evidence was irrelevant. have be asked about that an reasoning expert may overruled “objection,” unless an Evidence Code section considered in anything reaching diagnosis made such an sustained. Defense counsel then objection. objection about the The court ruled that the would be permitted inquire prosecutor about the number and whether it had sexual full but not passage, simply connotation. it as
When asked about the Dr. Mills characterized “pseudo- passage, “trash,” that it did not mean stating anything particular pornographic” He believed claim reaching passage diagnosis. appellant’s from “Black Tams." He, too, Dr. Rosenthal about the also asked passage. prosecutor Finally, during closing
believed it was of the science fiction novel. part failed to how the that the defense show argued argument, prosecutor fit into the science fiction novel. passage contends that admis- the “69”
Emphasizing only passage, appellant error. It was not. The complete passage sion of the evidence was prejudicial conduct aby and homicidal described both sexual interaction between girls not unreasonable to ask experts indifferent to death. It was person others) when assessed they this writing (among whether had considered came to a conclusion that for his behavior and explanation it and the use of delusion. The evidence was relevant acted under an insane and Rosenthal was within scope in cross-examination of Drs. Mills 721. Evidence Code section cross-examination permitted additional counsel failed to We defendant’s defense reject argument this provide constitutionally adequate representation during exchange. claim is based on counsel’s failure to call to the attention of the court that the *84 closest in the notebook the with re- “69” page containing passage began so, reasons, ference to “B-T.” Had counsel done defendant it have would been to the court that the the “Black apparent passage part claim Tams” as to the the is both conclusion manuscript. speculative court have the the and drawn from two entries might juxtaposition Moreover, to the the court have made. as the found ruling might experts no in the admission of that evidence significance passage, prejudicial.
8. Admission evidence “violent streak.” his claim that the found in mobilehome Reprising guilt phase writings violent, inference did not warrant an that he evil or that appellant argues the court erred in into at the admitting sanity evidence phase permitting the to Drs. Mills and about the on Rosenthal prosecutor question paper which written: “If aren’t a choice* whether or not to you given appellant live, kill but can choose who or or how or the # to die or it’s not when murder. Death is some situations.” given Appellant objected m admission of the document and a the that there thereof on blowup ground was insufficient foundation to establish when item was written (Evid. that its its value. ground outweighed prejudicial impact probative Code, 352.) The court that at the overruled objection, noting guilt § the evidence had been excluded as too but it could be used phase prejudicial, laid cross-examination of the if a foundation was experts sanity phase it, and, so, the witness if he had seen the document and read if if he asking considered it and if it had an effect on his The court ruled opinion. expressly that in the value of the evidence would outweigh sanity phase probative its “The heard an abundance of evi- prejudicial impact, explaining: jury’s this, dence that is not dissimilar to and I don’t think that this is going inflame or so that can’t the value of the outrage they weigh jury properly doctor’s testimony.” that statement was irrelevant
Appellant argues incurably about and consider it as its vague, leading jurors speculate meaning evidence, all of which he claims violated Evidence Code sections propensity 350, 352, (a), subdivision and federal due He concedes process. that he did not on those but claims that would have objection object grounds, the court’s on his We that an agree been futile given rulings prior objections. have been but that is because unavailing, on those would objection grounds asked it have lacked merit. At the was not sanity being would phase, murder, he was not guilty had committed but whether to decide if appellant reveal a writings might philoso- reason of Insofar as insanity. appellant’s murder, to the of the relevant opinion condoned which phy or a an insane delusion God acted under appellant psychiatrists murders. The condoned the rather than this philosophy, higher power, to the to be weight given experts’ opinion evidence was relevant statement was went vague was insane. Whether it in might give assessing persuasiveness the weight no error in admitting was insane. There was experts’ opinion the evidence. use of the
To the extent that here that argues prosecutor’s *85 in misconduct and that counsel was incompetent failing evidence constituted evidence, the exclude the evidence as character or propensity to seek to The use of the evidence did not exceed proper scope claims are rejected. Code, (Evid. 721) and no issues cross-examination of the witnesses § raised that use. character and/or propensities regarding appellant’s failure to make meritless Counsel not be deemed may incompetent objections.
9. Instructions. that the failure to instruct at the sanity phase pursuant claims Appellant be from the fact CALJIC 2.60 that no adverse inference should drawn No. that had been at given that the defendant does not when instruction testify, could be could lead the to infer that such an inference guilt phase, jury We assume that drawn at the We do not share sanity speculation. phase. that are not continues to instructions at the given guilt phase jury apply (1995) 11 inconsistent with instructions. v. Sanders (People sanity phase 475, 751, Moreover, 420].) he did not Cal.4th 561 P.2d 905 Cal.Rptr.2d [46 that he concedes need that the instruction be an instruction request repeated, (See v. not be sua but is left to counsel’s discretion. given People sponte, 1168, 666, 301].) (1987) 43 743 P.2d Gates Cal.3d 1208 Cal.Rptr. [240 also contends that the court erred in instructing thereby of a of not reason of guilty by insanity, verdict consequences and due He did not object trial violating right jury process.41 with counsel. He instruction when instructions were discussed sanity phase insanity, it guilty not reason of jury 41The court instructed: “If the returns a verdict of custody were he found to be defendant be released from as it would does not mean the will Instead, the courts remain in confinement while guilty not of the criminal act itself. will not, placed be in a fully sanity. If he is he will determine he has recovered his whether treatment, depend- facility, outpatient in mentally equivalent disordered or hospital for However, be removed from mental illness. he cannot ing upon present the seriousness of his 626 in People court a to this instruction challenge
concedes
this
rejected
677,
495,
385],
P.2d
(1992)
822
1 Cal.4th
537-538
Kelly
Cal.Rptr.2d
[3
instruction,
4.01,
that the
CALJIC No.
is one
There we concluded
basically
a
is to
finding
sanity by
to aid the defendant. Its
given
purpose
prevent
would lead
concerned that a
of not
reason
guilty by
insanity
jury
finding
claims, however,
He
to the release of the defendant from custody.
held that the instruction is im-
United States
Court subsequently
Supreme
S.Ct.
United States
The Shannon is not as broad would have holding court held out of a criminal trial in a federal court. There the only arose not reason of an instruction on the of a verdict of guilty by consequences (18 Act Defense Reform of 1984 Insanity insanity required by defendant, 17, 4241-4247) of a and declined to U.S.C. on request require §§ to its over in federal the instruction supervisory power procedure pursuant at 2426- (Shannon, at S.Ct. supra, pp. courts. U.S. pp. [114 that the instruction 2428].) One reason for to do so was declining verdict, of its would draw the attention of consequences consider when should something imposing punishment 2427-2428].) at at in Shannon (Id. Nothing case. S.Ct. pp. capital p. like that here violates consti- an instruction given suggests giving *86 tutional of a defendant. right
10. Cumulative prejudice. assertion that the
Each of errors identified above—the prosecution defendant, an examination of had no to seek right independent psychiatric sanity has been placement and until the court determines and finds the defendant’s that unless restored, California, has been fully with the law of or until the defendant in accordance been equal period imprisonment to the maximum of which could have period confined for a insanity. guilty guilty by than not reason of imposed had he been found rather guilty by of misunderstandings relating to a of not reason you “So that will have no verdict relating health laws insanity, you general informed as to the scheme of our mental have been instructed, however, that what You are now to a defendant insane at the time of crimes. determining by you in is not to be considered happens to the defendant under these laws may the crimes. You not sane or not at the time he committed [T whether the defendant was when, if, your fully again. It is not the defendant would be found sane speculate as to concerned, you you are are the defendant is now sane. So far as function to decide whether crimes. at the time he committed his only decide whether the defendant was sane at the time he you defendant was insane upon of the evidence believe “If consideration crimes, charged operation of our you that those officials with committed his must assume manner, responsible system perform duty their in a correct and mental health will a safely society. It would be he can be returned into not release this defendant unless will find the defendant sane at the time he your duty jurors you if were to violation of the courts Department of Mental Health or because of a doubt that the committed his offenses carry responsibilities.” out their properly will the defense cross-examination and the improper court’s vouching, cred- assessment jury’s had some impact have experts—may nonetheless, satisfied, errors at the that the are of those We ibility experts. or cumulatively. individually not of the trial were prejudicial, sanity phase true, as the dissent It is been minimal. if would have any, impact, ill. How- observes, mentally believed appellant that all of experts their differed as did ever, of his illness on the severity their opinions that testified appellant the three defense experts While diagnoses. none from moral wrong, moral right of knowing insane legally incapable and acted to seize the girls formulated his plan that when testified appellant know, that his conduct of knowing, he did not or was incapable on that plan of morality. standards of society’s generally accepted fell outside the norms this, had a unique concept like where the appellant is not in a case enough It dissent, that a is incapable as does the person to say simply, morality, God has if he or she believes that conduct is morally wrong recognizing that conduct. commanded disorder on of delusional or paranoid
Dr. Mills based his diagnosis God, from but appel- must obey messages belief appellant God, lant, and their chaperones. formulated the to seize girls plan command of the defense experts from God and none That was not plan time messages during believed he received such indicated appellant basis for in his trailer and killed the chaperones. he held girls wrong did not understand his conduct was morally conclusion on the way to one lights green was his statement expert thus did not of his plan. trailer and God disapprove but be- Dr. did not make a firm diagnosis schizophrenia, Rosenthal He too and was delusional. lieved that suffered psychotic episode God, but he was from receiving messages believed accepted *87 believed God there was no indication in his again testimony appellant and kill the chaperones. had commanded him to take girls disorder with had a mixed personality Dr. Satten concluded appellant He had a disorder. and briefly psychotic obsessive-compulsive components, he was doing did not understand what concluded that also appellant made mental illness he did not testify appellant’s but morally wrong, immoral under gener- that his conduct was understanding him of incapable standards. ally accepted
Thus, errors, of these credibility experts absent the and assuming even have differed. The information the result would not was unquestioned, suggested only appellant, to the defense by appellant supplied experts 628 force, and later to kill formulated the to take the girls
not some outside plan acts nor told him to God neither commanded those stop. chaperones. related in any way of the information gave experts None appellant that his acts were not to understand or his actual understanding his ability or ethical standards of be- under moral generally acceptable any accepted Moreover, conceded that idiosyn- attorney appellant’s havior. him of God and which morality—that gave pleasure cratic concept addition there an of In morality. good—was accepted concept events, his use of of extensive evidence appellant’s preplanning selecting and his deliberate conduct in interviewing disguises, molestations, claim as to which he did not any victims of his sexual from God. messages approval that there is a therefore or the dissent
We do not with agree Watson, 818, 837) that the v. 46 Cal.2d {People supra, reasonable probability the errors affected the verdict. sanity cumulative impact C. Phase Issues. Penalty Exercise peremptory challenges.
1. selection. Nine exercised 14 challenges prosecutor peremptory reluctance to vote for asserts had jurors expressed were directed to result, T., C., R., J., O., H., G., H., and L. As Jurors death—Prospective about no who had reservations capital punish- argues, juror This, asserts, him his federal and state on the he denied ment remained jury. to due heightened reliability penalty constitutional rights process, verdict, neutral, and a penalty phase jury. representative, claim insofar as it that this court has rejected concedes
Appellant v. challenges. (People Davenport relates to the exercise of peremptory 800, 1068]; P.2d v. People Cal.Rptr.2d 11 Cal.4th 83, 153; Turner, Crittenden, Cal.3d v. People supra, Cal.4th supra, 9 issue, that use of a the court to reconsider the 315.) arguing He urges as errone to a defendant’s damaging rights is challenge just peremptory on a statement for cause. relies excusal of a scrupled juror ous (1987) 481 Gray Mississippi Court in made the United States Supreme 2045, 2051-2052, 622], which 95 L.Ed.2d S.Ct. U.S. 658-659 [107 *88 of . . . the exclusion for cause prospective edits: “To selectively permit deck .... their of the death based on views penalty ‘stack[s] jurors death sentence would deprive To execute a] against [such [defendant]. ” due of law.’ his life without process him of
629
statement,
fact, however,
refers
In
the court
which actually
preceded
(Gray
supra,
the exclusion
“other
v.
jurors”
Mississippi,
to
prospective
2051]),
Finally, object exercised 17 of ground him. 26 available to He had it challenges within his peremptory power alter the of the of which he composition now complains.
2. Absence during closing arguments. of defendant
A criminal defendant with a has a due charged felony process right under the Fifth and Fourteenth Amendments to the United States Constitu- tion, Amendment, as well as a to confrontation under right the Sixth to be at all critical of the present trial. v. 18 Cal.4th stages (People Frye 183].) 1010 P.2d A Cal.Rptr.2d 959 defendant competent may (Ibid.) waive that right, however. Neither the constitutional to confron- right tation nor the to due right waiver of defendant’s process precludes right Bolin, be at a critical of a present trial. stage capital {People supra, defendant, 325.) Cal.4th at Section leave of p. with permits felony court, to waive his or her at all of the trial other than presence stages evidence, arraignment,, Section plea, presentation sentencing. however, execute, court, that the defendant requires, personally open written waiver of the to be right present. trial,
Prior at the defense closing arguments penalty phase counsel advised the court that and chose not to very agitated be for the After that this present prosecutor’s closing argument. advising detriment, would be to counsel and judge permitted to confer in the court’s chambers. After that counsel conference advised *89 listen to the he could not sit and
court that said that mentally appellant to dissuade Counsel invited the court attempt appellant, prosecutor. about past exemplary the court addressed directly appellant’s appellant behavior, concurred to the that that his absence could suggest jury appellant nature of the argument, the anticipated in what the saying, prosecutor that he could listen to have to determine if and that would appellant that it be might control. The court also suggested without argument losing absent only during prosecution argument. detrimental if appellant conferred, after defense counsel and his counsel which again Appellant crimes, that, for the acknowledged advised while appellant responsibility to be the had been what he prosecutor’s upset by perceived appellant had the three months of trial. Counsel of his life during mischaracterization remain, to him that but also acknowledged advised should appellant to be then stated that it was preference it was his trial. Counsel thereafter, left before both arguments. Immediately appellant absent during courtroom, the court asked if appellant discussed stipulations, parties court The trial to which “sure.” replied to be present, appellant wanted during that he not be asked present advised and the court had honored that request. of counsel argument of a not a at which the presence is Closing argument proceeding personal However, did not section 977. defendant is felony required by and he did to be absent during closing argument himself express preference not execute a written waiver. to ascertain that a waiver was necessary now claims personal
Appellant federal and state surrendered his that he had knowingly voluntarily trial, that his at attorneys to be right complains constitutional present contributed to error. is subject deciding, closing argument but not
Assuming, (1997) 15 (see People written-waiver statutory requirement Bradford waiver P.2d Cal.4th Cal.Rptr.2d 259] [written defend]), in this nothing if affects opportunity proceeding required of his as a result suffered any prejudice record suggests of counsel. absence during argument act. violent prior sanity phase
3. Impact of reference to infer from the sanity was bound contends Dr. Kaldor he had (that he had told he complained evidence which phase self-defense) that he had killed someone act of violence committed prior that, as a case. He claims those in the similar to present in circumstances
631 result, he was forced to an instruction to the that it should request not jury consider that evidence. The was instructed: “In the jury testi- sanity phase was offered the mony concerning defendant’s involvement in inci- alleged dents of violence events 1987. You are instructed prior May, [f] that such cannot be considered a testimony verdict in the by you reaching penalty phase.” asserts this instruction not would cure the of the impact error.
sanity phase We found no error in the permitting sanity into whether phase inquiry incident, and, had told Dr. Kaldor about the Puerto Rico since he had not done so whether he considered that initially, failure significant. Inasmuch as that evidence was relevant and admissible at the sanity phase, reversal is not the required appellant’s theory jury might consider the evidence the court’s notwithstanding instruction. Inasmuch as appellant instruction, the requested may now claim that the instruction height- unexcused, ened the the possibility would infer a jury prior, killing. ( People 86, (1992) v. Hardy 2 Cal.4th 152 781].) 825 P.2d Cal.Rptr.2d [5 instructions, We do not that it agree is not possible, through the “unring Rather, bell” heard earlier. we assume the capable following court’s instruction here to evidence of disregard crime that any uncharged fail to People prove (See reasonable doubt. beyond People Champion Cal.4th 949-950 93].) P.2d Cal.Rptr.2d court had no obligation to go instruction beyond and to requested given, sua give broader sponte instruction like that now proposed by appellant.42 Indeed, by evidence, further emphasizing sanity the instruction phase have made it might more difficult to ignore evidence.
We do not agree with additional claim that the would ignore instruction given the court to by disregard sanity phase evidence of a violent act prior because court next instructed that the jury could consider all of the evidence introduced at of the trial any part “except 42Appellant offers as a appropriate more example: sanity phase, instruction this “In the reference was made allegedly ‘violent act’ appellant prior committed offenses presently for which he sanity is on trial. In the phase it did not matter whether such an act actually questions occurred. I subject though allowed on the independent even there was no any evidence that such act ever occurred. contrast, “In penalty phase, actually it does matter whether such an act place. took time, therefore, At this you I must tell that all of any the evidence that exists that if indicates prior fully violent act occurred it justified. considering In penalty impose, which consequently, highly you it would be improper prior to consider the act referred to in the sanity phase way have—absolutely is adverse to the defendant. It has—and should bearing you no on the determination are to make at this time.” jurors be instructed.” Reasonable would understand you may hereafter
first, to bar violent act evi- instruction consideration prior specific, dence.
4. Prosecutorial misconduct. *91 “gruesome”
a. use Inflammatory photographs. of of murder to admission of various the Appellant’s objections photographs the face while clear and after victims Martin’s depicting wrapped plastic removed, been and of the of Walsh with after removal body had plastic torso, the of the clear that covered her overruled during were plastic upper the When first to the court guilt phase. preliminary ruling, presented court that of the other than exhibit Nos. 60 and 61 photos observed none so were and stated that were not particularly gruesome they inflammatory that a be or bothered. As to the identified would incensed photographs 61, the offer Nos. 60 and the court said that would exhibit have People hard evidence and before he would admit them but “on arguments” “pretty ten . scale scale of one to of other homicides . . not they’re upper either, The do more some of the details.” but they graphically portray exhibit the manner in the that No. 60 showed which prosecutor explained trussed, exhibit showed the actual mechanism of victim was while No. 61 intact FLEX-CUF—all of of malice and death—the which probative The indicated the would have to be court that value premeditation. probative he under Evidence Code section before would exercise discretion high them. admit admis- were admitted. At time Exhibit Nos. and 61 subsequently discussed, counsel that he had “some sion of exhibits was defense stated the bound about exhibit No. body concerns” photograph exhibit, The court admitted that twice that it was stating Walsh. Dorothy to exhibit No. which particularly gory. objection depicted other ruled that that it was of two court ligature, photos. duplicative and one of the other would be admitted. exhibit No. 61 photos use of the which claims that admission and photographs, closing were shown to jury again by prosecutor during apparently the due under the Amendment and Eighth violated his argument, rights He argues of the Fifth and Fourteenth Amendments. clause process issue, testimony relevance to were cumulative expert insufficient death, Ander- (People and were unduly gruesome. the cause of regarding addition, claims, son, 1137.) 43 Cal.3d In prosecutor supra, used the to arouse revulsion and rather than to elicit from photographs anger a reasoned moral To the extent this latter claim is one response. misconduct it was waived as he failed to We deem prosecutorial object. made were broad objections his constitutional enough encompass claims and therefore need not address his claim that if the objections counsel rendered ineffective assistance. inadequate We have examined the no find error the admis- photographs sion and use of these exhibits. are not They gruesome accurately depict of the method of aspects were relevant to issues in the case. killing Exhibit No. 60 confirms the victim’s hands were no bound longer found, behind her with FLEX-CUFs when body but were tied in front with Thus, string scratches on her neck rope. could have been caused by her fingernails as she loosen in order to breathe. attempted ligature *92 not, Exhibit No. 61 ain oral could depicts, way how the testimony tight FLEX-CUF was pulled, the victim’s neck to an compressing extraordinary degree. Photographs corroborating testimonial evidence are admissible as assist the in jury the v. understanding evaluating testimony. (People 1133, (1997) Ramos 15 Cal.4th 950].) 938 P.2d Cal.Rptr.2d [64 was, The intent, evidence as the relevant to prosecutor argued, premedi- tation and malice. The trial court did not abuse its discretion in admitting these exhibits. v. (People Medina 11 Cal.4th 754-755 [47 Cal.Rptr.2d 2].) 906 P.2d of the
Display photographs during penalty was not mis- phase argument conduct. The is jury to consider evidence the permitted regarding 190.2, circumstances of the crime admitted (§ at the (a).) subd. guilt phase. The photographs relevant to the of the death appropriateness penalty. {People Thus, Smithey, supra, 959-960.) 20 Cal.4th at pp. contrary claim, appellant’s trial counsel’s failure to to that use of the object photo- the graphs during does not penalty reflect phase incompetence.
b. Penalty phase argument. that Appellant contends numerous other aspects prosecutor’s pen- alty phase argument were He cites as misconduct the improper. prosecutor’s arguments that the jurors should not for permit sympathy appellant’s parents determination;43 to influence their that had not penalty expressed witnesses, 43Referring penalty phase to the defense prosecutor the pointed out that none of adult, them knew as an person appellant or knew the had become at the time of the acknowledges offenses. He appellant’s parents misery. that suffered untold He then said: “But remorse;44 engag- to death to him from should be put prevent activities;45 were not and that the murder victims in various noncriminal ing about, you framework in that His will tell nowhere in this nowhere the factors Honor (indicating listing posted tripod]) factors aggravating mitigating on [apparently railing anyone analysis anywhere may sympathy beyond have for this jury is there where this (indicating). jury anyone can this sympathy applied not one bit be for There is courtroom, beyond your the either side. focus is on Herbert James place sits this in And [10 sinner, Coddington Coddington, and the that Herbert James committed. the crimes They only allow sympathy parents upon cannot for to intrude its verdict. can jury allow the Herbert, defendant, (indicating) in to be balanced sympathy expressed the as these factors through you go evidence.” and considered as jurors prosecutor killings apparently displayed photographs to the 44The described intact on bags the murder still trussed and with one FLEX-CUF admitted earlier of victims having responding defense reference to his argument, the neck of the victim. As his final to a again stating: “What did prosecutor photographs, referred photographs, shown it and to really you jurors do twelve have a chance to see it to know people he so that Mr. eight photographs it. those are all about. That’s what understand That’s what six or Coddington really were not sent into the room when the went photographs did.” in to deliberate. During phase argument prosecutor rhetorically: asked “And what opening penalty remorseful, Coddington, sorry, apologetic about Herbert sinner? Is he for what James ” Then, noting profoundly is ‘no.’ father has done? And the answer prosecutor harmed said: “And people by appellant, testified that his heart went out to the gentleman, fine and the father of somewhere those words were the heart of a honorable snake, Coddington, jackal, Coddington, Defendant Herbert Herbert James but James vulture, professes no words in remorse for what he has done.” whatsoever *93 there came 45Stating juror, argument saying not a closed his that prosecutor that he was the he if he had jurors’ a time when in the shoes and asked himself how would feel put he himself then acknowledged easy a death. He that task was not and jurors’ returned verdict of the so, there he had not and contrasted return a death verdict with how would feel if done of date, if, Coddington beating asking: despite savage no the that Herbert execution “What cell, Walsh, composing gave Dorothy picture, Coddington sat in a as shown in the Herbert if, placing a around neck of Mabs despite further fiction? What Flex-Cuff the [szc] science [10 down, Martin, increments, Coddington was in pulling tight tightening and and it Herbert it if, [*[Q despite that Herbert prison drafting accounts of the ‘Black Tams’? What the fact further Coddington expected,’ Coddington ‘It is better than I ever Herbert said to Michael Szeremata: if, Coddington lay reading Playboy What the fact that Herbert Magazine? despite on his back bag trash up Dorothy turkeys, and much like stuffed them into a trussed Mabs Martin Walsh side, grievances how he had by Coddington pan Herbert continued to of slept [szc] and their life, casinos, by the system, by by parents, by by possibly cheated his the the and been if, rings and Dorothy Walsh their despite stripping Mabs Martin and of warden? What Parcheesi, chess, games, Coddington daily basis board jewelry, played Herbert James on a murders, if, [1Q rape, a counts of oral Monopoly? despite What conviction of two and the two Coddington rape foreign object, a Herbert continued copulation, and two counts of with prowess. of his sexual autobiography keep entries continued to records [ID make in his and ladies, if, cruel, sadistic, atrocious, elderly despite attack two What the most immoral casinos, published and he Coddington Herbert devised a method to overreach and cheat analysis of those Coddington? results the name of K. Somewhere under atone, Coddington must and the sinner weighing, Herbert analyses], somewhere in moral State, of this you, conscience of this pay for in the manner that collective must his sins community, appropriate.” to be determine members, bikers, truckers, or He also cites as longshoremen, gang Johns.46 misconduct the and refer- prosecutor’s assertedly inflammatory derogatory ences to reference to a sinner who must atone for his appellant, appellant’as sins, and reference to as an factor age notwithstand- aggravating a could not be He ing agreement considered. prior age complains reference to tears” was and at this “hymeneal improper prejudicial phase the trial also.
No was made to objection now argument appellant rule, claims was that failure to or an admo- improper.47 object request nition to the and to afford the trial court the cure jury, thereby opportunity of misconduct admonition to the constitutes a impact waiver jury, misconduct, an claim of appellate to a prejudicial applies prosecutor’s penalty argument. (People 854.) 15 Cal.4th at phase Samayoa, supra, p. have, nonetheless, We reviewed and conclude prosecutor’s argument evidence, it did not exceed bounds. It was tied to the proper related the based, evidence to the factors which the decision should be upon penalty argument would invite a verdict based on passion prejudice. 5. view Denying jury Without Possibility Parole of Life incarceration.
During penalty discussion phase between court and counsel regard- ing duration of anticipated further necessitated proceedings, concerns case, 46Discussing the prosecutor circumstances of the stated: “Did Mr. Herbert James Coddington longshoremen kill a in a café? Coddington waterfront Did Mr. Herbert James kill biker, clad in steel-toed boots and gang?” 200-pound the colors of a “Did he kill a truck Martin, stepped driver as he from the cab of a Kenworth diesel? He age No. killed Mabs Walsh, Dorothy age grandmothers. Dorothy two . . . Mabs Martin and Walsh HD were two vitality youth defenseless women who had rounded the of their and had entered a stage your step of life quickness wherein slows down a little bit agility and where are something a past year. They Coddington no match for Herbert James quest whose health produced strong agile and fitness had body. you And so I submit to that when you convicted, look at the circumstances of crime of which defendant was the murders *94 Martin, Dorothy of they Walsh and Mabs Coddington were murders not of a match for Mr. any sense but bargained two defenseless women who never for that kind of result.” He went person might on to contrast activities in a they entering which be aware that place a danger from those in Calling which the two women jury were killed. the attention of the age 190.3, vulnerability (§ of the (a)) murder victims as circumstances of the crime factor 312, (1997) improper. (People Carpenter is not v. 15 Cal.4th Cal.Rptr.2d 412 P.2d [63 935 708].) prosecutor argument, 47Afterthe presence had concluded his out jury, defense put objection counsel asked to on the an argument asking jurors record to place to place imagine they through, themselves of the victims and the horror went and to what was horror, “inflammatory” fright, characterized as reference to the pain the murder victims they attempted felt as remove FLEX-CUFs. The court ruled that the latter evidence, inflammatory, emphasized by prosecutor was within the and was not who simply jury asked the to consider it one of the factors. 636 their commit- future regarding and alternates several jurors
expressed that, was to be ments, motion for a visit stated if a written prison the court that this made, judge. “real with with defense have problems would No You’ve had months to prepare.” to think about that. You’ve had months oral, in which to view the conditions written request, to life without the possibility parole confined if sentenced would be entertain as a refusal to the court’s comment characterizes made. Appellant that if such court not unreasonably, It was not. The expected, a motion. their delay be made counsel should prepared explain motion were to be on of the trial schedule which and to justify any disruption to agree. attempted motion, has no right defendant there been such a capital
Even had the conditions chamber or of either the execution to insist on a view would be served. of parole a term of life without possibility under which to a sentenc- is irrelevant capital the conditions of confinement Evidence of thus, deny capital such a view does not refusing permit scheme ing Osband, at 13 Cal.4th supra, p. v. right. (People defendant constitutional 713; Cal.Rptr.2d Lucas Cal.4th People 373].) P.2d on deliberation. length
6. Comment evidence, the held a conference judge the close of the penalty phase After the court of had advised personal and two alternates who with two jurors deter- He their attention. attempted or concerns that required obligations those would avoid problems. trial schedule mine whether anticipated counsel, during stated judge received from information he had Based on thing can the whole up” that “we wrap that conference that he anticipated that ahead. He later one week repeated which was Wednesday, the following on free of estimate, “being could count he thought they telling jurors had told the jurors Because the court Wednesday. this” on the following jurors statement Tuesday, begin would closing argument take a deliberations would that jury on Wednesday implied would be free or less. day delibera- phase that the penalty argues implication decision would to the jurors penalty be short suggested
tion would it was improper. conveyed impression court’s statement be If the easy. of a the credibility evidence and on comment on the court may Generally, *95 accurate, witness, ‘scrupulously are temperate, its remarks “so long ” 867, 750 Cal.Rptr. 44 Cal.3d (1988) Melton [244 fair’ v. (People how the a view on extend to offering does not 741]), but that authority P.2d balance of factors should be in the aggravating mitigating weighed of a case. penalty phase did not to the court’s capital object Appellant comment, however, and thus did not this claim for preserve appeal. (People v. Wader 5 Cal.4th 80].) 854 P.2d Cal.Rptr.2d event, In not we do with that the agree assertion comment would influence have undue and on the The court had improper jury. occasions, discussed with the on several scheduling jury when apologizing available, an recess was if early necessary witnesses were not and had need expressed to with outside understanding jurors’ cope obligations. The jurors were aware that estimates had been inaccurate and would past understand that this estimate too was offered their being ease only concerns. At this of the trial the stage who had jurors, deliberated already guilt sanity, were familiar with the deliberative and of the process of that overarching importance process determining appropriate pen- It is not alty. reasonably probable court’s estimate had any impact the deliberative at the process of the trial. penalty phase Erroneous,
7. inadequate, ambiguous instructions.
a. Consideration all evidence. was instructed in the jury of former language CALJIC No. 8.84 that it should consider all of the evidence received at of the trial any phase “except as hereafter instructed.” consider, also told twice that it “shall account, take into and be guided by” factors relevant to the statutory (§ 190.3.) decision. penalty contends that the first of these instructions permitted
consider all of the evidence received the earlier during of the trial stages regardless whether evidence was relevant to one of the factors. statutory instruction, claims, The second was not sufficient to restrict consideration of evidence that was not relevant.
While an instruction that evidence should be considered if it relevant one of the factors would be did statutory proper, appellant such an instruction and request the court was not one sua required give Moreover, sponte. (People 947.) 9 Cal.4th at Champion, supra, p. evidence introduced at the sanity identifies as irrelevant phase was in fact relevant to several acted statutory factors—whether appellant disturbance, under the influence of mental or emotional whether defendant conduct, believed he had moral justification extenuation for his whether his to conform his conduct to the capacity law was impaired by
638 190.3, (§ (d), (f), (h).) Much other mental disease. factors evidence, the referred in argu- to which prosecutor closing specifically ment, at could be considered in rebuttal to evidence presented mitigating the penalty phase. " 190.3, (b). as
b. Instruction to section factor likely contends that the to misunderstand instruc- Appellant jury tion, 8.84.1, consider, “the CALJIC that it “if applicable,” former No. those he been criminal other than acts for which has absence of activity trial, or involved the use or use force convicted in this which attempted worded, believe that As would argues, jury only violence.” an of other criminal activity mitigating, understanding absence complete referred to factor as “absence of reinforced defense counsel who in which identified argument criminal activity” prosecutor’s criminal nonviolent as factors. activity aggravating prosecu- He that the witnesses argued tor did not do so. defense only penalty phase did not know who about character as appellant’s sterling youth testified an about his conduct as adult. that the
We no “reasonable likelihood” understood instruc- jury find now v. (Boyde tion in the manner suggested by appellant. California 370, 1190, 1198, 316]; v. L.Ed.2d People 494 U.S. S.Ct. 108 [110 Benson, 801.) 52 Cal.3d at supra, p. (h) (d) Instruction as to section 190.3.
c. factors whether the (d) of section to consider Factor 190.3 permits jury “under the influence of committed offense while defendant capital (h) or disturbance.” Factor of section extreme mental emotional 190.3 “to appreciate consider whether defendant’s capacity permits to the requirements of his conduct or to conform conduct criminality defect.” a result of mental disease or The jury of the law was impaired was so instructed. these be considered contends that factors may evidence Osband, we reaf- v. 13 Cal.4th at supra, page In People
mitigating. 190.3, (d) not instruct that section factor that a court need firmed our view however, held, considered in We have mitigation. be may only these, be (People factors considered any, may aggravating. absence of P.2d (1985) 41 288-290 Cal.Rptr. Cal.3d Davenport instructed, who argues, jurors not so 861].) Because illness defense was an defense or a mental thought did not believe in insanity *97 that defense as a factor in his reliance on a would have considered “cop-out” instruction, He did however. clarifying not aggravation. request instructed to on evidence. reliance Appellant’s The jury properly rely We no mental defense was not itself evidence. see on an or illness insanity misunderstand the instruction in the manner that the would jury possibility Nor a reasonable fail to evi- juror identify would suggested by appellant. Benson, 52 Cal.3d supra, dence of mental illness as mitigating. (People 754, Thus, 802.) the failure of defense counsel to further instructions request cannot be deemed incompetent prejudicial. sum,
In the record assertion that the does support appellant’s jury relied on an invalid factor. aggravating
d. Failure to that absence is not mitigation aggravation. instruct held (1992) We v. Livaditis 2 Cal.4th 784 People Cal.Rptr.2d [9 72, 831 P.2d that the court is not to instruct that the absence required 297] factor is not itself further: that mitigating aggravating, stating “Although [citation], would be a correct statement of the law instruction to specific that effect is not at least not the court or make an unless required, parties or contrary improper suggestion.” contends that two of the argument obliged aspects prosecutor’s
the trial court to instruct that the absence is not factors mitigating He claims that the to the that evi- aggravating. suggested prosecutor dence that did not come from a home was repressive aggravating, and that he lack of remorse was argued aggravating. did not from a home is a factor prosecutor argue coming good militating in favor of death. related relies Again, appellant argument only which, defense evidence rebutted what penalty phase prosecutor argued, “somewhere . . . heard” about a and terrible child- repressive hood.”48
The reference to after a the manner in remorse came recitation describing defenselessness, died, which victims their that the theory prosecutor’s lust, victims died because stood between and his sexual at the end of which the asked “And what about prosecutor rhetorically: remorseful, sinner? Herbert James he sorry, Is Coddington, apologetic ” for what has done? And the answer is ‘no.’ There profoundly no absence of remorse is argument aggravating. import was, prosecutor probably, psychiatric 48The “somewhere” to which the referred most testimony relationship parents. that mentioned statements made about his with his and circumstances heinous nature aggravated, argument highly misleading was neither remorse. That the crimes were not tempered by he or she lack of remorse if A comment on nor may improper. prosecutor v. Proctor (People this an factor. does not is suggest aggravating 1100].) P.2d 4 Cal.4th Cal.Rptr.2d murder aggravating. elements Considering degree e. of first *98 have been instructed next contends that the should jury Appellant of the crimes that part parcel it could not consider any aspect He derives authority murder as aggravating. the elements of first degree (1988) v. 45 Dyer statement in People from this court’s this proposition 1], instruction P.2d that the following 77 753 Cal.3d Cal.Rptr. [246 could consider aggravating framework within which jury was a useful “ circumstance is ‘An aggravating set but in section 190.3: circumstances fact, of a crime which the commission attending condition or event is which or adds to its injurious consequences increases its or guilt enormity, ” the elements of the offense itself.’ above and beyond instruction, was not which he complains of that understanding Appellant’s case, that the manner in which did not Dyer say in this is faulty. given could not be considered were established elements of first murder degree commis- attending that additional circumstances It said aggravating. only be considered. of the crime could also sion 190.3, (a) a jury section factor accepted, construction of
Were appellant’s extensive or evidence of planning the method of killing could not consider That is not the law. factors. aggravating offered to establish premeditation 190.3, (§ factor the crime or crimes be considered. may circumstances of All see, Ramos, at 15 Cal.4th 1170 [photographs v. (a); People supra, p. e.g., wounds, also manner of inflicting form of killing, execution-style showing Proctor, at 552 intent]; Cal.4th supra, p. v. People [fact relevant beaten, stabbed, cut, intentionally line and victim raped, telephone 190.3, (a)].) factor considered under tortured § properly 190.3, (d). as to section f. Instruction factor that his have believed that one or more jurors might argues Appellant “extreme.” He contends because it was not not mitigating mental illness was in his other circumstance could consider any that it jury that instructing of- that the defendant “character, mental condition background, history 190.3, (k)) was not also factor (see 1st see in par.; fers” mitigation § section following of the instruction the misleading impact to offset sufficient 190.3, should consider: “Whether or not the offense (d) factor that the jury under the influence of extreme committed while the defendant was or emotional disturbance." mental this but notes that in concedes that we have rejected argument, v. 52 Cal.3d 443-444 People Wright Cal.Rptr. so
doing 731, 221], understood the 802 P.2d we said we would presume to the contrary. Although instructions evidence correctly, barring conclusion, he such The record of our offers no evidence. logic disputes not, claims, as he demonstrate that the failed to give weight does proper mental and emotional difficulties. Nothing evidence appellant’s this record or in us that we should reconsider argument persuades (See that it not error to the standard instructions. give our conclusion is Osband, 709.) Cal.4th at People supra, p. Failure to is not unanimity instruct as to
g. required evidence. mitigating *99 contention, to the court to
Contrary required instruct that is not before a unanimity consider evidence required juror may to be v. Breaux 1 Cal.4th mitigating. (People 314-315 [3 Moreover, 585].) 821 P.2d he did not that instruc- Cal.Rptr.2d request tion, 8.84.2, and CALJIC No. the instruction of which was not complains, It would not lead the to conclude that facts deemed misleading.49 jury only all 12 could be considered. The mitigating aggravating by jurors jurors been told: “Both the and the defendant are entitled to the already People individual of each At this opinion juror. must phase proceedings you each exercise moral your within the framework of the personal judgment instructions I am now to as to whether the giving you appropriate for the defendant is death or life punishment without the imprisonment flQ of is the possibility It of each of to consider the evidence parole. duty you for the of at a verdict if can do so. Each of purpose arriving you must you decide the case for but should yourself, do so after discussion of the evidence and instructions with the other jurors.”
This instruction was to inform the that each adequate jurors was weigh the evidence and at a arrive decision penalty individually.
h. Failure to instruct that is unanimity as to required aggravating evidence. contends that if it was not to instruct that
Appellant necessary jury was not as to factors because CALJIC No. unanimity mitigating required argument 49The instruction to which this is addressed stated: “In order to make a determi- agree.” penalty, jurors nation as to the all 12 must that must be instructed it follows they would not mislead jurors, 8.84.2 is before aggravating weigh- that factor unanimously agree that must is evidence. He that such argues unanimity it the mitigating ing against demanded the Fifth of a death verdict to ensure the reliability necessary Amendments. Eighth that a factor is aggravating statutory analogizes finding Appellant cases in enhancing allegations noncapital unanimity requirement jury are entitled to even 1158a), defendants arguing capital (e.g., §§ decision. in penalty more rigorous protection death, however, instructed, a judgement return “[t]o are so that the circumstances aggravating each of must be you persuaded circumstances, it that warrants mitigating with substantial comparison instruction is This death of life without possibility parole.” instead a death verdict as it makes clear to jurors ensure reliability adequate decision that evidence or factors that each must reach an individual those he or she deems are aggravating outweigh individual believes juror mitigating. testify.
i. Instruction on failure that, at the an instruction guilt phase contends having given to testify, from the defendant’s failure inference should be drawn no adverse that instruction at the suggested the court’s omission of penalty phase That an inference is at that trial such permitted. stage *100 comment on was reinforced by prosecutor’s suggests, implication, closing argument. failure to testify during comment, identified argument made no such however.
The prosecutor stated that “professes that in is which prosecutor he has done.” That comment was in remorse for what no words whatsoever understand, on to, the numerous occasions and the would so directed jury his initial state- others—from discussed the crimes with which appellant his interviews with psychia- officers arresting through ments to the remorse. he did not express trists—in which the same claim when the reasons we rejected
We this claim for reject instructions. with regard sanity phase raised by appellant burden proof, instructions on standard 8. to give of Refusal unanimous agreement. persuasion, evidence, a formal made of the phase At close penalty if the death penalty may impose motion for an instruction certainty to a moral doubt and a reasonable beyond “persuaded the mitigat- with in comparison are so substantial circumstances aggravating death is circumstances, justified penalty and that the imposition ing doubt and that “reasonable of this case” the circumstances and appropriate hesitation convinced are not without firmly is when you present punishment.” death is justified appropriate concluded that have should other states join contends we Appellant finds beyond death unless not return a verdict jury may capital factors and/or factors outweigh mitigating doubt that aggravating reasonable instruction contends that an He also that death is the penalty. appropriate in the to be penalty to articulate the standard of proof applied must be given phase. is instruction. Neither declined to either
We have require repeatedly at 20 Cal.3d v. (People Earp, supra, or constitutionally required. statutorily 709-710; Osband, v. 899; at People 13 Cal.4th supra, pp. v. People p. Medina, 782; at 6 Cal.4th Cudjo, supra, p. at People 11 Cal.4th supra, p. 634.)
9. Cumulative prejudice. instances misconduct contends prepenalty phase Appellant error, and misconduct he claims were made during as those errors well as we to the death verdict. Inasmuch contributed phase, together penalty misconduct, this claim also his claims of error and rejected prejudicial have fails. penalty.
10. Denial automatic motion reduction automatic motion for reduction of penalty Before on ruling 190.4, read stated that he had (§ (e)) (section 190.4(e)), subd. the trial judge recommendation. con- officer’s the probation report motion, that, trial court relied tends on the ruling improperly factor and misconstrued information in a officer’s report contained probation *101 threats of violence (b) occurring acts or including of section 190.350 latter commission The concede the the of the offense. People during capital and as a that suffered no consequence, but argue prejudice point, the report, referred to information in probation that while the argue judge it We While ruling. agree. that in inconsequential information determining of fact shall take into penalty, the trier provides 50Section 190.3 “[I]n factors, (b) presence or absence of following . . . any account of the if relevant: RD ftO force or attempted the use or use of activity by the defendant which involved criminal to violence.” Further reference express implied or or threat to use force or violence to factors found in section 190.3. specific factors is those 644 did mention information that was not
appears judge improperly information before the are satisfied that the had no effect on either jury, we his conclusions with to the individual regard aggravating mitigating circumstances or his ultimate conclusion that the jury’s findings sup- of the evidence and were not to the ported by weight law contrary evidence.
Section 190.4(e) that whenever a verdict of death has been provides returned, the defendant is deemed to have for modification of the applied that, It further in on the penalty. is provides ruling application, judge evidence, consider, account, “review the take into and be guided by circumstances . . . and shall a determina- aggravating mitigating make tion as to whether verdicts that the jury’s findings aggravating circumstances circumstances are outweigh law mitigating contrary (Ibid.) the evidence is to state the reasons for his or presented.” judge her on the record. did so here. Those refute findings Judge Finney findings (cid:127) claim that error in the procedure prejudicial appellant.
The court must review the officer’s probation report prior imposition sentence for offenses if the defendant is noncapital eligible probation. 1203, (§ (b)(3).) subd. Because it consider that was may' evidence before the on an automatic for reduction of a death ruling application 701, (§ 190.4(e); (1999) verdict v. Welch 20 Cal.4th 775. People [85 203, 754]), P.2d stated 976 we have court should neither Cal.Rptr.2d read nor consider a officer’s before on an probation report ruling application 349, (1998) for modification of the death verdict. v. 18 Cal.4th (People Kipp 716, 1169].) 383 P.2d Failure to defer reading 956 Cal.Rptr.2d report [75 Williams, is not however. v. 45 Cal.3d invariably (People supra, prejudicial, 1329-1330.) at pp.
In the course of on motions for a or to exclude venue ruling change matters, evidence and in other routine it is inevitable that a with dealing become is not will aware information that judge presented As an is judicial jury. aspect presumption duty properly nonetheless, the court we in other proceedings performed, presume, (1986) Mack knows and the correct and case law v. applies statutory (People 1026, 208]) and is able to distinguish 1032 Cal.App.3d Cal.Rptr. [224 facts, evidence, from and to admissible from inadmissible relevant irrelevant those facts which be considered recognize may judicial properly 664; Code, (1977) Court (Evid. Ross v. decisionmaking Superior process. § 727]; P.2d In re Contreras 19 Cal.3d 913-915 Cal.Rptr. [141 757]; (1975) 45 People Cal.App.3d Cal.Rptr. Ozene *102 905, 170].) 190.4(e) 27 A section proceeding 915 Cal.App.3d Cal.Rptr. [104
645 of the judge’s the same the source regardless is to subject presumption knowledge. 190.4(e) a ruling that is aware that section is
We a judge presume the the does to on the before Not jury. be based evidence solely 20, clear, the January that but to 190.4(e) of section make prior language here, 1989, denied we 190.4(e) motion was at which the section proceedings Williams, that Cal.3d at had v. People supra, page stated mot court’s of such is not determination relevant probation report to court that the judge Absent evidence the the will assume contrary ions.51 the the of which he was not influenced material that was before by the v. (People became aware other through probation report proceedings. Cain, Welch, 701, 775; at v. 10 Cal.4th p. 20 Cal.4th supra, People supra, 81.) the that were
The trial court here did to matters in probation report refer of fire- not before the trailer “was a virtual arsenal jury—that appellant’s crimes; arms”; had to these that use in gun purchased defense; that the of funds for his about complained adequacy but wrong defendant had told the officer he knew his conduct was probation it; to do believed it was all because he was commanded God right force had been the that the cuffs such used in FLEX-CUFs tightening the record were the size of a wrist.52 We must therefore examine “to mate- determine whether the court have been influenced by may improperly 383.) rial at We are (People in the v. Cal.4th report.” Kipp, supra, p. this the recitation of the reasons for assisted in trial court’s thorough to the death verdict. denying application modify 190.4(e) Before the court made statement in making ruling, section The court some of those to of counsel. response arguments incorporated remarks into his denial of the death modify for explanation application together, explana- verdict. Considered the court’s remarks introductory tion make it clear that his consideration of material unmistakably did not influence the probation ruling. report improperly yet suggested reading probation is preferable procedure 51We had not that “the to defer (People report ruling for of verdict.” application until after automatic modification 892]) error Lewis 786 P.2d or that it was Cal.Rptr. 50 Cal.Sd 190.4(e) considering application. report read the before the section in the mobile- 52Presumably judge of the number and kind of firearms found aware receipt property apart probation report from the since listed on quite home Additionally, objected defense to the warrant he had issued. pursuant seized mobilehome of one of the interior of photograph admission into evidence omit photo cropped and it depicted judge firearms. The reviewed several portion. *103 the officer that The court’s that defendant stated to knowledge probation court, to do could not been The God was him what have telling prejudicial. of the heard the offered having testimony during sanity phase expert trial, and this information well claims in that regard aware appellant’s officer added other than the fact that the statement to probation nothing As discussed was consistent with statements to psychiatrists. appellant’s below, the court did not believe that believed that God was appellant also satisfied that actions. We are commanding condoning appellant’s of the the other did not influence the outcome consideration of evidence 190.4(e) section proceedings. about the funds for his
The reference to statement spent appellant’s in the court’s remarks and not referred defense was made introductory if in the The said there was again. judge anything probation report trial it comment about the way that disturbed him was appellant’s to defend him. The handled and whether or not sufficient funds were spent throughout court stated that defense counsel had served well appellant trial, and the could not recall any had done a they job,” judge “premiere to the extent had been an case in the where funds were county spent at trial. advantage Nothing conceivable attempt give appellant every 190.4(e) those remarks or the court’s of the denial of the section explanation this relevant to the motion that the court considered information suggests this decision or was influenced sentencing any way by aspect probation report. indicate that the circumstances of
To the court’s statements contrary. to modify the crime verdict and his denial of justified application that, remarks the stated while judge In his introductory, penalty. he had seen as a one of the least murder situations gory murders presented conduct was the most com- trial judge attorney, appellant’s “probably been in. There were evil course of conduct that I have ever involved pletely that had oc- no circumstances.” The court noted planning extenuating had to have in mind that curred a considerable of time. length over the FLEX-CUFs and have to rid of the get bought would chaperones with the way because he have to take life in order have might gun sense, I one of the most diabolical evil “In that think it was girls. schemes that I’ve ever seen in career.” my illness, did not that he stating the evidence of mental judge rejected did not believe
believe story psychiatrists, certain things, thought appel- God was him to do telling thought to use explain lant’s claim was a rationalization what wanted a tremendously egocentric The court believed his conduct. *104 “and create own your when religion you who constructed own person . . . this God, nothing tells to do is you then can dictate what that God you him, to that’s talking an that that’s not God than individual who knows else This was to his conduct.” he wants to use a rationalization of what explain The court then said: the sanity offered at phase. consistent with evidence do that Mr. Codding- the I not believe just “And so heard having testimony, do, to if he him what and the that God was telling ton was under impression schemes, I wasn’t, evil then that this the most evil of I’m correct was believe that it was.” firmly the the factors in mitigation,
Before addressing statutory aggravation to his statutory obligation stated that was acting pursuant judge expressly determination as set forth and was an making independent in section 190.4 that to the law “on evidence findings contrary whether jury’s to the jury.” was presented first 190.4(e)
In his of his section ruling, judge subsequent explanation to his (a)—the crime—referring addressed factor circumstances of back detail. He earlier conduct in mentioned remarks describing appellant’s twice and cited as the of the once purchase gun probation report minor in to source that information.53 Those references are so comparison that in the court’s the other events in the court’s recital we are satisfied conclusion, calculated, “callous, a and heinous that murders were so he scheme” which kill the women could willing “carry appellant desires,” the crime out his own and thus the circumstances of were aggra- circumstances, differed the court been vating would not have had unaware the statement in the bought gun probation report specifically for use in the The same is scheme assault true sexually young girls. court’s mention that had an arsenal of No used guns. gun was the crimes. factor. was irrelevant to ownership guns (b)—the or criminal factor absence of
Addressing activity presence defendant the use use court did err by or of force—the involving attempted factor, under use of force the murder considering during vio- which to other instances of violent conduct threatened refers only 945), and by failing lence Cal.4th at (.People Champion, supra, 9 p. force is that the absence of criminal recognize activity involving prior litany reflecting “purchasing 53The first in a of acts reference to firearm” included be if he preparations judge jeopardized believed indicated that knew lives would gratification. through plan young girls followed on his for sexual The second take “Further, lengthier: that his was a virtual arsenal of it’s worthwhile to note mobile home firearms, cite purchased gun specifically probation he had this crime. I page handgun been report possessed 12 for that.” Evidence that defendant one presented to jury. However, there mitigating. is no indication that the court considered appel- lant’s use of force the murders to be an during circumstance that aggravating was additional (a) to factor and “double counted” the nature of aggravating that conduct when concluding circumstances aggravating outweighed mitigating.
Appellant argues error did affect the balance because absent the error, (b) factor would have been considered an ab- mitigating—reflecting sence of violence or threats prior of violence—and would have been *105 weighed (c) such with factor which the court found was mitigating—the absence of erred, convictions. We prior felony that the court agree but not that this error affected the balance of and aggravating factors in mitigating the court’s on the motion for ruling modification of sentence. The court’s other remarks make that clear. it
Additionally, was the court’s during (b) statement about factor court made the italicized reference to information that was not before the used jury: such force in the two older strangling “[H]e women with the Flex-cufs that Detective O’Brien described the those Flex- circumference of as being approximately a human One wrist. can hardly size cufs of a more imagine violent or sadistic act than strangulation.” Consideration of this however, information could not have been in the court’s prejudicial, conclusion that had in violent appellant engaged criminal acts. The remnants evidence, of one of the FLEX-CUFs were in as was a of Walsh with photo neck, the FLEX-CUF around her and the medical examiner had described the means which the murder victims by were That strangled. in violent criminal
engaged acts was established the evidence and clearly by conceded effectively at the by appellant We see no penalty phase. possibility that the court have may considered conduct appellant’s more aggravated because of Sergeant O’Brien’s of the used FLEX-CUF than he description did on the basis of the evidence at simply trial the manner in regarding which the victims were killed and the the effect of photographs depicting FLEX-CUF. (d)—whether factor or not the
Discussing offense was committed while the defendant was under the influence of extreme mental or emotional disturbance—the stated that in his 20 of judge involvement with trial years cases, of criminal he had “never seen a more and complete exploration of issue mental status.” He exposition concerning his view that expressed of claim that he jury’s rejection was insane at the time he appellant’s committed the crimes was correct. The court acknowledged had been emotional disturbance occasioned the excitement suffering event, but, concluded, the court this not the of emotional type referred to his initial Legislature. judge disturbance contemplated remarks, the defendant’s “claim and that he did not believe again stated There was of his of God.” under the commands concept was operating statements to psy- other than own no evidence independent “his actions Evidence that “flighty” chiatrists. did severe emotional bizarre” before the crimes not indicate somewhat just of God or mental He made no mention voices or mental distress. self-centered being when he confessed to the Unless police. aberration duress, or mental insanity constituted a form of legally cognizable egocentric this factor. “The Court mitigation the court found no basis under testimony that the evidence including psychia- finds specifically under do that the Defendant was insane or acting trists demonstrate [szc] death to emotional as to reduce the from such or mental distress punishment weight The court further found “that the life without possibility parole.” that this not then does findings, evidence jury’s supports constitute factor.” mitigating (f) (h)—whether court as to reached the same conclusion factors committed
the offense was the defendant reason- under circumstances which *106 conduct, to or believed a moral or ably justification be extenuation his whether the of the to the of his defendant capacity appreciate criminality of conduct or to to the law a result conform conduct was impaired defect, disease or no of intoxi- mental or intoxication. There was evidence the cation and stated that he did not believe that judge again appellant that he believed with moral acting justification. the (e)—whether
Factor the victim in or consented to participant absent, homicidal conduct—was found to be as was factor totally (g)— under or the of whether acted duress domination another person. The stated once that he did not statements judge again appellant’s believe God and directions about the of God. the the considered at time of offense judge age appellant’s (i),
be factor the defendant mitigating under and as (j)—whether factor an would or minor factor accomplice participant—stated if not be but found it was not therefore mitigating present, present mitigating. extenuate of
The court found no other circumstance would the gravity (factor the crime that he believed course of conduct was (k)), stating such an evil that there no circumstances that would nature were extenuating absent diminish crime. The factor was and thus gravity mitigating. court then concluded verdict jury findings supported evidence, all the and found after review of weight independent
evidence that the verdicts and jury’s were not findings the law or contrary the evidence. that, had the
Appellant argues court not considered the information probation it have report, might given greater to the evidence of importance mental disturbance. He also claims that the court ruled as it did because of the nature note, of appellant’s however, beliefs. As religious People did not judge factor, less simply give (d) factor as a weight mitigating disbelieved the evidence that acted under emotional or mental disturbance. The rejection claim was not based on the nature of appellant’s religious beliefs. The court did not believe simply appellant’s claim God, God, believed that condoned or directed actions. appellant’s
The court found two mitigating circumstances: at the appellant’s age time of the offense and the absence of In prior felony convictions. light heinous, the court’s calculated, remarks regarding and evil nature of conduct, we see no that had possibility the court not considered information in the probation report, considered the absence of other crimes of violence to be those mitigating, circumstances would have been found to outweigh aggravating circumstances or be a basis for a verdict conclude, therefore, less than death. We that the errors of which appellant were not complains prejudicial. Lewis,
In People 266-267, 50 Cal.3d at supra, pages which appellant relies for his assertion that consideration of this extraneous matter was the information prejudicial, in the which the *107 probation court consid- report ered was about the defendant’s juvenile record and his involvement in a homicide, prior information which influenced the court’s conclusion that evidence aggravating outweighed This is not the mitigating. case here. Rather, Welch, in People v. 20 at supra, Cal.4th page while the court did make reference to the we are that probation report, satisfied the irrel- evant matters therein did not influence the on the ruling motion to modify the death verdict.
D. Other Issues.
1. Shackling. Defendant was restrained irons the by leg throughout trial. Counsel had but crimes, the ruled that objected, judge of the nature the light the district instruction attorney’s that the defendant be treated aas risk while being and the bailiff’s transported, he would the request, restraint. permit
651 during argument, trial counsel penalty phase on a statement made Based was restraint.54 Because there was aware asserts the jury appellant restraint, his due he argues, reason for the need or compelling no manifest were violated. confrontation clause rights process not the record does the restraint was unjustified, Assuming Absent of the restraints. evidence claim that the was aware jury support is error harmless. was restrained that the was aware jury Cal.Rptr.2d Cal.4th 583-584 Tuilaepa (People basis of a statement by on the 1142].) solely We will not assume P.2d of trial and in after months argument made during phase counsel penalty taken during counsel trial precautions absence of any complaint aware were ineffective to avoid prejudice of, restraint. or influenced by, selection, court raised at the beginning
When the subject irons, that if handcuffs not handcuffs. He also directed authorized but leg he should be into courtroom brought used in transporting appellant, after left. The bailiff assured before the arrived and removed jurors and in the during been to use handcuffs transport court that the practice court, out of view of not in and that make sure he’s elevator but “[w]e him no that this take out.” There is indication first before we jurors trial, made no further not and counsel throughout followed practice manner in which the restraints were used. complaint objection Moreover, the basis of one or error is not established simply prejudicial v. Tuilaepa, the defendant in shackles. having (People more seen jurors 584.) at Cal.4th supra, p.
2. Claims. Ineffective-counsel bases than above rejected support offers several other those constitutionally of his claim that his trial counsel did afford adequate representation. under assistance of counsel
To establish ineffective constitutionally counsel, must the state or federal constitutional right either *108 level fell an (1) objective demonstrate that his below attorney’s performance reasonableness, i.e., was not within an objec- that counsel’s performance to be thus did not meet the standard level of reasonableness and tive here, 54“Now, day up, he’s Coddington every into court chained you’ve seen Herb come it, fate, God, on this side of you people or want to call reason whatever some . . happens to him. . And we called to determine what upon the Bar in this room have been his life. up. up be for the rest of natural say you should be chained He should chained again.” society roam in ever He should not be allowed to 652 of a
expected reasonably (2) competent that he attorney, suffered as a prejudice result of that failure. Prejudice is established if there is a that, reasonable errors, absent probability counsel’s the result would have (Lockhart been different. v. (1993) Fretwell 506 U.S. 371 S.Ct. [113 838, 843-844, 180]; 122 L.Ed.2d Strickland v. Washington, supra, 466 U.S. at 687-688 pp. 2064-2065]; Ochoa, S.Ct. at v. pp. People [104 supra, 19 414.) Cal.4th at We have p. these applied standards in several of rejecting appellant’s ineffectiveness of counsel claims. addition, however,
In when the reason for counsel’s action or inaction is record, on the apparent the court will determine whether that reason reflects reasonably competent an performance by as a attorney acting conscientious advocate. If diligent no an explanation appears, ineffective counsel claim bewill rejected unless the was asked for and attorney did not offer an or there can be explanation, Osband, no satisfactory explanation. v. (People 13 Cal.4th at supra, 700-701.) In pp. other cases the is left to on habeas remedy where evidence corpus outside the record shed may light on the reason for the action. attorney’s
In assessment of trial counsel’s conduct of a criminal defense we are mindful of the admonition of the United States Court that Supreme we must make effort “to every eliminate the effects of distorting hindsight, to reconstruct conduct, the circumstances of counsel’s challenged and to evaluate the conduct from counsel’s (Strickland at the perspective time.” v. Washington, 466 supra, U.S. at 2065].) S.Ct. at p. burden is p. [104 on an who challenges of his or her trial competence counsel to that counsel’s conduct presumption overcome is within the range (Ibid.; reasonably professional assistance. People v. Earp, supra, 20 Cal.4th 896.) at p. mind,
With these standards in we address the remainder of appellant’s ineffective counsel claims and conclude that none has merit.
a. Failure to make Fourth Amendment-based objections.
To make a showing constitutionally inadequate representation by counsel when failure to seek of evidence on a Fourth suppression Amend- ment is asserted as the ground claim, basis for the ineffective counsel must establish that the party Fourth Amendment claim had merit and that it is that a different reasonably probable verdict would have been rendered had (Kimmelman evidence been excluded. Morrison 477 U.S. 2574, 2582-2583, S.Ct. 305]; Godinez, 91 L.Ed.2d Mason v. supra, 855.) F.3d at claim that counsel should p. Appellant’s have argued *109 a warrant lacks in order to getting FBI an avoid emergency manufactured in seeking no unjustified delay that there was merit. The evidence confirms trailer, only broke into appellant’s of the the FBI agents a warrant. As time of the investi- had one missing, after the victims been reported three days adviser, as legal who acted agent had contacted Sacramento gating agents information, adviser’s legal opinion and obtained described the available had then been The agent cause to obtain warrant existed. probable instructed, of the United to contact office according to FBI procedure, cause. on Instruc- to obtain a formal legal opinion probable States Attorney in the Magistrate United South had been to contact States given tions if a warrant and to he would be available to execute Lake Tahoe area see if was could be to him. The call the United States Attorney made application the FBI to conclude made because led ensuing agents not developments FBI did not that an immediate entry necessary. precipitate those manufacture developments.
b. Treatment Hacker’s statement. alleged Allen FBI trial counsel had a argues copy “undoubtedly” in with Allen Hacker McKevitt’s interview Agent regarding report which, testified, often McKevitt Allen Hacker told McKevitt that appellant killing read Anarchist Cookbook and seemed interested in women. Therefore, before Allen counsel should have argues, anticipated, calling witness, defense would offer McKevitt’s Hacker as a prosecution statement in rebuttal. Counsel should have admissi- sought ruling of McKevitt’s before Hacker took the stand. bility testimony coun- This is no more than an invitation to trial second-guess argument above, defense an effort sel’s tactics. As their appears primary not They obviously that the murders were premeditated. persuade Allen testimony dispel any impli- believed that Hacker’s important not cation to that effect statement. We will opening prosecutor’s record that the in this We cannot on this second-guessing. say engage type Moreover, not elect. tactic chosen was one that counsel would competent even were we conclude the extensive evidence of light premeditation, have that a different would reasonably otherwise it is verdict probable not been heard testimony been reached Hacker’s McKevitt’s jury.
c. Failure to to or cure misconduct. object prosecutorial misconduct To the claims We. have above. rejected appellant’s so, considered might cited as misconduct be extent instances *110 however, we note that “mere failure to object . . prosecutorial argument. rarely establishes on the of incompetence defense counsel in the part absence of some on the explanation record for counsel’s action or inaction.” (People v. Samayoa, supra, 855.) Cal.4th at p.
That is true here.
d. Failure to rebut sanity phase evidence violent nature. The same standard objective for assessing of counsel competence at the applied is guilt phase to claim of applied ineffective assistance at the of a subsequent trial. phases (People v. Samayoa, 15 Cal.4th at supra, p. 855.)
Dr. Mills testified on cross-examination by at the prosecutor sanity Wiseman, that Carol phase a former girlfriend told him that appellant’s, was sometimes appellant physically when and had intimidating angry fright- ened her. The claim of incompetent representation is based on trial solely failure, so, counsel’s after the court had ruled could do out that bring Wiseman had also said with regard crimes that charged she person knew would not have done them and must have been insane appellant if he did them.
The record offers no explanation counsel’s decision not to proceed manner, and thus is not a basis for that counsel had no concluding event, reason. In satisfactory there could have been no All prejudice. witnesses testified that expert the incidents with Wiseman or Cluff had no relevance to their diagnoses. e. to be Allowing absent during penalty phase closing defendant
argument. Again with the appellant, benefit of asks the court to hindsight, second- counsel. It guess was not enough to dissuade they attempted from appellant himself absenting from the penalty asked the court to phase argument, counsel and conferred with appellant, after the appellant again court did so. Counsel should have done more. should have asked the They court to engage in a and should dialogue, have that the court objected was present- an ing appellant with unconstitutional and unnecessary choice. The court should have been asked to restrain the prosecutor’s inflammatory style should have been offered the to remain and opportunity request recess if that became necessary.
The record confirms that the court and counsel did all that could reason- be ably this situation. The expected had not assumption he became too upset if could be that a recess requested been told counsel style the record. The prosecutor’s is not supported control himself to the type was not subject bounds and *111 not exceed did permissible argument him. to avoid upsetting simply by appellant restraint now suggested of prior argument. f. penalty phase Inadequate agree and do not argument the phase We have reviewed penalty the Sixth and demanded by it short of the quality that fell with appellant that a here is the his argument For most part Amendments. Eighth is not have been made. This could argument or different phase better penalty Mincey (People ineffective assistance. constitutionally a basis for finding also 388].) P.2d Appellant (1992) 2 Cal.4th 471 Cal.Rptr.2d of it that absence prior did not make clear that trial counsel complains if he be even mitigating could considered criminal conduct in past violent that not acts or that mental illness was nonviolent criminal had committed that unlike many But counsel did argue “extreme” could be considered. cases, felony had no convictions. With respect prior capital illness, that that the had found counsel acknowledged jury mental that he that could nonetheless argued say not insane and the jury legally to remember urged he the crimes and jury when committed “crazy” a severe and prolonged all that he suffered five believed psychiatrists not occurred. which the crimes would have mental defect absent in the argument. received adequate representation penalty phase Appellant instructions. Deletion g. mitigating factors from (f) from (g) that the court should delete factors Trial counsel agreed (f) Factor mitigating factors. aggravating the instructions describing “[wjhether the offense was committed or not jury directs the consider to be a believed moral reasonably which the defendant under circumstances asks or extenuation for his conduct.” Factor justification (g) “[w]hether the substantial duress or under the defendant acted under extreme not domination another person.” not have had reasonable that counsel could
The record does suggest if mitigating only that decision. Since factor is tactical reason for counsel may conduct is morally justified, believes the reasonably defendant Even assum- be harmful. that reference to factor would have concluded decision, however, fail to see we reason for the counsel had no tactical ing of these factors from the omission prejudiced by how instructions.
h. jurors. Failure to poll death, When returned its jury verdict asked court counsel whether wanted the juror Defense counsel polled. responded simply The court asked if the answer was no and counsel “No.” responded “[N]o.” He did not be request when the polled earlier verdicts were returned. contends that this omission failure poll circumstances, when jurors they returned guilt, special penalty phase verdicts reversal since a defendant requires has an absolute right, conferred section to have the at the either polled request party. Polling, is argues, necessary safeguard right defendant’s to a unani- coerced, mous to ensure no jury, has been juror and to ensure *112 verdict is not mistaken.
As appellant recognizes, this claim is an assertion that actually counsel’s failure to request constituted poll ineffective assistance counsel. He however, is unable to establish as this record prejudice, does reflect that of the seeks to dangers avoid polling occurred. actually 3. death Constitutionality statute. penalty Appellant contends that the California death statute is constitu- penalty on tionally invalid numerous (1) failure to grounds: require explicit jury findings on factors in mitigation (2) and aggravation; discre- prosecutorial decisions; in (3) tion review; lack charging of comparative (proportionality) (4) failure to narrow class of offenses meaningfully rendering defendant’s offense and more death-eligible; (5) the specifically multiple-murder special 190.2, (§ (a)(3)) circumstance subd. fails to narrow the meaningfully class for the persons eligible death This court penalty. has repeatedly rejected 1016, first four challenges to the law v. (People (1999) 21 Cal.4th Carpenter 607, 531]; 1064 988 P.2d v. Cal.Rptr.2d People [90 20 Cal.4th Earp, supra, 904-905; 1017; at v. pp. People Smithey, 20 Cal.4th at supra, v. p. People 799, (1996) 13 347, Marshall Cal.4th 866 P.2d 1280]) Cal.Rptr.2d 919 [55 United States Court Supreme murder as a recognized multiple 231, factor in narrowing 546, U.S. Phelps 484 246 S.Ct. [108 Lowenfield 568].) 98 L.Ed.2d 4. Sentencing error. claims that remand for on counts is resentencing noncapital because, term, while court stated reasons
required for imposing upper the court failed state its reasons for terms or for imposing consecutive under section sentencing 667.6 instead section 1170.1.
We court’s statement of disagree. reasons to demon- adequate strate that the court was aware that the choice to sentence under section con- the decision impose choice from sentencing separate 667.6 was secutive terms. (1983) 34 v. Belmontes (People That is all that is required. 686].) P.2d Cal.Rptr. Cal.3d
Ill
Disposition is affirmed in its entirety.
The judgment J., Chin, Brown, J., J., J., concurred. Werdegar, C. George, MOSK, I dissent. J.— death, on the sentence of including
So far it imposes punishment, cause this Coddington, judgment depends Herbert James court him That the verdict sane. jury’s finding superior soundness misconduct, error, on the bearing and the engaged committed prosecutor such the fact. Whether majority establish sanity issue of is undoubted. The majority give caused is the error and misconduct prejudice question. *113 I would an give the record on answer. After negative reviewing appeal, affirmative one. California, held in decisions of as we have
Under
the State of
law
685,
(1985)
704
Cal.Rptr.
v. Skinner
pp. People (1988) v. Stress 205 1272-1274 Cal.App.3d 913].) He need be Cal.Rptr. of incapable [252 moral distinguishing Skinner, 777-784; right from moral wrong. v. at (People supra, 39 Cal.3d pp. Stress, see People v. supra, 1272-1274.) 205 at Moral Cal.App.3d pp. right and moral refer to wrong as defined right wrong norms positive comprising “society’s standards” behavior v. generally accepted of (People Stress, 1274; supra, 205 at see v. Cal.App.3d Kelly (1992) p. People Cal.4th 385]), 534-535 822 P.2d Cal.Rptr.2d depend shame, their remorse, enforcement on the “operation feelings and guilt” (Hart, 84). of Law A Concept is p. person incapable recog- nizing conduct is if he believes specified morally wrong that he is Skinner, commanded toGod therein. participate (People supra, 783-784; Stress, Cal.3d at see pp. People v. at supra, Cal.App.3d p. 1273.)
The trial of the issue of in this case was sanity one of most complex that I extensive have ever examined. It one was also of the closest and most vigorously litigated. Quantitative measurement supports qualitative characterization. The reporter’s oral on transcript sanity proceedings 1,700 fills almost of the oral pages—exceeding reporter’s transcript combined. proceedings guilt penalty
Coddington called stand three who examined him psychiatrists Mills, M.D., M.D., on his Rosenthal, retainer: Mark J. Fred and Joseph Satten, detail, M.D. each testified at and in They length inter concluding, alia, that he was severely ill. mentally
For their called to the stand part, People two other who psychiatrists *114 had examined under the Coddington court’s Bruce T. superior appointment: Kaldor, M.D., Bittle, and Robert M. M.D. too each testified at They length detail, alia, and in inter that he was concluding, ill. severely mentally each went on to Coddington’s that he was insane. psychiatrists opine They concluded that he was of right moral from moral incapable distinguishing did wrong. so because concluded that he that They believed he was authorized and indeed commanded God to act did as he through “signs” that he discerned in traffic and in certain lights numbers. contrast, the each to
By went on that People’s psychiatrists Cod- opine was Kaldor dington sane. Dr. belief about the rejected Coddington’s “signs” from God: he deemed God and of notion of Coddington’s conception to be somehow Dr. Bittle morality insufficient. also rejected Coddington’s belief about the from God: he deemed belief a “signs” to be Coddington’s in He did so least to himself. his conduct at to justify mere rationalization that” . the he “did not . . have impression of admission that his spite . . . “was in general instead that he but “felt” “was Coddington lying,” straightforward.” the of Coddington’s in of opinion
There much evidence support was insane, that of the People’s in to that he was and opposition psychiatrists facts the and indisputable, Among undisputed, he was not. psychiatrists obsession and Coddington’s long-term pathological these: In of spite are of he mastur- a of the number times log sex—for he years daily with kept and bated, Alecia T. did not assault sexually a of 38—he revealing high did and so only all and of their days captivity, Monica B. at on the first third a He was hardly in a limited fashion. relatively on the second and then only Further, and in of his long-term pathological sexual predator. spite simple culminated Martin in his murder of Mabs obsession with violence—which as the became girls became passive and Walsh—he Dorothy progressively a He was hardly over course of incident. aggressive progressively violent thug. simple of
But there was also much evidence in of support opinion sane, of to that Coddington opposition People’s psychiatrists that was not. Among undisputed, indisput- his own psychiatrists able, to He often lied intelligent. facts are these: Coddington extremely to his He had powerful others in order serve own interests. deceived examined him—to avoid motive lie and deceive the who psychiatrists do so success- opportunity sentence of death. He also substantial through inquiry him fully—the provided process repeated experience toward sanity to tailor from away allowed him attempt responses insanity. say jury’s we can confidence light foregoing,
In with its determination of the issue of assessment sanity depended can and the We Coddington’s relative credibility psychiatrists People’s. the narrow turned on also with confidence that assessment say jury’s be must whether Coddington malingering—a question question Bittle, close Dr. one of People’s considered admission light *115 “felt” that did that but Coddington “lying,” he not believe psychiatrists, . in . . general straightforward.” instead that “was establish, for the vouching the court erred by the superior As majority over it had whom appointed, of the People’s psychiatrists, “impartial[ity]” him owe by purportedly that of who are retained “party” psychiatrists attestation The court’s Coddington’s. inferentially, “allegiance”—including, 660
was erroneous. It was (1992) v. reasonably likely Clair 2 Cal.4th (People 629, 564, 663 Cal.Rptr.2d 705]) 828 P.2d to have been understood the by [7 anas to contrary (1952) decisional v. expression, (e.g., law Cole People 253, 113 261 P.2d Cal.App.2d J.); v. (per Dooling, People [248 141] Ramirez 842, (1952) 113 307]), 855 P.2d Cal.App.2d of the court’s personal [249 or belief knowledge that was the at beyond evidence admitted the trial sanity and hence the to beyond consider and It jury’s ability weigh. was also on the facts misleading of this case. So far as the record on appeal gives any indication, the were no People’s more than Cod- psychiatrists “impartial” or either on dington’s, generally the narrow and close specifically question of malingering. establish,
theAs also the majority court erred superior by allowing to prosecutor cross-examine and to in Coddington’s psychiatrists, argue summation, regard with to certain of whom psychiatrists, they gener- aware, not who had ally earlier examined on retainer but Coddington were not called him to by the stand. The court’s allowance erroneous. It violated the work rule of section product 2018 of Code of Proce- Civil It dure. was misleading also on the facts of this It case. permitted prosecutor lead believe the uncalled would psychiatrists sane; have testified that Coddington their would testimony have been sound because it would have been based on examinations that were crimes; closer time to and that the testimony Coddington’s psychia- trists was unsound because it was on based examinations that were farther in time from crimes and that were by not informed the results of the earlier ones. The on record contains little appeal concerning testimony what uncalled psychiatrists would have what it given. little does contain But would suggests not have testified that they Coddington was sane. For it had even not suggests examined him on issue. well,
As the establish as majority misconducted himself prosecutor Satten, intentionally eliciting testimony cross-examination of Dr. one of Coddington’s to the effect that did have a psychiatrists, People right have defendant aby examined without his pleading insanity psychiatrist consent, and the court erred superior evidence in the form of admitting such Evidence testimony. such was inadmissible be- concerning any right Code, (Evid. 350), cause it was irrelevant and it was it irrelevant because § had no in reason fact tendency (id., 210). material prove disprove § For a to elicit such prosecutor intentionally evidence is misconduct. (E.g., 936, v. 20 Cal.4th People Smithey P.2d Cal.Rptr.2d [86 1171].) For a court to admit such is People Poggi evidence error. (E.g., (1988) 45 Cal.3d 1082].) 753 P.2d Cal.Rptr. evidence was also on the facts of case. question misleading this As
661 782, 786-787 (1973) 31 Cal.App.3d v. Danis People held in Court of Appeal relied the prosecutor expressly decision on which Cal.Rptr. [107 675]—a right did indeed have People outside of the presence jury—the without a examined insanity psychiatrist have a defendant pleading event, his course, But in that not might cooperate. Of the defendant consent.1 (Cf. v. People him evidence. against could be introduced noncooperation 834, 1148, P.2d 832 (1992) Cal.Rptr.2d 2 1190 146] McPeters Cal.4th [9 an issue condition as his mental with defendant who [dealing “tendered] that, indicates trial].) The record on appeal in phase” capital penalty he to exercise the right question, took steps although prosecutor seems did not follow through did do so. That he actually not apparently he would Coddington he and had cooperated, clear: Had exercised right, right, did not. Had he exercised have an examination—which he obtained he have intro- would Coddington surely sought and had not cooperated, Why he not. he him as evidence—which did against duce his noncooperation learned, from their reports, did follow also seems clear: Having not through court, Bittle, had each had been Drs. Kaldor and who appointed sane, them and he could rely formed the Coddington upon opinion to retain a their and hence had no need psychiatrist “impartiality,” purported He he was disabled from subjecting of his own. led the to believe that been, examination, that, to a but if he not Coddington psychiatric would been able to call a testify Coddington have psychiatrist sane terms those of the Drs. Kaldor stronger even than “impartial” however, so, did basis. Bittle. He without altogether miscon- court’s errors Having surveyed superior prosecutor’s duct, must The answer we now address this Were question: they prejudicial? that I would is: Yes. give 818, 243], (1956) 46 P.2d there
Under v. Watson Cal.2d 837 People [299 is is a that error or miscon- when there “reasonable prejudice probability]” when duct There a reasonable probability contributed to the outcome. is such chance, there than an abstract possibility,” is a reasonable more “merely (1994) v. 8 Hospital an of this kind. Inc. Court (College Superior effect 898, 704, 894], italics in see original; 715 882 P.2d Cal.4th Cal.Rptr.2d [34 68 (1997) Co. Cal.4th Aerojet-General Indemnity Corp. Transport 909].) P.2d Cal.Rptr.2d [70 at least a I believe that there is
After the record reviewing appeal, that, court’s if individually, chance cumulatively superior reasonable verdict contributed to jury’s and the misconduct errors prosecutor’s sane. Coddington finding 1866,1874-1875, 68 L.Ed.2d 465-466 S.Ct. 1See Estelle v. Smith U.S. holding). (citing decisions so
359] *117 662
First, the court’s erroneous for the superior vouching of the “impartiality” over of People’s psychiatrists increased the Coddington’s improperly latter, of the former the and decreased that of both and credibility generally on the specifically narrow and'close of It also did so question malingering. inasmuch as the record on unfairly, no gives indication the appeal more were than People’s psychiatrists either “impartial” Coddington’s is true regard. It that the “jurors were instructed that the sole they the of of a witness judges and the to be to believability weight given [his] ante, . . . .” at But it testimony (Maj. 616.) is also true that opn., p. “jurors are to find and to eager follow hint of quick the as to supposed judge how Cole, 261; should” they (People v. 113 at proceed. supra, p. Cal.App.2d accord, Ramirez, v. People supra, 855.) at is That because Cal.App.2d p. rely with on “[j]urors great confidence the fairness of and the judges, upon of their correctness views trials.” expressed during (People Mahoney Cal. 607].) 626-627 P. Second, the court’s superior erroneous allowance of the prosecutor’s cross-examination and uncalled argument relating Coddington’s psychia- trists increased the the of improperly credibility People’s psychiatrists decreased of both on Coddington’s, generally the specifically narrow and close question It malingering. permitted prosecutor magnify on believability People’s psychiatrists malingering, by their bolstering testimony with of the uncalled “nontestimony” psychia- time, trists that was sane. At the it Coddington same permitted prosecutor to minimize the believability of Coddington’s psychiatrists on insanity, by their as later attacking examinations than of the those uncalled psychiatrists informed as not their results. And so it did since it unfairly, appears from the record on that the uncalled appeal psychiatrists even examined on issue of Coddington That the much from sanity. heard ante, “who did at psychiatrists testify” 606) (maj. p. only high- opn., the fact that lighted it heard at all those nothing from who did not. Third, the misconduct in prosecutor’s inadmissible intentionally eliciting . evidence on nonexistent to a People’s purportedly right psychiatric of a examination nonconsenting defendant and the pleading insanity, supe- evidence, rior court’s erroneous admission such are similar in effect to the error uncalled concerning That is Coddington’s say, they psychiatrists. increased the and de- improperly credibility People’s psychiatrists creased that of both Coddington’s, narrow generally specifically so, and close question malingering. since—as the Unfairly prosecutor but, did indeed himself knew—the have right People question, judge from record on declined to exercise it for of their reasons appeal, own. Certainly, were not disabled from to a Coddington subjecting aware That the himself. “jury examination by Coddington psychiatric testi- . who examined . . five that” “had been Coddington psychiatrists three, ante, owed him 612)—his the court implied who fied” at (maj. opn., p. *118 two, retainer, the court and the who People’s because of his “allegiance” have hardly because of its stated were “impartial” appointment—could a examined the that he had not been caused the fact ignore own choosing. of the People’s psychiatrist above, a there is at least out I conclude that
In view of all that is set the errors and prosecutor’s reasonable chance the court’s superior misconduct, Coddington to the verdict finding contributed jury’s together, is chance that such errors For I conclude that there at least reasonable sane. the and affected the assessment of relative jury’s misconduct marginally of on the narrow and credibility Coddington’s People’s psychiatrists and hence affected marginally jury’s close of malingering, question determination, did not but necessary, Coddington implicit consequent he did of the that he was insane because evidence prove by preponderance malingering. not to that standard he was not disprove I That is contrary. so conclude in of spite majority’s argument law, and at at some on the they stumbling points because fail persuade, facts, minimize on the the crucial matter others attempt assessment of the relative of jury’s credibility Coddington’s psychiatrists and the on the and close of malingering. narrow People’s question
As to facts: made some admissions Although Coddington command that God did not him to plan psychiatrists People’s crimes, to execute he that He did command him consistently stated indeed them, that He gave a combination of through “go” “signs” “stop” Hence, be liable did not “signs” criminally He give. although might be liable criminally for the at issue—he would not planning—which for the execution—which was. not Coddington’s It of no whether or
As to
law: was
consequence
would
of mental disease or defect.
answer
crimes
the product
the so-called
test of
which
insanity,
be relevant under
surely
product
of
laid down in
States Court of
for
District
Columbia
United
Appeals
1954)
F.2d
D.C.
(D.C.
Durham v. United
Cir.
862
App.
States
[94
1430],
abandoned in
States v. Browner
45 A.L.R.2d
United
subsequently
bank).
(in
(D.C.
1972)
Cir.
471 F.2d
D.C.
App.
product
1]
[153
of
test, however,
similarly
law
this state. It was
has never been the
God might
of
have
no
what
consequence
Coddington’s conception
matters,
mattered,
is
“God”
and still
is that
been. What
person’s
authoritative,
ultimate,
standards
source of norms comprising
and ultimately
(See
Skinner,
of behavior.
39 Cal.3d at
People
supra,
783-784.)
pp.
it
Neither was
of
what
notion
consequence
of
Coddington’s
morality might
now,
have been. Then and
aif
that he
person believes
is commanded God
does,
to act
be,
as he
whatever his views of morality
he is
of
might
incapable
that his act is
is the
recognizing
morally
That
wrong.
square holding
Skinner,
dealt
which
with a defendant
“held” a
. .
who
“belief
. that the
vow ‘till death
us
marriage
do
on a
part’ bestows
marital
a God-
partner
given
to kill the
right
other
who
violated
partner
has
or was inclined to
violate
770.)
the marital
at
vows.”
In
p.
its
Skinner
support
holding,
{Id.
Justice
quotes from
Cardozo’s
opinion
Court
State of
Appeals
“
New
York in
v. Schmidt
People
For the reasons would I reverse judgment as to sanity remand the cause to the court penalty, for superior proceedings herein, inconsistent with the views expressed including retrial of issue of sanity. J.,
Kennard, concurred. 27, 2000, was denied Appellant’s petition rehearing September Mosk, J., Kennard, was modified read as above. opinion printed J., were of the be opinion should petition granted. Dr. Mills testified that but notes acts of he There- appellant. about violence when interviewed inquired prior fore, he had such an on the before asked about incident appellant day 38Although agreed portions of the to be parties previously transcript sealed were this regular reporter’s transcript, pages part included in the these are of a volume that reached them, are transcript. appellant court as a sealed Inasmuch cites and relies on we satisfied longer no them that he considers confidential. testified, had described the Puerto appellant Rico incident which appellant self-defense, said was an act of and the information did not affect Dr. Mills’s time, however, Had he had opinion. more he would have the matter pursued further, as information about any past significant acts of violence was potentially relevant. witness, that examination Following stated that he judge could not conclude incident, whether had told Dr. appellant Mills about the counsel would be permitted into whether inquire had told the appellant about the experts Puerto Rico incident and another incident in which appel- lant had his hands around the throat put Cluff. Kelly When the before Mills experts questioned Dr. testified that jury, he believed he had asked about acts of appellant violence and prior had, “in effect” told him “no.” That of information type would be important evaluation, an but making whether a was violent person have may nothing to do with whether the individual had a delusional disorder. When the asked Dr. Rosenthal prosecutor act, if had described a violent witness testified that had told him about a violent act precipitated